Province unveils massive justice legislation, reverses plan for big new cuts to legal aid

After slashing the legal aid system’s budget by $133 million this year, the Ontario government is reversing its plan to cut $31 million more next year, Attorney General Doug Downey confirmed Monday.

The announcement coincided with the tabling of massive new justice legislation that proposes changes to everything from legal aid to class action lawsuits to the disciplining of lawyers and judges.

“The current funding will stay stable going forward,” Downey said in an interview with the Star at Queen’s Park Monday. “After full consultation, this is our plan, and our plan is to maintain existing funding on a go-forward basis.”

The government faced a backlash this spring when it cut Legal Aid Ontario’s budget by $133 million this year with $31 million in further cuts initially planned for next year.

In response to this year’s reduction, LAO imposed millions of dollars in cuts on its community legal clinics and restricted the services of duty counsel, the legal aid-funded lawyers who can assist unrepresented people in court.

Downey said Monday that the Smarter and Stronger Justice Act is his government’s bid to overhaul and simplify an antiquated and complex legal system, including changes to the way legal aid services are delivered.

“I want people to understand that we’re making the system more sustainable, we’re making it more modern, we’re making it operate in a way that they would expect it to operate,” Downey said.

The legislation proposes to allow a “mix of service providers” to provide legal aid services to low-income Ontarians. When asked if this could include paralegals being given legal aid funding to represent individuals in a criminal proceeding, Downey said that would be up to Legal Aid Ontario, the independent body that manages the legal aid plan.

The legislation would also allow LAO to offer a wider variety of services. These would include alternative dispute resolution services and what are known as unbundled legal services, in which a lawyer provides certain specific services to an individual rather than handle their entire case.

The Association of Community Legal Clinics of Ontario, one of the government’s biggest critics on the legal aid file this year, said in a statement it was pleased with the new legislation.

“This new legislation will improve the delivery of legal aid services in Ontario while ensuring that independent community legal clinics continue to work closely with the communities they serve in identifying their needs and in providing poverty law services to their clients,” said association co-chairs Trudy McCormick and Gary Newhouse.

Elsewhere, the proposed new legislation would mean provincial court judges and justices of the peace who are fired for misconduct will no longer have the possibility of recouping their legal costs from the government.

At the moment, the Ontario Judicial Council can recommend to the attorney general that a judge fired for misconduct be compensated, partly or entirely, to cover the legal costs of their discipline proceedings; the Justices of the Peace Review Council can do the same for JPs.

In the case of judges, the law says the attorney general must follow the recommendation. For JPs, he has the discretion to disagree.

“It was just offensive to me,” Downey said of the practice. “If somebody is fired for misconduct, I don’t think we should be paying their legal fees.”

Downey’s predecessor as attorney general, Caroline Mulroney, approved recommendations for compensation for two JPs fired in 2018, Tom Foulds and Richard Bisson. They each received $20,000 in public dollars.

But the proposed changes do not touch on compensation for judges and JPs who face discipline but are not fired. Downey himself approved a recommendation this year to compensate York Region JP Adele Romagnoli almost $34,000 — Romagnoli was not fired but rather ordered to take additional training after admitting she failed to know and apply the law.

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The legislation also proposes to increase the maximum fine for lawyers and paralegals found guilty of professional misconduct by the Law Society Tribunal.

What’s not contained in the legislation are proposed changes to the way provincial court judges are appointed.

Downey had suggested to a law conference in November that he was contemplating changes to the appointments process, but that declaration immediately led to legal organizations sounding the alarm, saying the appointments process in Ontario is already considered one of the best in the world. Downey suggested he’d like to see the independent judicial advisory committees submitting longer lists of recommended candidates to him for judicial appointments.

“I wanted to start the conversation, and it certainly did start and we’ll pick it up in the new year,” Downey said. “Everybody agrees we need to maintain the integrity of the system, but I think we need to have a bigger pool of applicants.”

Other proposed changes include:

  • Making changes to the Class Proceedings Act, including ensuring that lawyers acting for a class are charging fair and reasonable fees, and allowing the court to withhold a portion of the fees until it can determine if the class was fairly compensated.
  • Allowing personal property that was the result of, or used for, a crime to be forfeited to the government without a court order in an uncontested case. This is known as civil forfeiture, and the proceeds earned from selling the property is used by the government to support victims. There would also be a new annual report detailing all forfeiture proceedings in Ontario.
  • Changes to allow for virtual commissioning and notarization of documents online. Paralegals will also be eligible to be appointed as notaries.
  • Making it easier for victims to receive damages when suing someone who has been convicted of non-consensual distribution of an intimate image.
  • Expanding who can perform marriages, including out-of-province Canadian judges and allowing Indigenous groups to designate individuals who can perform the ceremonies.
Jacques Gallant

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