Separate and unequal: Holding Canada’s Immigration Detention System up to the Standards of our Criminal Justice System

Detention

This photo has been taken from the June 2014 report from the End Immigration Detention Network available here.

This article has been roughly translated into English from its original version in French prepared for Blog Justice CFT, a French language blog run by the Legal Services of the Centre Francophone de Toronto, a community legal clinic serving francophones in the GTA where I am currently employed.

Introduction

Canada detains migrants in circumstances that would be completely unacceptable to our criminal justice system. Detention is detention. Whether you are detained for reasons related to a potential removal from Canada or because you have committed or been accused of committing a crime, your loss of liberty is the same.

There is no lack of media coverage about the treatment of detainees, the promises to improve conditions within detention centres and the recent spate of deaths in immigration holding centres.

Rather than repeat what has already been discussed, I will focus on how the legal protections and rights afforded to people accused of crimes are absent from our immigration detention system despite the fact that both systems lead to the same result – detention.

Immigration detention 101

The criminal justice system incarcerates people regardless of status who are suspected or found to have committed crimes while the immigration detention system incarcerates non-citizens who may be facing removal from Canada for a variety of reasons. The people subject to immigration detention generally fall into two broad categories:

  • foreign nationals who are, in one form or another, asking for Canada’s protection and fear returning to their home country
  • Permanent residents and foreign nationals which the government wants to remove from Canada due to criminality

The Immigration and Refugee Protection Act (IRPA) lays out the grounds under which people can be subject to immigration detention. Permanent residents and foreign nationals can be detained under the IRPA for three main reasons:

  1. The individual is a danger to the public
  2. The individual’s identity has not been established
  3. The individual is a “flight risk” (which means the government thinks that the individual will not show up for proceedings or appointments that will lead to their removal)

After being detained, hearings called “detention reviews” are held to determine whether continued detention is justified within two days of being detained and then every 30 days. “Members” of the Immigration Division of the Immigration and Refugee Board determine whether to continue detention or release individuals with or without conditions at each of these hearings.

The stories and legal trajectories of individuals subject to immigration detention are often complicated, but it is important to note that many people being detained have not been accused of or found guilty of committing any crimes.

How our criminal justice system would see immigration detention

I am taking for granted that we all believe that people should be afforded similar rights and protections when facing incarceration whether they have committed crimes, been accused of committing crimes or are foreign nationals, citizens or permanent residents.  With this in mind, I am now going to list aspects of our immigration detention system that would be completely unacceptable to any judge, justice of the peace or lawyer involved in the criminal justice system.

Concerns with the Immigration Detention System

  1. Absence of lawyers

Detention review hearings regularly proceed without a single lawyer present in the room. The representatives of the government seeking continued detention do not have to be lawyers. There is no requirement that detainees are represented by or seek legal advice from counsel before or during the hearings. Even the board members rendering decisions do not need to have had a legal education.

This is important because lawyers are regulated and have obligations of confidentiality, professionalism and honesty before the courts with serious consequences if these obligations are breached. When individuals representing either side in a detention review make errors and are not lawyers, the recourses available are not as straightforward.

In the criminal justice system, most individuals are represented by legal aid certificates, private lawyers or are assisted by duty counsel lawyers who staff every single courthouse of the province for many (but not all) important steps in the criminal process. The court also has the power to appoint lawyers and is reluctant to proceed without them.

  1. Reasons to detain are insufficient to justify incarceration

A few examples of reasons why someone can be detained:

  • A foreign national that does not have identity documents, even if the individual is seeking asylum in Canada after escaping political violence or persecution
  • A foreign national that states on one occasion that they will not return to their country of origin, even if they fear persecution

We usually associate incarceration with doing something that is against the law. Neither of these examples are illegal actions, yet either of them can lead to detention.

Without any evidence of wrongdoing, a criminal court would never detain someone.

  1. A presumption of guilt

When a member makes a decision that is different than members at previous detention reviews, he or she must justify this different decision. As time goes on, the justification required to get released after multiple decisions to continue detention resembles a presumption of guilt that becomes increasingly difficult to overcome.

  1. Detainees are not discouraged from speaking

In Immigration detention, members and government officers often seek testimony and input directly from detainees before and during the hearings. The statements of detainees can then be used to continue detention even if they were obtained without any role of legal counsel.

In the criminal justice system, an accused person has the right to and is encouraged to remain silent.  In almost all procedural steps of the criminal process, lawyers are available to receive instructions and speak on behalf of their clients to the court.

  1. There is no limit to the length of detention

There is no limit to the length of detention. Even if the original reason for detention was minor, such as a failure to establish someone’s identity or a single declaration that someone will not return to their home country, if nothing about the situation changes, someone can be detained for years.

Conclusion

At a minimum, systems within the same country that detain people should seek to mirror each other in terms of rights and protections provided. One can even make the argument that a system that incarcerates people who have not done anything “illegal” should be more rigorous and reluctant to detain people than a system that incarcerates people who have done or been accused of doing something “illegal”.

While the proposed reforms to our immigration detention system are welcome, they focus almost exclusively on improving the conditions of people being detained rather than addressing the fact that people are being detained in circumstances that would be completely unacceptable within the criminal justice system. Rather than improving conditions and building new detention centres, the government should consider legal reforms that bring immigration detention in line with the legal standards of our criminal justice system.

For more information:

  1. We Have No Rights: Arbitrary imprisonment and cruel treatment of migrants with mental health issues in Canada
  2. Detention Review Process
  3. The Truth about Immigration Detention

 

 

 

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Why I Care about the Eight Alleged Victims of Jian Gomeshi AND about Due Process: a Response to Glen Canning’s article

Jian Gomeshi

Glen Canning, reflecting on the events over the last few weeks surrounding sexual assaults committed by Jian Gomeshi, wrote a deeply critical article about how our criminal legal system fails the victims of domestic violence. He pointed to the under-reporting of domestic violence and the dissatisfaction of victims with the criminal process as evidence that our criminal legal system is broken.

In law school, I wrote a term paper and took a specific class about how the criminal process deals with sexual assault. I see a legal system that is struggling to cope with one of the hardest and most complicated types of crimes out there. It’s far from perfect, but I hope, in this article, to point out a few things that will show how our system is really trying to be just, even though finding that justice is a next-to-impossible balancing act.

Here are some of my thoughts

  1. The right to be presumed innocent until proven guilty is a crucial concept of our legal system, but you can believe and express whatever you want

The Charter guarantees the right to be presumed innocent until proven guilty in the criminal process, but it does not dictate that the public must adhere to this same presumption. You are entitled to think and express your feelings and opinions, and as we all cope with what is being revealed, it is crucial that we all, collectively, do just that. Let’s not confuse a legal right with some sort of personal or societal obligation.

  1. The criminal process must base its decisions on evidence, not public opinion

The right to be presumed innocent until proven guilty is another way of saying that people will only be condemned for committing crimes if there is evidence against them. It puts the police, the crown and the state to the obligation to provide evidence confirming that a criminal act has been committed.

You start your article by saying “due process is a concept I wish I could believe in”. I don’t see any alternative to due process which I can believe in.

Are you suggesting that we should proceed with criminal convictions based on public outcry without the need to go through the long process of proving fact based on evidence? Where would this leave all the other victims of domestic violence who don’t have the benefit of that public outcry?

I understand that what has been revealed about Jian Gomeshi is horrific and ugly, but we need consistency and due process to treat other similar or worse cases equally, regardless of how much press they get.

  1. Police officers and crown prosecutors take domestic violence very seriously

Across our province and country, police officers and crown prosecutors have “no drop” domestic violence policies which force the police to lay charges following allegations of domestic violence and crown prosecutors to prosecute them. While later in the criminal process, victims are exposed to a wide array of horrific questioning, it is simply not true that a victim who reports domestic violence to a police officer will be brushed aside. A police officer who is dismissive of a complaint of sexual assault is disobeying his or her own policies.

Perhaps 40 years ago complaints of domestic violence were not taken seriously and victims were left to increasing violence and/or death at the hands of their abusers, but we have come a long way since then.

  1. Under-reporting is caused by many factors, and the feeling that the criminal process would be a nightmare is just one of them

Victims do not report domestic violence for many reasons. Some share a family and a house with their abuser and worry about how they will sustain themselves if they open up. Some waiver between leaving and staying with their partner. Some can hardly admit the reality to themselves, let alone their friends or police officers. While going through the criminal process may be a factor, it is only one of many.

  1. I don’t believe that the experience of all victims in the criminal process is a nightmare

Reporting violence is scary because you can never be certain what the experience and the outcomes will be like. I believe that victim experiences with the criminal process vary greatly. It depends on the police officer and the crown prosecutor that you come into contact with. It depends if you happen to be in a region which has a specialized domestic violence court. It depends on the justices and the judges who are in front of you on particular days. It depends on if the accused pleads guilty or goes to trial.

  1. The criminal process is slow, but it takes things seriously

I understand your frustration with how long it has taken for victims to come forward, and how long the criminal process will inevitably take. But do not equate this with indifference. The criminal process takes time, but it also takes charges very seriously. Considering that three victims have already come forward to the police, I have little doubt that Jian Gomeshi will be brought to justice.

Conclusion

This has been a challenging, frustrating and difficult time for all of us. Coming face to face with Jian Gomeshi’s actions and the prevalence and under-reporting of rape in our culture more generally is not easy. But let’s not blame easy targets like the criminal process for something that has many interrelated causes. This is a time to reflect on what is wrong, not just with our criminal process, but with society more generally, and I hope that this post has helped promote a balanced and measured response to something so very ugly.

A2J and Family Law in Ontario

The legal concepts and procedures discussed in this post are for anecdotal purposes only and should not be relied upon as legal advice.

Why family law?

Family law may be the area of law that is most affected by the access to justice crisis for two simple reasons:

  1. Family law has one of the highest rates of self-representation: a report prepared by Dr. MacFarlane estimates self-representation at over 40% and notes that anywhere between 60% and 75% of those filing family law documents at Ontario courthouses do so without a lawyer.
  1. Access to full representation paid for by Legal Aid Ontario through the certificate program is severely limited and has been mostly replaced by drop-in, short-term or same-day legal services

This means that perhaps more than in any other area of law, parties in family law proceedings are more likely to be self-represented, and therefore face the greatest risk in getting outcomes which do not reflect their entitlements or rights under the law.

A brief overview of family law

Family law covers child custody and access, child and spousal support, support enforcement proceedings, property division and child protection. While having the stereotype of a legal forum which adjudicates petty disputes between bickering couples, many crucial decisions are made on a daily basis in our family courts, including:

  • How much child support a single parent receives;
  • When and if children can visit a parent;
  • Who children live with and who makes life decisions for them;
  • When should the failure of paying support lead to jail time;
  • When and under what circumstances children should be removed from their families temporarily or forever.

These decisions are made through time-sensitive and complex procedures which require careful consideration and cause significant frustration to those who are not familiar with them. Take, for example, some of the different vehicles through which legal arguments make their way to a court:

  • An “application” is made to the court where the applicant asks for specific orders from the court
  • A “motion” is similar, but asks for temporary relief and only once an application has been submitted and case conference has been held, unless the matter is urgent
  • A “motion to change” is not really a motion, but an application to change a previous court order

Initiating any one of these proceedings creates a series of deadlines for a multitude of steps which must be taken to maintain these proceedings in the court process. Everything filed with the court must be delivered (“served on”) the other party, and the rules of service alone are over a page long with multiple exceptions and exclusions.

Needless to say, navigating these procedures without the help of someone familiar with the process (usually a lawyer) is a daunting task.

Services available

Legal Aid Ontario offers a variety of services, most of which stop short of full representation. Summary legal advice is available via phone or in person to help people navigate the family law system. There are lawyers in courtrooms (“duty counsel”) who can assist individuals who have court appearances that day. There are limited certificates (when a lawyer is paid by LAO to represent a client) for independent legal advice when parties are in the mediation process or to prepare a separation agreement. There are extended duty counsel offices which help clients draft documents and give some degree of continued service over a period of time. Full representation certificates are available, but they are granted sparingly and usually require aggravating circumstances such as domestic violence.

While these services help a lot of individuals, they all stop short of a full representation certificate where a lawyer is responsible for a client’s file and takes on the client in the context of a traditional lawyer-client relationship. For this reason, family courts are full of self-represented litigants who have had some legal assistance at some point but have no professional who is providing consistent and continued service.

Some individuals can manage the responsibility of taking on their own case, but many, especially those who are low-income and may face other barriers such as language and mental health issues, cannot. Those who work in the family law system, whether judges, lawyers, clerks or administrative court staff, have come into contact with individuals who have missed deadlines, filled out the wrong forms or failed to make the relevant arguments to get what they want. And the fact that these events occur on a regular basis leads to the obvious conclusion that many people are not getting the outcomes which they deserve and to which they are entitled. A quick revision of the important decisions that a family court can make (listed above) will give you a sense of the gravity of this situation.

Conclusion

The fact that so many people are navigating this complex legal regime without the tools to do so effectively makes the fairness of the laws on paper a moot point. Every day, decisions are being made for people who are failing to effectively navigate the family law system, and this is one manifestation of the crisis our society is facing in accessing justice.

The grey zones in refugee determination and the problems with black and white characterizations of refugee claimants

The information discussed in this piece should not be relied upon as legal advice or information. Please refer to Citizenship and Immigration Canada, or the Immigration and Refugee Board for more information. 

Introduction

In the midst of dramatic changes in how Canada processes, judges and determines who deserves refugee protection, I cannot help but notice just how polarized the debate has become. The Conservative government will have you believe that most refugee claims are “bogus”, that claimants are liars attempting to scam the system and take advantage of Canada’s generosity. Others will have you believe that most refugee claimants fall squarely into the definition of a refugee. However, from what I have observed in my direct and indirect experiences with the refugee determination system, neither image captures the reality of the majority of refugee claimants.

I will outline here the many ways in which individuals who are definitely vulnerable and in need of protection do not fit within the definition of a refugee, illuminating a huge grey zone which I think makes up the majority of those who claim refugee status.

1. Many “failed” refugee claimants have lived horrific, traumatic experiences but do not fit into the narrow definition of a refugee

Here are some things that would disqualify someone from claiming refugee status regardless of the serious persecution faced in their home country:

– claiming refugee status in neighbouring countries regardless of the political situation in that neighbouring country

– returning to a country you fled, even for a short period of time

– failing to relocate to another part of your country that, according to the evidence available to the Immigration and Refugee Board, is safer

– taking too long to claim refugee status after arriving in a safe country

– passing through countries without claiming refugee status at the first opportunity

Many of these actions are consistent with someone who is trying their best to find safety or does not negate the real persecution they are facing in their home country. However, these examples greatly decrease the chances that a refugee claim will be accepted, even if evidence of serious risk or persecution is established in their home country.

2. Some people face serious hardship but do not fit into the definition of a refugee

Without going into too much detail, the threshold for being accepted as a refugee is extremely high. Many individuals who face serious problems and hardships do not qualify despite, in my opinion, deserving our protection.

3. Individuals who make up stories may still be deserving of our protection if they told the truth

Some refugee claimants rely on stories that were invented or modified by others who have some standing in their community. I have, for example, met with clients who tell stories that directly contradict fingerprint evidence obtained at border crossings.

It is easy to conclude that someone who lies is undeserving of our protection, but in my personal experience, this conclusion is not always that easy to make. Take for example, minors who are breaking down in your office out of stress, running out every five minutes to confirm the details of a fabricated story with a person whose identity they refuse to reveal. I may sense that these minors are not telling me the truth, but I cannot assume that the truth is rosy and comfortable if they were to tell it to me, and very often, my gut is telling me otherwise.

I’d like to think that I’d act differently in their position, but would I really trust a legal professional that I just met in a foreign country who is telling me that I must tell the truth over individuals with familial or cultural ties that go back years?

Regardless of what I would do, just because a refugee claimant is not being completely honest does not mean that the real story is any less traumatic, damaging or valid as a refugee claim.

Conclusion

Many who have their refugee claims rejected have led lives which most people would qualify as deserving of refugee protection. Many claimants fall within this grey zone. Without acknowledging the problems associated with painting black and white images of refugees and refugee claimants, it is impossible to design and maintain a system that determines refugee status that is fair and just.

For more information:

Myths of the bogus refugee claimant

Challenging The Myths: The Truth About Canadian Refugee Law

 

Access to Justice Issues in Canadian Refugee Law

This piece complements my most recent blog entry about access to justice issues in the criminal law context, focusing instead on some issues in refugee law. The information discussed in this piece should not be relied upon as legal advice or information. Please refer to Citizenship and Immigration Canada, Legal Aid Ontario or the Immigration and Refugee Board for more information. 

Refugee law is a highly complex and constantly evolving area of the law. Because of this, many access to justice (A2J) issues in this body of law remain hard to understand unless you are working in or going through the refugee determination system yourself.

I will outline here, in non-lawyer talk, three major A2J issues in refugee law: the amount of remuneration through legal aid certificates, ensuring quality representation and strict time limits under the new refugee determination system.

1) Remuneration for lawyers through legal aid certificates for refugee claims

Much like in criminal law, Legal Aid Ontario provides legal aid certificates in refugee law allowing private lawyers to represent refugee claimants and get paid by the state. Refugee claimants are subject to a merit and financial assessment and then a certain number of hours are paid to private lawyers for particular steps in the refugee determination process.

I have heard from many private lawyers practicing refugee law that the amount paid through legal aid certificates is insufficient considering the amount of time needed to provide quality representation. This is a hard claim to assess because it depends on what we are comparing to and it involves expectations which may vary across different lawyers and organisations.

Putting these difficulties aside, let’s take this claim as true. Insufficient remuneration for representing clients with legal aid certificate would drive a refugee lawyer in private practice to accept a high number legal aid certificates in order to make a profit. This would lead to less time being spent with each specific client, potentially diminishing the quality of representation. Access to justice in the refugee claim process means access to quality representation, and if remuneration is not sufficient, that quality is threatened.

2) The difficulty of ensuring quality of representation in refugee hearings

Refugee hearings are private and anybody attending a hearing must have the explicit permission of the refugee claimant. This means that problems with incompetent or low quality representation are less likely to surface as compared to other areas of law.

In addition, many claimants are vulnerable, come from places where authority is to be mistrusted, and do not speak English or French. This type of claimant is less likely to seek redress for incompetent representation, especially since a negative refugee claim most often entails a loss of immigration status.

The ability to seek and obtain redress when representation has not been up adequate is another important aspect of access to justice, and this right is particularly hard to ensure in the refugee claim context.

3) Strict time limits under the new refugee determination system

The Conservative government made sweeping changes to the refugee determination process in December 2012. A major component of these changes was the creation of time limits ensuring that a refugee hearing is held three months after making a claim, at the very latest. Under the old system, refugee hearings could be scheduled years after a claim was made.

Preparing for a refugee hearing in less than three months is a feat. Here’s why:

1. Gathering evidence often takes longer than three months

Evidence, such as police and medical reports, support letters and documents proving identity, is required from home countries to support a refugee claim. The time it takes to prepare, gather and send off, review and submit all relevant evidence surpasses three months. This means that refugee hearings are being held without important documentation needed to support the claim.

2. Three months is not enough time for many claimants to feel emotionally and psychologically prepared

Refugee claimants have experienced trauma, pain and suffering, and three months is not enough time for many claimants to find the sense of stability needed to testify clearly and coherently. Testimony lacking clarity and coherence may unjustly lead to the rejection of a claim.

Weeding out the strongest claims

I worry that such short time limits disproportionately weed out those with the strongest claims. Refugee claimants with the strongest claims often have long and complicated stories and travel trajectories requiring a lot of support evidence. It is these claimants that also require emotional and psychological support over a significant period of time in order to be able to testify successfully at their hearing.

An alternative

While it is important that the refugee determination process is efficient, this efficiency must not sacrifice fairness and access to justice. When time limitations lead to a negative decision that would have been positive if more time was allowed, it is not fair or just.

A preferable approach would be to give members (the judge-like person at the Immigration and Refugee Board who makes a decision on refugee hearings) the discretion to postpone hearings to ensure that refugee claimant is sufficiently prepared, using his or her judgement in each particular case. This would give increase flexibility yet also prevent abuse because it is the member who would make the final decision.

Conclusion

As a complicated body of law which is easily influenced by political trends and far removed from the everyday lives of most Canadians, it is important to be aware of the important new and ongoing access to justice issues in refugee law. I have only discussed a few here, but I leave you with a few valuable resources which you can consult to keep up to date with these issues:

The Canadian Council for Refugees

Refugee Reform (University of Ottawa)

Canadian Association of Refugee Lawyers

Refugee Rights in Ontario

 

Legal Aid and the Criminal Justice System in Ontario: the Challenges

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.

INTRODUCTION

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.

THE CHALLENGES

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.

CONCLUSION

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.

How LSUC’s four-pronged reinvigoration of the legal profession in Ontario can help improve access to justice

LSUC is shaking up the legal profession in Ontario, and the proposed innovations – with our involvement and support – have the potential to greatly improve access to justice.

INNOVATION #1: EXPANDING THE ROLE OF PARALEGALS

LSUC has already considered granting more powers and appearance rights to paralegals. A motion to expand the role of paralegals was prepared for LSUC’s 2013 AGM, but it was abandoned at the last minute amidst the controversy surrounding the topic. This issue, however, is certain to come up again in the future.

With prices that are usually much lower than the price of a lawyer, expanding paralegal services would mean that more people can access the law and justice at a reasonable cost and this is a good thing. See my blog entry about this topic here.

INNOVATION #2: THE NEW LAW PRACTICE PROGRAM

When faced with the crisis of law school graduates not finding articling positions and therefore being unable to complete all the requirements of becoming a lawyer, LSUC decided to create the new Law Practice Program – an alternative lawyer licensing scheme with four months of classes and a four-month work placement. While the costs associated with this program have been unfairly placed on the backs of articling students, this new program represents another way in which access to justice can be improved. If you put aside the costs for a moment, this program guarantees that all law school graduates will be able to become lawyers regardless of whether or not they secure an articling position. More lawyers should bring the costs of legal services down (at least according to the traditional economic principles of supply and demand). See my blog entry about this topic here.

INNOVATION #3: ALTERNATIVE BUSINESS STRUCTURES IN THE PROVISION OF LEGAL SERVICES

LSUC is currently conducting a consultation on Alternative Business Structures, which, if adopted, would potentially allow non-lawyers to own law firms and other business entities other than law firms to provide legal services. This would spur many changes in the legal environment of Ontario and potentially promote innovative ways to make the law and justice more accessible and affordable. I’m sure many lawyers are against this new idea because it threatens the quasi-monopoly that lawyers have over providing legal services, but I think it has great potential to address and rectify the access-to-justice crisis currently facing the province.

INNOVATION #4: LAKEHEAD UNIVERSITY LAW SCHOOL

Lakehead University, in Thunder Bay, Ontario, has recently opened a law school with a special focus on aboriginal law. The hope is that the school’s location and particular focus will help encourage more lawyers to practice in Northern Ontario, where many communities lack sufficient access to legal services. In addition, students get a more practical-oriented degree and are allowed to skip the articling requirement, becoming lawyers simply by finishing the program and writing the bar exam. This helps access to justice because it will improve accessibility of legal services in Northern Ontario and, with a shorter program, it may encourage more people to go to law school who would not otherwise be able to afford law school and articling fees. Reduced fees may contribute to a greater racial and class diversity in law school students, and both of these things will potentially lead to more recent graduates to embark on careers in social justice.

THE MOVEMENT IS ONLY BEGINNING

I am sure there are and will continue to be resistance to these innovations because essentially, they threaten the status quo of the legal profession in Ontario. There are many lawyers who benefit directly from the status quo.

The problem, however, is that the status quo has led to an access-to-justice crisis and this needs to change. By increasing the role of paralegals, exploring Alternative Business Structures in the provision of legal services, and removing barriers to becoming a lawyer through the Law Practice Program and Lakehead’s unique law school, LSUC is innovating the legal profession in ways that can directly improve the access-to-justice crisis in Ontario.

The fundamental and most important question is…

As lawyers, students, citizens and access to justice allies, what can we do to ensure that the potential of these proposed innovations to improve access to justice is realized?

Any ideas?