Disclaimer: this blog entry describes my understanding of the criminal legal aid system in Ontario through the experiences I had working with a criminal duty counsel team for a summer as well as my personal research on the topic. I have omitted details and complexities for the sake of simplicity – please refer to Legal Aid Ontario’s website for complete information.
One of the problems with raising awareness about the access-to-justice crisis in Canada is that the injustices are hidden within complex legal regimes which are only visible to people who work in or have legal problems with that particular area of law.
This entry will focus on the criminal law context in Ontario and attempt to explain where the problems are and how those problems affect low-income individuals on a daily basis.
A BRIEF OVERVIEW OF THE CRIMINAL LEGAL AID SYSTEM IN ONTARIO
Unlike the American public defender model where state-paid lawyers accompany accused throughout their criminal process if they qualify for legal aid, Ontario functions on a duty counsel and certificate model.
A) Duty counsel
Duty counsel teams, composed of lawyers and paralegals employed by Legal Aid Ontario, can be found in all Ontario courthouses. They provide basic legal advice and assist with a limited number of legal procedures such as bail hearings and guilty pleas. They do not represent clients at their criminal trials. They offer services to anyone that:
1) Has a court appearance that very day; and,
2) Has not hired a private lawyer to represent them.
There is no financial eligibility test for duty counsel services.
B) The certificate program
The certificate program allows qualifying individuals to hire a lawyer in private practice and it’s the state that covers the bill. The private lawyer who gets a Legal Aid certificate for a client then goes on to represent that client as if he or she was one of their paying clients, but it is the state that pays the bill directly to the lawyer.
To qualify for the certificate program, you need to:
1) pass a financial eligibility test
2) be facing, or have a high probability of facing jail time
C) Putting it together
In Ontario, then, everyone has access to basic legal advice so they can be informed of their options when they are charged with a crime. Everyone also has access to legal representation for bail hearings, routine court appearances and guilty pleas.
Full representation by a private lawyer including representation at criminal trials, mirroring the services that paying clients receive, however, is limited to individuals who pass a strict financial eligibility test and are facing jail time.
1) Many people who cannot afford a lawyer do not qualify for the certificate program
The certificate program is meant to provide quality legal representation for people who cannot afford a lawyer. An individual who makes more than $12,500 a year, however, does not qualify for the certificate program. That’s $1042 per month. Someone working minimum wage full-time makes almost twice the cut-off for a legal aid certificate.
This means that if you make more than $1042 per month, you are expected to hire your own lawyer privately. Lawyer fees vary widely depending on the complexity of the case, but quality legal representation can go from a few thousand dollars to tens of thousands of dollars. You can only imagine how difficult this would be for someone working minimum wage to pay.
2) The certificate program is not available for people who are not facing jail, despite the serious consequences that flow from a criminal conviction
People who are not facing jail time do not qualify for legal aid. A criminal conviction, however, can lead to immigration consequences such as deportation and lead to job loss and seriously reduced job opportunities in the future.
Two consequences of 1) and 2):
3) Many people end up representing themselves at their own criminal trials
One of the main reasons that people represent themselves at criminal trials is because they cannot afford a lawyer and they do not qualify for legal aid. Imagine going to court to defend against charges that have been laid and are being argued by highly skilled lawyers, and knowing that what you say and do, or don’t say and don’t do, can lead to the difference between being found guilty or innocent, or facing a week of jail or months.
4) There is an inherent pressure to plead guilty
Duty counsel is accessible to all and they can help you plead guilty. If you are in a situation where you cannot afford a private lawyer and you do not qualify for legal aid, it can be seen as more attractive to take a guilty plea rather than attempt the daunting task of running your own criminal trial, regardless of whether you did it or not.
4) People who cannot afford a lawyer get lower quality service than people who can afford a private lawyer
Regardless of how skilled someone who works at duty counsel is at their job (and those that I met and worked with are exceptional lawyers and paralegals), the sheer number of clients that use duty counsel services on a daily basis inevitably impacts the quality of services compared to the clients of private lawyers. In one day at the Brampton courthouse, it would not be rare that someone working at duty counsel assists with 100 routine court appearances, 30 resolution meetings (where the crown and the defense negotiate the outcome of a guilty plea) or 20 guilty pleas. Most privately-hired lawyers do not have nearly as much traffic and have ample time to prepare for and conduct these procedures.
In addition, duty counsel will only help people who have a court appearance that very day while I’m sure that when paying clients call privately-hired lawyers, they are more likely to help them whenever possible and whenever the client wants.
The major failure of the current criminal legal aid system is the stringent eligibility criteria for the certificate program which leave many without representation at their own criminal trials. While new strategies such as expanded duty counsel services (which allow duty counsel staff to run minor criminal trials) are being implemented, this issue represents one of the major access-to-justice crises currently facing Ontario.