Increasing Funding for Legal Aid Is Not Enough

Lawyers pushing for greater access to justice constantly fall back on the refrain that Legal Aid needs more funding. That might be true, but the real problem with access is the eligibility criteria for Legal Aid certificates.

This was illustrated recently in a recent criminal case in Toronto, R. v Moodie, where Justice Nordheimer reviewed a Rowbothom application. The Ontario Court of Appeal created a process R. v. Rowbotham whereby the right to fair trial can demand public funds be used for representation

[170] …where the trial judge finds that representation of an accused by counsel is essential to a fair trial, the accused, as previ­ously indicated, has a constitutional right to be provided with counsel at the expense of the state if he or she lacks the means to employ one. Where the trial judge is satisfied that an accused lacks the means to employ counsel, and that counsel is necessary to ensure a fair trial for the accused, a stay of the proceedings until funded counsel is provided is an appropriate remedy under s. 24(1) of the Charter where the prosecution insists on proceeding with the trial in breach of the accused’s Charter right to a fair trial…

Although the Court indicated that these circumstances would be exceptional and rare, many criminal practitioners in Toronto are reporting a 10-fold increase in Rowbothom applications, and almost all of them are successful. Legal Aid Ontario has even launched a Rowbotham application pilot, effective Jan. 12, 2015, which is supposed to expedite these types of applications.

In this case the applicant faced serious drug charges. He did not have any prior record, but had little savings and no assets. His income in 2015 was $16,211.42, over the $12,000 threshold for legal aid eligibility for single individuals.

Justice Nordheimer rejected the thresholds used by Legal Aid Ontario as being realistic:

[6] It should be obvious to any outside observer that the income thresholds being used by Legal Aid Ontario do not bear any reasonable relationship to what constitutes poverty in this country. As just one comparator, in a report issued last year, Statistics Canada calculated the low income cut-off, before tax, for a single person living in a metropolitan area (more than 500,000 people) for 2014 at $24,328, or more than twice the figure that Legal Aid Ontario uses[1]. The low income cut-off is the level of income below which persons are paying a disproportionate amount of their income for basic necessities (food, shelter and clothing). Some people equate this figure with the “poverty line” although Statistics Canada expressly states that this is not a measure of poverty. The reason for that is simple. There is no accepted definition of “poverty”. As Statistics Canada says “Decisions on what defines poverty are subjective and ultimately arbitrary”[2]. Nevertheless, the fact that a person, below the low income cut-off, has his or her income largely consumed by those basic necessities obviously means that they do not have sufficient income to allow for extraordinary expenses, such as the fees necessary to retain a criminal defence lawyer to provide representation in a criminal jury trial.
[emphasis added]

In this case, there were Charter applications around admissibility of evidence, a severance application, and an intention to rely on the co-conspirator’s exception to the hearsay rule. The complexities of the case required legal counsel, and Justice Nordheimer stayed the charges until state-funded counsel could be provided.

Andrew Nathanson goes further, and discusses in a 2003 paper the use of Rowbotham applications. He cites authorities which suggest that the terms of legal aid themselves are typically unfair,

Even where legal aid is available, the combination of the low rate, limitations on preparation time, the $50,000 cap and restrictions preventing counsel from incurring disbursements (e.g. for experts) all affect the fairness of trials. Even if the accused is able to retain counsel, these constraints may, in practice, risk rendering counsel’s assistance perfunctory.

Many defence counsel work are forced to work long, uncompensated hours for legal aid clients. This point has been made many times before, but bears repeating. This is a transfer of the cost of fair trials from society as a whole to a small group of lawyers.

Another alternative is greater use of amicus curiae for unrepresented or self-represented parties in complex trials. The MAG Report Of The Review Of Large And Complex Criminal Case Procedures looks at the use of amicus curiae and suggests they should be appointed early and have a broader role,

Of particular interest on this point is the recent decision of the British Columbia Court of Appeal in R. v. W. (P.H.L.), which appears to contemplate an expanded role for amicus. The elderly accused was charged with a historical sexual assault of his daughters. He had been refused legal aid and a Rowbotham order was denied on the basis that he could afford to retain counsel. The accused chose to proceed self-represented. The Crown acknowledged the case was serious and complex. On the appeal from his conviction, the British Columbia Court of Appeal held that, as the trial progressed, it became clear the accused was not capable of defending himself effectively. He frequently brought up matters that the trial judge warned him were prejudicial to his case, he declined to cross-examine the complainants, and he eventually abandoned his closing address after objections that he was trying to adduce new evidence. The Court held that the accused could not receive a fair trial without the assistance of counsel and that the trial judge should have either entertained a fresh Rowbotham application or should have appointed amicus curiae. 10 A new Rowbotham application would almost certainly have failed since the accused’s financial circumstances had not changed. The thrust of the Court’s reasoning appears to be that in these circumstances amicus should have been appointed and that the role of amicus would include assisting the accused in the conduct of his defence so as to ensure that he received a fair trial.

The Report also provides suggestions for reforming legal aid, including creating a short list of highly qualified lawyers to take on long and complex cases at a higher fee. The other approach could be that an enhanced oversight of budget is created for long and complex cases to ensure they are being applied in a “high quality”, “cost effective” and “efficient” manner.

The deprivation of liberty in our society should be done with caution, especially with complex charges where the full force of the state is against the accused. If legal aid cannot raise its eligibility rates, and the Crown insists on pursuing charges on complex matters with unrepresented parties, the court should contemplate greater use of other resources, including an amicus, to ensure that these trials are conducted in a fair and just manner.