The Constitutionality of the Recent Legal Aid Cuts in Ontario
By: Adam Newman, Associate
“Under the Ontario legal aid certificate system, it is because defence lawyers are willing to accept legal aid certificates and provide competent and effective counsel to accused facing criminal charges that the state is able to fulfill its constitutional obligation.”
(R v Peterman, 2004 CarswellOnt 1694 ONCA at Para 20)
Ford Government Announces Legal Aid Cuts
The Ford Government has announced a 30 percent budget cut to Legal Aid Ontario this year. In response, Legal Aid Ontario said this year it will cut $38 million from the $251 million it allocates to compensating private lawyers, including those practicing criminal and immigration law, and is considering reducing what it calls “discretionary payments.” (“’Cruel’ Legal Aid Cuts Will Further Erode Ontario’s Criminal Justice System” Huff Post, June 1, 2019).
Each certificate that Legal Aid issues comes with it a number of hours it is willing to pay private lawyers for. In 2017-2018 Legal Aid Ontario issued 56,777 certificates to individuals for representation by a private practice (Legal Aid Annual Report 2017-2018). If the lawyer exceeds those numbers of hours, they can apply for a “discretionary increase”.
If the discretionary increase is not granted then the lawyer has worked pro bono for the number of hours they exceeded. This limits lawyers in some situations to choose between:
Working pro bono and properly protecting the rights of people accused with serious crimes;
Not exceeding the hours that Legal Aid gives but not preparing as well as they feel they could have; Or
Not accepting Legal Aid certificates at all.
All three options are unfair to our society.
Legal Aid Services
According to the most recent statistics there is a 53 percent lawyer satisfaction rate with Legal Aid services and a 77 percent client satisfaction rate with Legal Aid services (Legal Aid Annual Report 2017-2018). I would assume that if lawyers were not adequately preparing, the satisfaction rate of would be much less for clients. It is also clear to me that many lawyers accepting Legal Aid rates are not being given enough hours and end up working pro bono. This must mean Criminal Defense lawyers in Ontario who accept Legal Aid are simply not willing to compromise the right of everyone to have a vigorous defense regardless of their socio-economic background.
So what happens when defense lawyers have had enough and are no longer willing to work for free? The courts will need to start catching up with the current economic climate of Legal Aid Ontario.
In R v Peterman, 2004, The Ontario Court of Appeal stated that a criminal trial court’s power lies only with determining whether or not an accused person receives a fair trial under s.7 and s.11(d) of the Charter of Rights and Freedoms. The court can stay the proceedings until the government or Legal Aid provides funding, if the accused cannot afford private counsel and has been denied Legal Aid. This is called a Rowbothom Application. In determining whether a Rowbothom should be ordered the court, must reach its own decision about whether the accused can afford counsel. As was said in Rowbotham at p. 69:
“there may be rare circumstances in which legal aid is denied but the trial judge, after an examination of the means of the accused, is satisfied that the accused, because of the length and complexity of the proceedings or for other reasons, cannot afford to retain counsel to the extent necessary to ensure a fair trial”.
The issue in the case of Peterman is different than in Rowbothom and deals with the reasonableness of the conditions attached to the legal aid certificate including: the denial of compensation for travel time and disbursements, the limit on preparation time, and the requirement of prior approval for junior counsel. The Judge had to decide whether the accused rights to a fair trial was imperiled because of the conditions under which he was being defended.
The situation in Peterman is likely to be more prominent in the coming years because while it may be that Ontarians are being granted legal aid certificates and therefore a Rowbothom situation may not arise, there may be fewer lawyers willing to accept them.
The Ontario Court of Appeal in R v Spied, 1983, said that the Charter protects the rights of accused for counsel of choice:
“The right of an accused to retain counsel of his choice has long been recognized at common law as a fundamental right. It has been carried forth as a singular feature of the Legal Aid Plan in this province and has been inferentially entrenched in the Charter of Rights which guarantees everyone upon arrest or detention the right to retain and instruct counsel without delay. However, although it is a fundamental right and one to be zealously protected by the Court, it is not an absolute right and is subject to reasonable limitations.”
Unfortunately this proposition only stands for the principle that the court will not interfere with an accused’s counsel of choice, but does not put a positive obligation on the court to provide it. Save for two exceptions:
“First, in some unique situations it may be that an accused can establish that he or she can only obtain a fair trial if represented by a particular counsel. In those unusual circumstances, the court may be entitled to make an order to ensure that the accused is represented by that counsel. This was the case in R. v. Fisher and the genesis of the so-called Fisher order. But in making the order, Milliken J. recognized that he was faced with a unique case, and he suggested at para. 20 that the circumstances that led him to make the order might not occur in Saskatchewan “in another thirty years”.
“Second, in unusual circumstances, the court may find that the accused simply cannot find competent counsel to represent him or her on conditions imposed by Legal Aid. One would expect those cases to be exceedingly rare. For example, if the accused was unable to retain local counsel, Legal Aid would inevitably grant authorization to retain out-of-town counsel. See R. v. Swearengen (December 5, 2002, unreported Ont. S.C.J.). Courts in Ontario have, with few exceptions, rejected the proposition that enhanced rates above those authorized by Legal Aid are necessary to ensure that accused receive competent counsel. See R. v. Abu-Taha, [2001] O.J. No. 4278 (Ont. S.C.J.), R. v. Montpellier (Ont. S.C.J.), R. v Swearengen, and R. v. Magda, [2001] O.J. No. 1861 (Ont. S.C.J.).”
Peterman is clear that the burden lies on the accused to present evidence of a unique situation where the accused must have that counsel or else face an unfair trial. These two exceptions affirmed by the jurisprudence are too narrow given the current climate of Legal Aid; it is time for the courts to catch up with the unconstitutional Legal Aid cuts.