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Criminal

Justice denied to many because of strict legal aid rules: Zita

More people charged with criminal offences are defending themselves in court, mostly because they can’t afford a lawyer, but Toronto criminal lawyer Jessica Zita says proper legal representation is a must.

“It’s no secret that there have been cuts to funding for legal aid, which means many accused people who would have received it in the past are not getting representation now,” says Zita, an associate with Hicks Adams LLP.

“We’re talking about people charged with drug-related offences to murder,” she tells AdvocateDaily.com. A recent Toronto Star story outlined some of the issues faced by Legal Aid Ontario (LAO) and the justice system. Another story suggests the increase in self-representation reflects systemic problems.

“We’re also seeing people who wish to hire another lawyer but can’t because legal aid won’t extend the funding to hire another lawyer,” Zita says.

“The original lawyer stopped representing them and the accused is now left in this in-between place where they really can’t do anything because they don’t have legal aid funding to hire another lawyer.”

It’s an upsetting situation that leaves people helpless before the court, she says.

“In most cases, I would advise against attending court on your own, but sometimes accused people are left without a choice,” Zita says. “They simply cannot afford a lawyer.”

Much of Zita's work involves appeals. The early stages of preparing an outline of the merits for an appeal is often done without the benefit of transcripts or in-depth knowledge of the case, she says.

“Legal aid makes a decision based on the merits of the case and the recent trend is for them to refuse funding for the most serious offences, those where people should be almost guaranteed an ability to appeal,” Zita says.  

Zita says appellants, through their lawyers, can apply for funding under s. 684 of the Criminal Code and ask the Court of Appeal for financial coverage. But it takes time.

Others are trapped between having an income that makes them ineligible for legal aid but not enough to afford a lawyer. For example, an accused who has one child would be eligible for legal aid if they earn less than $14,453. But if they earn less than $16,728, LAO may want contributions to repay some or all of the legal fees.

A Law Society of Ontario study found about 40 per cent of self-represented litigants earns less than $30,000 a year.

“These people are on the grid, filing income tax returns, contributing to society,” says Zita. “Because they are making a little too much, they can’t get funding. But they also can’t afford a lawyer.

“Those situations are upsetting because these are people who often end up resolving a case when they shouldn’t,” says Zita. “It’s taxing for accused persons to continue going to court and so they probably end up just wanting their case to go away.”

That could result in a person agreeing to a guilty plea because it’s easier than dealing with the courts. The problem is they risk wrongful convictions and increasing the likelihood of being picked up again for another matter, she says.

Not only that, they’ll now have a criminal record “because they took the ‘easy way out’  to make the charge go away” and get themselves out of the navigational nightmare of a complicated court system, says Zita.

“There’s no one there to help them through it,” she says. “By reducing legal aid funding it also creates a greater burden on the system because it is carrying these people for longer periods of time,” which increases costs for operation of court services.

There are a few options, like legal clinics or duty counsel, for those who can’t afford lawyers, Zita says, but they don’t alleviate the basic issue that a growing number of people can’t afford a lawyer.

“I’m not in a position to say that legal aid needs to open up their pockets more,” she says, “but I think there needs to be a discussion between those who are in the field and those who are making decisions about legal aid, about what we can do to fix some of these issues.”

Zita says she suspects those who represent themselves may receive longer sentences, she says.

“I think they may not be able to fairly negotiate for themselves. The way sentencing works is that two lawyers go before a judge, they discuss different positions, they argue the law in support of those positions and unless you access case law, which most people don’t, most accused are not equipped to make those arguments on behalf of themselves,” Zita says.

“Often the Crown will offer a position and the accused will just accept it,” she says. “It’s daunting for a lawyer, I can only imagine how difficult it is for someone who probably has no idea what is occurring.

“It’s scary,” Zita says. “The judges are very good at accommodating a self-represented accused person. But that doesn’t make it any easier.”

She urges everyone who has to go to court to seek legal advice and representation.

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