Everyone deserves access to justice

Published: June 23, 2016

The following op-ed appeared in slightly shorter form in the Hamilton Spectator on June 22, 2016.

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By David Field, President and CEO, Legal Aid Ontario

Recently, Superior Court Justice Ian Nordheimer suspended proceedings on a criminal case on the grounds that the defendant – who earned $16,000 a year, well above the $12,000 minimum threshold for legal aid – did not have the means to pay the legal fees that could cost $11,000.

Justice Nordheimer stated in his ruling, “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.”

With all due respect to Justice Nordheimer, this is obvious to us as well.

We agree with Justice Nordheimer: the gap between legal aid eligibility and the low-income measure is much too wide. Far too many low-income Ontarians fall into that gap, not just in criminal proceedings such as this particular case, but also with family law, refugee law and other areas.

The painful reality that Legal Aid Ontario faces every day is a familiar one to most people: there is high demand for the services we offer, but there is a limit to the resources we have. We could, as Justice Nordheimer suggests, change the threshold for legal aid to be at par with the low-income measure right now, but our present funding levels would stay the same and people would still lose out.

And demand does increase. Last year, changes to our financial and legal eligibility led to a 24 per cent increase in the legal aid certificates granted.

We need to acknowledge the situation is improving. Under the funding increases by the provincial government and recent increases by the federal government, 400,000 more Ontarians are eligible for Legal Aid than was the case 18 months ago. The provincial government has also made a long-term commitment to improving financial eligibility with a goal of reaching the low income measure over a ten year period. The federal government also announced additional funding of $118 million to legal aid plans across Canada for the next five years.

Change is, nonetheless, incremental and slow. However, it’s not just legal aid that needs to be fixed. The cost for an individual forced to deal with the legal system is excessive, even rapacious. And the delays in the criminal justice system are endemic and drive up the costs of legal proceedings.

In criminal proceedings a number of factors including mandatory minimum sentences, limited availability of conditional sentences and bail system issues create a massive drain on resources. Court administration often is paper-based-which also causes delays. All of this means costly legal proceedings can take months. And not every legal matter needs to go to court for resolution, but they often do.

The truth is, anytime someone in Ontario – no matter what they earn – has to deal with a legal proceeding, they have already probably spent hundreds, if not thousands, of dollars before even setting foot in a courtroom. Finding ways to mitigate this will prevent spiraling costs and, sometimes much worse, people representing themselves.

Every year, low-income Ontarians depended on legal aid lawyers to not only assist with their criminal cases that threaten their liberty, but also to help family matters that affect children, and refugee claims that often hold lives in the balance. At the same time, there were others who had their application denied.

This is the painful reality of offering legal aid services. Justice Nordheimer is absolutely right to point it out. We agree that everyone deserves access to justice. Making this happen is the task before us.