Ontario’s most senior judges delivered a rare public rebuke Tuesday of the Ford government’s cuts to legal aid funding.
Speaking at the annual opening of the courts ceremony in Toronto, Chief Justice of Ontario George Strathy said that cutting legal aid dollars — which could lead to a greater number of individuals having to represent themselves in court — would not actually save money in the long run.
“It increases trial times, places greater demands on public services, and ultimately delays and increases the cost of legal proceedings for everyone,” Strathy said. “We can also say that public confidence in the administration of justice is enhanced when the most vulnerable in our society are given a voice, so they can truly be heard.”
The Ford government slashed legal aid funding in its spring budget by 30 per cent, a reduction of about $133 million from the anticipated provincial funding envelope of $456 million.
“Recent and scheduled reductions in funding of legal aid are of great concern to those involved in the justice system, including many of those in this courtroom,” Strathy said at Toronto’s 361 University Ave. courthouse.
He was speaking at the opening of the courts alongside Associate Chief Justice Frank Marrocco of the Superior Court of Justice and Chief Justice Lise Maisonneuve of the Ontario Court of Justice.
The ceremony, which takes place every September, is an opportunity for the judges to talk about the state of affairs in their respective courts and comment on issues affecting the justice system. There’s no actual “opening” — the courts remain in operation all year long.
The legal aid cuts are having an impact across the justice sector. In response to the cuts, Legal Aid Ontario, the independent body that manages the province’s legal aid plan, made changes that include requiring publicly funded lawyers known as duty counsel to conduct nearly all bail hearings for unrepresented individuals, rather than funding private criminal lawyers.
Lawyers have harshly criticized the changes made in bail court, saying duty counsel could be overburdened with an increasingly heavy caseload, resulting in legally innocent individuals spending extra time in custody before a decision is made on their bail.
The changes have also meant that services provided by duty counsel in other areas of criminal court have had to be reduced, the union representing duty counsel has said.
“An effective, accessible justice system depends on a robust legal aid program,” Maisonneuve said. “The unintended consequences to the reduced legal aid funding causes us concern.”
Maisonneuve’s court hears the bulk of criminal matters and a large portion of family cases.
She said that in criminal courts, the reduction in duty counsel services may result in an increase in court appearances by unrepresented individuals, causing further delays. And a reduction to the number of case conferences for family court cases — where a judge tries to see if most or all of the issues can be settled — has “already had the unfortunate consequence of increasing matters set for trial,” as well as delayed the early resolution of cases and caused more conflict in already difficult proceedings, Maisonneuve said.
Critics had already said that for years the legal aid system has been underfunded, resulting in individuals being turned down for assistance as they made too much money to qualify, yet also did not make enough to hire their own lawyer.
“I can tell you from personal experience, shared by every judge in this room, that the pace of a proceeding with an unrepresented litigant slows to a crawl and that every sector of the justice system bears increased costs as a result,” Strathy said.
Ontario Attorney General Doug Downey, who was present at Tuesday’s ceremony, told the Star in a statement that the government is working to ensure the legal aid system is sustainable for clients and taxpayers and is working with Legal Aid Ontario and stakeholders to build a modern system.
“What lawyers and other special interest groups need to understand is that the legal aid system is funded by hardworking taxpayers,” Downey said.
Marrocco, for his part, said government needs to recognize the importance of pro bono legal services “and co-operate where possible with pro bono initiatives.”
He said lawyers providing free legal services is not an “all-encompassing solution” to the problem of so many people representing themselves due to the underfunding of the legal aid system. But it is “a reality which has emerged from the tension between the financial constraints under which we function and the legal needs of the people of Ontario.”
Marrocco urged the legal profession “to recognize its responsibility to encourage an orderly expansion of pro bono services.”
The president of the Criminal Lawyers’ Association, Michael Lacy, told the Star the senior judges’ comments “recognize a significant and growing concern” that the recent and future planned cuts to legal aid will create a “crisis” in criminal court.
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“Additionally, these cuts increase the risk of wrongful convictions, increase the time it takes to complete a trial or an appeal, and increases the risk that verdicts will be questioned and successfully appealed,” Lacy said.
Lacy said criminal lawyers already do legal aid-funded work “at a significantly reduced rate,” which he specified can be 20 to 30 per cent of normal hourly rates, in addition to a “tremendous amount” of pro bono work.
“The orderly expansion of pro-bono services is a message that needs to be directed at the law firms and lawyers who do not regularly in their practice serve marginalized, racialized, disenfranchised, disadvantaged and/or poor Ontarians — those lawyers are not criminal lawyers,” he said.