Criminal Law

Low threshold for legal aid blocks access to justice in serious cases

By Staff

An artificially low-income threshold prevents many people charged with serious criminal offences from getting affordable justice, says Toronto defence lawyer Jordana Goldlist.

Goldlist, the principal of JHG Criminal Law, says while Legal Aid Ontario’s income cutoff prevents many from getting a lawyer to deal with basic criminal charges, it hasn’t resulted in a rush of accused people trying to represent themselves in court on homicide charges. But it is creating a challenge for the system.

“When someone self-represents in a homicide there’s often a question as to their state of mind,” says Goldlist, whose practice is predominantly defending those charged murder cases. “Homicide is a serious charge and they tend to be long trials.”

Self-representation in complex criminal trials means the judge has to take longer to explain the law to the accused at every step, further clogging the court dockets because those trials take longer, she tells

Goldlist says the legal aid system needs to be revamped. As it stands now, those seeking legal aid will be turned away if they make more than $14,500 a year, a figure most people would agree is well below the poverty line in Ontario.

“It also kills me when people claim no income but police seized $30,000 from them along with drugs when they were arrested, yet they can qualify for legal aid," she says. "Whereas a hard-working person just surviving on $25,000 a year won’t qualify.

"Not everyone who is arrested is guilty. They are entitled to a defence, but getting access to justice then becomes an issue of affordability.”

Many in the legal profession have also raised the issue of underfunding and, in 2016, Justice Ian Nordheimer called a halt to a trial over the issue of affordability.

Still, nothing has changed, Goldlist says.

“They can get help from a duty counsel but for a trial in which they risk a criminal record and perhaps jail time, that’s not the best course,” she says.

With a new government at Queen’s Park and new Attorney General Caroline Mulroney, Goldlist is hopeful the issues of access to legal aid in criminal matters will be addressed.

Other judges have also questioned legal aid’s funding of litigants, especially in family law matters.

One judge ruled legal aid’s continued funding of a divorce litigant amounted to an “abuse of process.”

The pressure on an accused who can’t afford a lawyer is palpable, says Goldlist, and prosecutors are well aware that they often hold all the cards and they will press for a conviction. That often forces people to make a deal even if they aren’t guilty.

Then there’s the issue of those accused people with mental health challenges. “We really need a way to deal with those people separately, away from the criminal justice process,” Goldlist says.

“We need more interventions in the community at an earlier stage,” she says. “It’s usually the same old story — mom alone, dad not around, and the family is struggling to put food on the table and keep a roof over their heads.

"We also must do more to stop people from entering the criminal justice system and, when they do, make sure they have access to counsel,” Goldlist says.

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