Reasonable Doubt: legal aid in Ontario is far from perfect

Is the minimum salary qualification much too low? And are legal aid lawyers paid enough?

In the world of criminal defence, the legal aid system has a major impact on access to justice and has been at the centre of continuing disputes over funding.

State funding of legal services differs significantly between the US and Canada. And within those two countries, there are even more discrepancies from state to state and province to province. Most states rely on some form of the “public defender” system. Lawyers, who are usually employees of the state, are tasked with taking on criminal cases to which they have been appointed. In most cases, accused individuals who are represented by a public defender are unable to choose who will represent them.

In contrast, most provinces in Canada use some form of a legal aid certificate program. In Ontario, there are two different types of state-funded counsel: duty counsel and private lawyers who are providing services pursuant to a legal aid certificate.

Duty counsel are either on contract with or employees of Legal Aid Ontario. They staff courthouses across Ontario and provide individuals with on-the-spot advice about their cases. They perform an important function in assisting administrative courts with straightforward adjournments. They also help people who don’t have their own lawyer with bail hearings, guilty pleas, and sentencing.

Most state-funded legal work in Ontario within criminal law is completed through the legal aid certificate program. Once someone has been granted a legal aid certificate, they can appoint any lawyer on the Legal Aid criminal panel who is prepared to complete the case on legal aid. The challenging part is getting the certificate.

In Ontario, there are two requirements in order to be eligible for a legal aid certificate for a criminal charge. First, you must be facing a substantial risk of imprisonment. Second, you must be financially eligible. Legal Aid Ontario sets out specific income requirements in determining eligibility. If you live on your own and you earn more than $12,863 annually, you will likely be required to contribute financially to your defence. If you earn more than $14,888 per year, you are ineligible.

In June of this year, the Toronto Superior Court of Justice’s Ian Nordheimer stopped a trial from proceeding because the accused had been denied legal aid coverage on the basis of financial ability. The accused earned more than $16,000 in the year preceding his trial. In granting his application to halt the trial, Justice Nordheimer said that the income thresholds used by legal aid “do not bear any reasonable relationship to what constitutes poverty in this country.” Later that month, David Field, the president and CEO of Legal Aid Ontario, responded in a public statement that he agreed with Justice Nordheimer, but that resource constraints imposed by the provincial government made it impossible to change the income thresholds.

The accused person in that case was requesting the opportunity to apply for a court order mandating the provincial government to pay for his legal expenses. This is referred to as a Rowbotham application. When a Rowbotham order is made, a lawyer is generally required to bill just as they would when they have a legal aid certificate. The only meaningful difference is that the funds for the case from a different budget within the provincial government. Because these applications have become so much more common, legal aid Ontario has established a pilot program to fast track them and ensure that they don’t unnecessarily slow the trial process. Even those successful on a Rowbotham application may still be subject to a hefty contribution payment. In some cases, this will require that they still pay the entire legal bill, but they’re permitted to do so on a lengthy payment plan.  

Another challenge faced by legal aid in Ontario and other provinces across Canada has been the compensation of fees to lawyers accepting certificates. In 2010, this led to a boycott by Ontario lawyers in which most criminal defence lawyers refused to accept legal aid certificates for more serious cases on the basis that they were being compensated unfairly. Ultimately, this was resolved by a promise from the Attorney General to increase compensation under the legal aid system over a period of seven years. Currently, most legal aid work billed by criminal lawyers is compensated at a rate of $109.14 to $136.43 per hour, depending on the experience of the lawyer. In contrast, the average lawyer in Canada with 10 years of experience is compensated at a rate of $350 per hour. It bears mentioning that there is a significant discrepancy between a lawyer’s salary and their fees. A lawyer’s hourly rate must also account for all business expenses, including rent, salaries for staff and research materials.  

Thus, the financial bind of legal aid is twofold: to increase the income threshold to allow for more applicants to receive legal aid certificates and to ensure that lawyers are comparably compensated in order to avoid talented lawyers moving away to more lucrative areas of law.

Criminal law is not the only area in which the province grants legal aid certificates. The other most common areas are family law and immigration law. The administration of the legal aid program as it relates to criminal law is an understandably high priority. Those facing criminal charges run the risk of being imprisoned or facing potentially life-long consequences that can arise from a criminal conviction. Of equal importance is that a skilled criminal defence counsel is often the only thing standing between a wrongful conviction and an acquittal. With this being the case, adequate funding of legal aid is one of the most important elements in the proper functioning of the criminal justice system.

Brian Eberdt is a criminal defence lawyer with Lockyer Campbell Posner. Reasonable Doubt appears on Mondays.

A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Lockyer Campbell Posner or the lawyers of Lockyer Campbell Posner. | @nowtoronto

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