Over two years ago, Ontario Premier Doug Ford slashed Legal Aid Ontario’s (“LAO”) budget by almost 30 percent. For many, the pressing threat of COVID-19 has put this issue on the back burner, but those most vulnerable to the cuts, like financially marginalized Ontarians, cannot afford to keep it out of their minds. Low-income Ontarians are left to bear the effects of an underfunded legal aid system as LAO was forced to reduce the services they offer.

One of the clearest outcomes from the cuts is the legal aid system being stretched even thinner than before. The ramifications are felt all over Ontario with many legal aid clinics having to lay off staff, resulting in reduced effectiveness in serving the community and delivering services.

As a result, LAO is able to fund fewer cases, which has reduced their capacity to assist community members seeking out legal help, as well as placing more work on remaining staff (a great example being the Sudbury community legal aid clinic).

The full effects of the cuts will likely be seen post-pandemic with LAO using their limited funding to cushion the fallout of the pandemic through offering expanded services to those navigating the switch to online court. With the current backlog of cases, it may be difficult for LAO to financially meet the demands of the increased level of services needed without coming at the expense of current services offered.

Those in favour of reduced legal aid funding, including the current Ford government, cite that taxpayer dollars are being inefficiently used by LAO clinics to justify the cuts in funding. They contend that there is no reason to fund services like external lawyers for bail hearings when people already have duty counsel available.

Without external legal services, those unable to afford legal help are in effect penalized for being low-income. It leaves those facing charges locked up for additional time as they await their turn for bail.

However, this is an oversimplification of what external lawyers do in bail hearings.

Duty counsel are lawyers provided by LAO who can assist individuals on their legal matter the day they are in court. They often serve simple bail hearings, which allows them to assist many clients at the same time. Certain cases require more preparation.

When duty counsel face complex legal issues that require more preparation, such as where an accused may be dealing with mental health issues, it slows their ability to serve other clients. Without external legal services, those unable to afford legal help are in effect penalized for being low-income. It leaves those facing charges locked up for additional time as they await their turn for bail.

This is where external legal counsel are required to ensure complex cases receive the attention they need without compromising duty counsel’s ability to assist many clients at once. Duty counsel and external legal aid lawyers work in tandem to offer comprehensive legal services to those most vulnerable.

What can policymakers do to improve legal aid?

A seemingly simple solution is allocating more funding to LAO in the next budget to restore cut services, fund pandemic services, and towards supplemental community initiatives.

A well-funded legal aid system also means less self-representation. The cuts have forced vulnerable individuals like refugees towards self-representation.  In courts, self-representation may hinder the legal process through delays and longer trials which end up increasing the cost of legal proceedings for all.

The legal system is less effective when it cannot operate with full efficiency. In a cost-benefit analysis of legal aid by the World Bank, it was found that failing to sufficiently fund legal aid programs does not save money, but rather displaces the cost to other areas of the legal system and increases the time it takes to resolve cases. Misplaced cost-cutting in one area can lead to more costs in another down the line, as seen with the legal aid cuts “saving” taxpayer money up front but increases the cost of more self-represented individuals in the system.

LAO has long staggered under the weight of an underfunded scheme. Currently, funds are used toward flagship services such as providing services in legal aid certificates, duty counsel, family law, among others.

Additionally, as important conversations are being had surrounding technology and accessibility, increasing LAO funding will also open opportunities to explore technology in an administrative capacity to improve efficiency and reduce the cost of legal services in the long run. This is especially important as the pandemic has shifted many courts to online and has renewed interest in the use of technology for access to justice.

Adopting a community-based justice framework

Restoring government funding gives the opportunity not only to fund the use of external legal aid lawyers once again, but it also allows, inter alia, the opportunity to decenter an ‘access to courts’ access to justice focus and encompass a wider community-based scheme.

A discussion paper by Community Legal Education Ontario (“CLEO”) outlines a community based framework where community members based in not-for-profits are equipped with knowledge to address less complicated procedural legal matters, and guide clients towards a full range of support as needed. This would have the effect of reducing the stress placed on clinics, get clients help from trusted community workers, and essentially be integrated as an arm of the legal aid apparatus.

With the Ontario provincial election fast approaching, the winning party has a chance to improve the legal aid scheme and lessen the damage to Ontarians through reinvesting in LAO and implementing services like a community-based justice framework to offset the strain on the legal aid system.

The next provincial government needs to make legal aid and community justice a priority as legal aid staff and clients stagger under the weight of a collapsing system. While there is no single perfect solution to legal aid and access to justice, one thing is clear: underfunding LAO does not serve Ontarians.

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