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Legal aid changes could mean more self-represented litigants | Emmett Bisbee

Wednesday, September 02, 2020 @ 9:47 AM | By Emmett Bisbee

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Emmett Bisbee %>
Emmett Bisbee
The availability of legal aid and the challenges facing self-represented litigants (SRLs) in the justice system go hand-in-hand. When governments choose to cut legal aid spending, many will have no choice but to represent themselves in court. In fact, the Ontario government’s recent introduction of Bill 161 has the potential to increase the number of SRLs in the province. The legislation opens the door to service reductions that would affect those most in need of legal assistance and jeopardize their access to justice.

Bill 161 was introduced in the Legislative Assembly of Ontario by Attorney General Doug Downey on Dec. 9, 2019. It can best be described as an “omnibus” bill related to the justice system. It introduces major changes to areas such as class action lawsuits, civil asset forfeiture, and, importantly for SRLs, legal aid services.

Schedule 15 of the Bill repeals the Legal Aid Services Act, 1998, and enacts the Legal Aid Services Act, 2020 in its place. The most significant proposed change is with respect to the services provided by Legal Aid Ontario (LAO). Section 13(1) of the current Act states that LAO “shall provide legal aid services in the areas of criminal law, family law, clinic law and mental health law” to eligible persons and may provide services in areas outside of those four fields. Now, Bill 161 states that LAO “may, subject to the regulations, provide legal aid services” in a large number of legal areas (emphasis added).

This change from obligatory to permissive language means that absent any regulations requiring certain services to be provided, LAO could choose to not provide services at its discretion — to any person, related to any field of law, and for any number of reasons. Future service provision could also be limited by cabinet or the attorney general through regulations. Allowing such unfettered government discretion in the realm of legal aid risks denying legal representation to those most in need.

Prior to Bill 161, the number of people excluded by LAO’s financial eligibility threshold and forced into self-representation was already high (see R. v. Moodie 2016 ONSC 3469). Changing LAO’s mandate from “shall provide” to “may, subject to regulations, provide” creates the possibility that more people will be denied legal representation for budgetary or other reasons.

LAO or the government could conceivably establish further limitations on the types of cases that private lawyers on legal aid certificates could take on or change the ways services are delivered to less expensive (and potentially less effective) means. Such modifications could increase the number of SRLs and make it more difficult for individuals to navigate the court system.

Downey responded to concerns during debate in the legislature, noting, “I want to be clear and unambiguous: LAO will continue to provide legal aid services in all areas of law we presently provide.” Yet, there are reasons to be skeptical. The government made headlines last year when it cut LAO’s budget by $133 million — or 30 per cent of its annual budget — and initially announced that the cut would be a permanent measure. It later backtracked on the cuts for future years.

Bill 161 also transfers the financial burden associated with state-funded counsel orders from the Crown to LAO — this will put further strain on LAO’s already limited budget. These moves suggest the Ontario government seeks to reduce the provision of legal aid services (and associated costs) in the province; Bill 161 appears to be in line with this objective.

To force more people into self-representation would be to further diminish access to justice. SRLs are often greatly disadvantaged in court. The federal Department of Justice notes that in criminal cases, “many unrepresented accused will experience serious negative impacts as a result of the court process.”

Among the many disadvantages of self-representing, SRLs are more prone to making tactical mistakes during proceedings, not understanding their rights, thinking solely about whether they would go to jail (and not other relevant considerations), pleading guilty immediately just to get out of jail or to lift bail conditions, poorly cross-examining witnesses and “making accidental and damaging admissions.”

In family matters, a study published by the Canadian Bar Foundation found that 46 per cent of judges surveyed believe that SRLs fare worse in child custody cases, and 65 per cent held that belief with respect to property division and income support matters. The Canadian Bar Association has noted that judges and lawyers are “united in the belief that unrepresented litigants fare worse in court and experience poorer outcomes compared to those who have access to lawyers.”

A properly funded and robust legal aid system is necessary to prevent people from being forced to self-represent. Further service cuts, which Bill 161 enables, would only exacerbate the problem.

Rather than cut legal aid spending and force more litigants into self-representation, Ontario should increase funding levels. Studies have shown that such a move is actually fiscally prudent.

The Canadian Bar Association points out that legal aid spending can save taxpayer dollars by “reducing domestic violence, helping children leave foster care more quickly, reducing evictions and alleviating homelessness, protecting patient health and helping low-income people participate in federal safety-net programs.” Properly represented litigants are more likely to obtain positive outcomes. It finds that the average social return on legal aid is $6 for every dollar spent.

Though reform of legal aid may be necessary, Bill 161 is a step in the wrong direction. Governments should think twice before forcing people into self-representation through reducing the availability of legal aid. Investing in legal aid is prudent for both government and litigants alike and underscores society’s commitment to justice for all.

This article is the last in a series on self-represented litigants. The first article: Law schools must teach about self-represented litigants | Cassandra Richards; second article: Immigration detention: Lack of legal representation | Madeleine Andrew-Gee; third article: COVID-19 is modernizing courtrooms — but for whom? | Kendra Landry; fourth article: What to think about when thinking about self-represented litigants | Joel Miller; fifth article: Access to justice for self-represented litigants post-COVID-19 | Savleen Sur; sixth article: Self-represented litigants deserve a better system — What about mediation? | Nicole Maylor.

Emmett Bisbee is a second year law student at McGill University who is interested in pursuing a career in public law. He can be reached via LinkedIn.

Illustration by Chris Yates/Law360

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