Pandemic poses Dangerous Pressures on Ontario Legal Aid Clinics

Padmaja Rengamannar | September 11th, 2020

The pandemic has had a profound influence on the way the world operates. People now work and learn from the comforts of their homes and pay fewer visits to their local grocers. Legislatures continue to function remotely to serve their citizens. Globally, lawmakers seldom meet in person unless in the case of an emergency meeting regarding the novel Coronavirus pandemic where they gather in, as good as, vacant chambers.(1) The pandemic has drastically altered our earlier modes of operation and this has generated ripple effects that permeate through institutions such as the Canadian Federal and Provincial Governments and their relations. Chiefly, it has exacerbated the funding crisis faced by Legal Aid Clinics throughout Ontario and other provinces. This threatens the survival and protection of vulnerable populations, such as economically deprived adults who have been accused of serious and complicated crimes, immigrants and refugees, and minority groups such as single mothers, foster children, and the indigenous peoples of Canada.(2)

The Legal Aid Program in Canada was established in the early 1950s to provide legal aid services for financially disadvantaged individuals.(3) The program is based on the collaborative efforts of the federal and provincial governments and the territories, which act under sections 91 and 92 of the 1867 Constitution Act. Respectively, each delineates the collective responsibility of the Federal Government to “criminal law-making and procedure” and the Provincial and Territorial Governments to the “administration of justice, including legal aid”.(4) In addition to the goal of providing legal aid services such as lawyers, to low-income individuals, some other overarching objectives of the Legal Aid Program include the promotion of “fair legal proceedings” and ensuring to fulfill Canada’s Criminal Legal Aid responsibilities, cost-effectively.(5)

Presently, Legal Aid Clinics across Ontario are facing an economic downturn with the advent of alarming budget cuts to funding, in response to the pandemic. A portion of the Legal Aid Ontario’s funding comes from the Law Foundation of Ontario, through the interests accrued on trust accounts of lawyers and paralegals. However, the cut to interest rates made by the Bank of Canada resulted in a decrease from 1.5 percentage points to 0.25 percent.(6) This has been predicted to decrease the Law Foundation of Ontario’s contribution to LAO, from $91 million in 2019-2020 to $30 million in 2020-2021.(7) As a result of the pandemic, residential house evictions, mental health and domestic violence have been some of the prime setbacks experienced during this period. The budget cuts only exacerbate these problems and put vulnerable populations in a very dangerous spot. Nevertheless, government aids for economic relief, and a temporary moratorium on rent and house evictions have been offered to keep impacted individuals afloat. However, when this support is lifted the repercussions will be brought to light, creating unimaginable tensions for Legal Aid clinics who strive to serve unprotected and weak individuals who make up their current client base. Thus, Legal Aid clinics seek funding from the federal government to ensure that marginalized individuals who have been doubly impacted by the pandemic, have access to legal aid services and justice.

Along with the interest and budget cuts as a response to the pandemic, the introduction of Bill 161, in hopes of modernizing Ontario’s justice system, will compound the difficulties for vulnerable populations when it comes to accessing legal aid. Bill 161 prioritizes cost-effectiveness over the provision of access to legal aid and justice.(8) The Bill has reformed the Legal Aid Services Act, 1998, where the services offered by Legal Aid Ontario (LAO) entailed in Section 13(1), highlighted that LAO, “shall provide legal aid services in the areas of criminal law, family law, clinic law, and mental health law”(9) to eligible individuals from low-income backgrounds. While the revised Legal Aid Services Act, of 2020 states that LAO, “may, subject to the regulations, provide legal aid services”(10) implying a shift from a duty to provide, to a service that may be provided if the given context calls for it allowing for some freedom to deny these services to people.(11)

Budget cuts and new laws that restrict the Legal Aid services provided within and across provinces, increasingly force litigants to self-represent in courts. Self-representing litigants are at a greater disadvantage due to deficiencies in their knowledge of their own rights and the process of legal proceedings and the future implications of pleading guilty or giving impulsive and dangerous admissions.(12) The cuts to legal aid, create an impediment to access justice for marginalized and vulnerable populations. Interest and budget cuts regarding Legal Aid services have long existed since the 2008 global economic recession, and what will help alleviate the challenges to the LAO’s budget planning is finding a way to stabilize the funding.(13)

Endnotes

1. George Tsereteli, “Parliaments must continue to function and serve the people during the coronavirus pandemic” Euronews, last modified March 31, 2020, https://www.euronews.com/2020/03/31/parliaments-must-continue-to-function-serve-the-people-during-coronavirus-pandemic-view

2. "Report of the Standing Committee on Justice and Human Rights," Welcome to the House of Commons of Canada, last modified October 2017, https://www.ourcommons.ca/Content/Committee/421/JUST/Reports/RP9186121/justrp06/justrp06-e.pdf.

3. Government of Canada,"Legal Aid Program," Department of Justice /Ministère De La Justice, last modified December 13, 2019, https://www.justice.gc.ca/eng/fund-fina/gov-gouv/aid-aide.html.

4. Government of Canada, “Legal Aid Program”

5. Government of Canada, “Legal Aid Program”

6. Alyshah Hasham, “Legal Aid Ontario facing up to $70 million fundingdrop amid COVID-19 ‘perfect storm’ “, The Star, last modified July 14, 2020, https://www.thestar.com/news/canada/2020/07/13/legal-aid-ontario-facing-up-to-70-million-funding-drop-amid-covid-19-perfect-storm.html

7. Hasham, “Legal Aid Ontario facing up to $70 million fundingdrop”

8. Staff, "Proposed Ontario Justice Modernization Law Would Undermine Access to System, Experts Say," Global News, last modified June 10, 2020, https://globalnews.ca/news/7050359/ontario-bill-161-justice-system-modernization/.

9. Emmett Bisbee, “Legal aid changes could mean more self-represented litigants”, The Lawyer’s Daily, last modified September 2, 2020 ,https://www.thelawyersdaily.ca/articles/20767/legal-aid-changes-could-mean-more-self-represented-litigants-emmett-bisbee

10. Bisbee, “Legal aid changes could mean more self-represented litigants”

11. Bisbee, “Legal aid changes could mean more self-represented litigants”

12. Bisbee, “Legal aid changes could mean more self-represented litigants”

13. Hasham, “Legal Aid Ontario facing up to $70 million fundingdrop”