People who cannot afford lawyers (or in some cases paralegals) are at risk of not having their rights vindicated. Or they may not even try to assert their rights in the first place. A great number of ad hoc arrangements have been created to respond to this failure to provide access to justice, but the most systematic is the legal aid system. (I mentioned some of the other arrangements in a previous Slaw post and there are others.) Legal aid is not perfect — even with increased funding that has allowed it to offer legal aid to more people, it can still offer assistance only to people in the lowest income ranges and it does not offer assistance in all areas of law — but it is a crucial source of assistance for people who cannot afford lawyers. Ontario government intentions to cut back the increases to legal aid is a step back in access to justice and is likely to have practical ramifications for the broader system.
Currently the maximum someone’s income can be and still be eligible for legal aid is $17,731 (or $22,720 for domestic abuse cases), rising to just over $48,000 for a family of five (just over $50,800 for domestic abuse cases). Legal aid provides help in criminal law, mental health and Indigenous issues and community clinics provide service in an extensive range of areas: tenant rights, Ontario Works and Welfare, Ontario Disability Support Program, government pensions, immigration, employment insurance, workplace safety and insurance, Workers’ Compensation, employment rights, criminal injuries compensation and human rights. Legal Aid provides help in different forms (such as a toll-free telephone line) and may be provided differently in different parts of the province (see, for example, assistance with tenant law). Legal aid in Ontario runs family law centres that provide specific and limited services.
The 2019 Ontario budget refers briefly to “[s]treamlining the delivery of legal aid to promote long‐term sustainability to generate savings
of over $164 million annually, starting in 2021–22”, but fails to provide other details. This amounts to about 30% of this year’s legal aid budget of an expected $456 million. In particular, as the Globe and Mail reports, the Ontario government has told Legal Aid that it cannot use provincial funding for immigration and refugee services, part of changes the Ontario government is making to ensure that the federal government takes full responsibility for this area.
There have been various efforts to improve the situation for self-represented litigants in family law, such as Ontario’s Family Law Limited Scope Services Project, designed to promote partial services that provide litigants with help with some aspects of their case. More broadly, there is a greater push for unbundled services in other areas of law, as well, by the Law Society of Ontario, for example. The Canadian Judicial Council’s Statement of Principles on Self-represented Litigants and Accused Persons and Supreme Court of Canada’s decision to endorse them have placed a significant onus on judges to assist self-represented litigants. The National Self-Represented Litigants Project (NSRLP) offers a wide variety of resources to assist self-represented litigants and courts have posted information to help them navigate the court process (see, for example, the Ontario Court of Justice’s “How do I?” webpage.
The point is that regardless of these various ways in which potential litigants who cannot afford a lawyer are able to obtain some form of legal assistance, they remain at a significant disadvantage. Regardless of the ethical issues arising from this lack of access to justice, there are practical ramifications. Not only are these litigants at a disadvantage in court, despite coaching, duty counsel, judges trying to balance their obligation to be impartial with their obligation to assist unrepresented litigants, information posted on court websites about what to expect, and even more, because they cannot respond adequately to the unexpected, they do not know the law, they cannot read the language of law, they may be disadvantaged in other ways. For refugees, lack of legal assistance may mean they are deported and returned to ill treatment or death in their home country. However, the consequences for others may also be dire and difficult to change. Just one example: failure to succeed in an employment dispute may mean loss of housing; that may lead to loss of custody when the stress breaks up a family.
And there is also fallout for other parts of the system. When people experience stress from a failure to address their legal problems, for example, they make greater use of the health care system, thus increasing the cost to health care. Savings in public provision of legal representation is likely to show up in increased costs to other parts of the system. Thus one report prepared for the Canadian Forum for Civil Justice explains, “Over a three-year period the additional cost to the healthcare system as a direct consequence of people experiencing everyday legal problems is an estimated $304,274,643, based on a cost of $58.15 per visit.”
The government has not yet provided details about how the cuts to legal aid will actually affect the delivery of legal aid, except to deny the provision of services to immigrants and refugees. However, resiling from the provision of legal services for those who otherwise will have to navigate a maze of information and guidance, assuming they find it, will not only diminish an already imperfect and unequal system of access to justice, it will also add to the cost of other social services when fewer people are able to obtain help in resolving their legal problems.