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| Jessica Zita |
This is a slap in the face to access to justice. Funding cutbacks in this sense will only further the accessibility divide: the least vulnerable members of society will have even less access to the legal help they fundamentally need and are constitutionally prescribed, all the while making legal services a more luxurious expenditure. Accessibility to the legal system under which everyone is bound will become limited to privileged few.
Premier Doug Ford believes that this reduction will put money back in the hands of taxpayers, and out of lawyers’ pockets.
He insinuates the LAO funds have been misused at the hands of lawyers. And while he is correct in his understanding that there are lawyers who rely heavily on LAO, he is dangerously wrong in his bald insinuations that these lawyers are overpaid.
This is a fact criminal defence lawyers know well. LAO fees pay much less than the market value of their services.
Many if not all defence lawyers who accept LAO are not doing so to line their wallets; on the contrary, they are doing so because they believe that any individual subject to the criminal justice system is entitled to representation. At its core, they accept LAO simply to help those in need.
So yes, lawyers, especially criminal defence lawyers, rely heavily on LAO funding. But that’s not a choice: it’s an indication of who requires help the most.
What is sadly forgotten here is the delicate balance criminal defence lawyers strike between individuals and the state. Under s. 10(b) of the Canadian Charter of Rights and Freedoms, everyone has a right to counsel of choice.
When a citizen is brought before the courts as an accused person, it is at the behest of the Crown attorney on behalf of the Queen. The Crown has a case to prove, as an individual is innocent until proven guilty.
This may be trite to most, but this basic tenet of our justice system that benefits us all seems to be lost on the current provincial government. A lawyer defending an individual against the allegations of the state has always faced an uphill battle. The state has infinite resources to tap into; the majority of defence lawyers, by contrast, simply do not.
A defence lawyer stands between the accused and the allegations — and vast resources — of the state. Imagine then what even further cutbacks to an already strained system will do.
Ford reacted to early responses to his funding cuts by making public his personal number and inviting members of the public to contact him, guaranteeing that they would continue to receive LAO certificates. His main gripe, it seems, is that more money is being spent on lawyer fees than on actual cases.
It is unclear what exactly that means, but it appears that Premier Ford thinks that LAO-accepting lawyers need to be made “more accountable.” In a system where defence lawyers already willingly accept a pay cut by market standards to ensure that the Crown is in fact accountable to the public in its prosecutions, it yet again remains unclear what Premier Ford is seeking to achieve.
In continuing to justify these reductions, Premier Ford has said that “[t]he people that actually need the system to help them, they aren’t getting the proper support.” Assume he means that the money made available by the LAO cuts will be put towards court administration. Perhaps at best that would provide accused persons with more in-court resources. They would still require counsel. LAO empowers individuals with the ability to choose a lawyer.
Without this backing, an accused will have no choice but to self-represent. Defence lawyers provide value to the courts and Crown by assisting an accused in navigating the justice system efficiently. A self-represented accused will no doubt cause delay and tie up the justice system unimaginably. Not only that, this will also increase wrongful convictions. Imagine a David vs. Goliath-type battle, without David. There’s no battle, no contest.
This is not what the drafters of the Charter envisioned.
Premier Ford’s sentiments are misguided and clearly dangerous. Defence lawyers are not the bad guys; they provide value in ensuring that our criminal justice system is efficient and effective. The Ford government’s current stance will have devastating effects on generations to come if not mitigated soon.
The money saved as a result of today’s LAO cuts will pale in comparison to the ruin that will become our justice system, and the resulting cost that will no doubt mount from having to manage self-represented accused without assistance or ability to access counsel.
There will also be further strain added to the courts by the anticipated increase in constitutional challenges that will be brought from this obvious violation of Charter s. 10(b). These cuts to legal aid hurt society as a whole and are a devastating affront to justice.
Jessica Zita is a criminal defence lawyer and associate with Hicks Adams LLP, based in Toronto. Contact her at jzita@hicksadams.ca.
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