Update on Threats to Student Legal Clinics

The past two months have seen rapid developments dramatically harming Ontario (and Canadian) student legal clinics, whose role is to help low income persons who do not have access to legal aid.

1. Legal Aid Cuts in Ontario

First, the Ontario government has taken steps to reduce access to justice for low income persons by reducing funding to Legal Aid Ontario by 30%. LAO in turn funds Ontario’s student clinics, providing the vast majority of their funding. LAO announced in mid-June that student clinics will suffer funding cuts of 10%.

Along with cuts from student fees (see below), Ontario student legal clinics are facing cuts in the area of 20%. Fewer students will be given the opportunity for experiential learning, and fewer low income persons will receive representation.

The province’s cuts will result in more self-represented persons in the court system, which in turn will cause more delays and more costs.

Studies in the US, UK, and Australia have shown that for every dollar spent on legal aid, expenses in other spending areas like health care are reduced by an average of $6.00. If this holds true in Ontario, the government will increase its overall spending and increase its deficit by making these cuts.

2. Student Fee Cuts

Second, the Ontario government is taking a second swipe at student clinics with its student fee opt-out policy. Student fees are the second largest funding source for clinics, who have been informed that they should plan for large funding cuts as a result of the policy.

Post-secondary students will now be able to opt-out of “non-essential” student fees. Student fees are paid to each university student council, which in turn uses it to fund student services, including student legal clinics. The line of thinking behind the opt-out policy is similar to an Ontarian thinking “I don’t have kids in school, so I’m going to opt out of paying education taxes.”

The Conservative Party made it clear the policy’s purpose in a fundraising email to party supporters, accusing student councils of “crazy Marxist nonsense.” What student councils in fact do is provide services to their students, not trying to establish “crazy Marxist” campuses in Ontario. What the provincial government is attempting is to weaken its potential critics.

3. Bill C-75 (again)

When Bill C-75 was introduced by the federal government in 2018, the bill raised the maximum penalty for summary conviction offences to two years. However, the bill did not amend s. 802.1, which stated that “agents” (including law students and articling students) can only appear on criminal matters in summary conviction matters where the maximum penalty is six months. It appeared that this was an oversight, as leaving the “six month” wording in place for an obsolete provision made no sense.

Law students, who had successfully appeared in the criminal courts for decades, would be prohibited from the courts unless a province passed an order-in-council. This raised the prospect of uneven access to justice for Canadians, with each province taking a different approach.

The provision also places law students and articling students, who are under the supervision of a lawyer, in the same category as a member of the general public.

However, the government doubled down and did not make significant changes to s. 802.1 despite an appearance before the Justice Committee by the Association for Canadian Legal Education and Ontario clinic directors.

The Senate Legal and Constitutional Affairs Committee saw the impact of the government’s wording, and added a clause that, while not perfect, would allow existing provincial law to apply. This meant in effect that provincial law societies would have the jurisdiction to govern the role of agents. This amendment had the support of the Federation of Law Societies of Canada, the Law Society of Ontario, the Canadian Bar Association, and the Association for Canadian Clinic Legal Education. It was passed by the Senate on third reading on June 13.

On June 17, the Minister of Justice announced that he rejected the amendment. While his position was that the provinces, not the federal government, had jurisdiction over civil rights, the fact remains that the Senate amendment in fact preserved provincial jurisdiction. Bill C-75 passed the House on June 19 with further amendments, and the Senate chose not to clash with the government’s wishes, passing the bill on June 20. It received Royal Assent on June 21.

Student clinics will now be left to deal with their individual provinces in seeking orders-in-council before Bill C-75 comes into effect. More on this in the months ahead.