Criminal Law

Legal aid cuts an attack on ‘the socially disenfranchised’

By Paul Russell, AdvocateDaily.com Contributor

Provincial funding reductions for Legal Aid Ontario (LAO) will limit access to justice and significantly worsen court delays for those who rely on the non-profit corporation, says Toronto criminal lawyer Roots Gadhia.

“This is an attack on the poorest in our community, the socially disenfranchised who cannot afford to hire a lawyer,” says Gadhia, principal of Roots of Law Professional Corporation.

“That’s a really sad irony since legal aid was designed to ensure that everyone received an opportunity to have representation,” she tells AdvocateDaily.com.

“What the Ontario government is doing, in effect, is limiting the amount of representation an individual gets, as well as telling people they don’t have the right to the counsel of their choice.”

According to a Toronto Star story, LAO hopes to save about $16.6 million through administrative cuts and another $13.9 million by changing the ways it deals with the private bar, affecting lawyers like Gadhia who work in criminal or family law and receive LAO funding, known as a certificate, to represent low-income Ontarians in court.

LAO has given notice that, as of July 7, criminal lawyers will no longer be allowed to bill block fees — flat rates paid by legal aid — for bail hearings. Effectively, any private lawyer doing a bail hearing for a certificate client will be doing so without compensation.

“We’re already getting the word from duty counsels that they’re not going to be conducting bail hearings for individuals on serious charges if they have a legal aid certificate,” says Gadhia.

“Legal aid is basically saying to us is, 'We are not going to pay for bail hearings, but if you accept a certificate and handle the bail hearing, you will basically be doing it for free,” she says.

Gadhia predicts that when the new LAO rules come into effect, courts will be backlogged as people try to navigate the system on their own.

“At the most crucial point in the criminal justice system, when people require competent legal representation to ensure they are not left languishing in custody, legal aid is literally denying individuals an opportunity to get bail,” says Gadhia.

Information on the LAO website states that duty counsel will be able to handle all the bail requests, but she says that is not realistic.

“Walk into any bail court in the province, and duty counsel is inundated with the arrests that come in,” Gadhia says, adding duty counsel does not have the time to prepare for each bail or to review the evidence of sureties or related documentation.

“If duty counsel is going to cover every individual who is not on a legal aid certificate, bail court will come to a grinding halt, and people will be stuck in custody, waiting for either a certificate to go into place so that they can hire a lawyer, or for monies to be put together by their families and friends for a lawyer,” she says.

The eligibility level for legal aid — an annual income below $17,731 for a single person without dependents — is also “ridiculously low,” says Gadhia.

Under the new LAO rules, the government will now compensate private bar lawyers for five hours of work to do a bail review, down from 10 hours. She says conducting such reviews can take up to 15 hours. Also, private bar lawyers accepting certificates will no longer be paid appearance administrative fees, states information on the LAO website, a change that Gadhia says is unfair.

“Legal aid requires lawyers to download disbursement requests, print off documents, case management reports and more, for which we receive a fee of approximately $60,” she says. “We have to do that work for any LAO file we take on, and we will not be paid for that work at all.”

According to the LAO website, duty counsel will only go into courtrooms to serve financially and legally eligible clients. Gadhia says that means that if she has a private client and is unable to attend a court date, she will not be able to send duty counsel a note and ask for an adjournment and a new date.

“With this new policy, legal aid won’t even read my letter into court, so I have to personally go and ask that the case be put over, which means I could be stuck in court for hours, and not be paid for it,” she says.

"It’s an untenable situation when we’re effectively being asked to subsidize the justice system by working for free when court staff, including judges and Crown attorneys, are not asked to do the same,” Gadhia says.

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