How the underfunding of legal aid pushes the poor into the prison system
by Kabir Joshi-Vijayan - BASICS #14 (June / July 2009)
BASICS #14 (June / July 2009)
The province’s criminal defense counsels are refusing to take on future homicide, guns and gangs cases. They say it is in desperate protest to the province’s severe underfunding of legal aid, which results in pronounced disparity in the courtroom between the defense and government prosecution. Major reports have verified serious systematic problems arising from the resource-deficient legal aid program, including wrongful convictions and excessively long prison sentences. In addition to the already insufficient pay rates, defense lawyers say that the strict pay caps per case is a setup for failure. The more work done for clients on legal aid, the more money the representing lawyer loses.
Legal Aid Ontario is a government funded nonprofit corporation established 40 years ago. Its intention is to provide free legal services to the poor in order to meet the requirements of the Canada’s Charter of Rights and Freedoms prescribing equal justice for all. However, the eligibility rules are so restrictive that only the extremely poor ever qualify (those earning $15,000 a year or less). That means a vast majority of people unable to afford legal representation are effectively shut out of the justice system. In addition, not all cases are covered, including certain criminal charges and employment problems. When a case is accepted, there is a woefully low limit to the amount of money allotted – meaning a woefully low limit to the amount of justice afforded the poor.
The president of the Criminal Lawyers’ Association, Frank Addario, says the drastic decision to refuse taking serious criminal cases is an effort to “pull back the curtain” on a problem they have been “hiding for the government for two decades”. But that raises the troubling question of why criminal lawyers were concealing such a serious breach of the rule of law and judicial fairness in the first place.
The reality is that inequity in the legal system goes beyond the issue of criminal law (civil legal aid is also in crisis and includes family law, immigrant and refugee law and poverty law issues). There are attacks on poor and racialized people at almost every point in the inaccessible Ontario justice system, and it is a grievous problem in every province of Canada. Poor and racialized people are more likely to be picked up by and brutalized by police, denied bail, appear in court (without the constitutional right of representation) and go to jail. The underfunding of the legal aid program follows a pattern of sabotage through underfunding of all social programs for the poor and working class. It also coincides with massive funding to prosecution and court services, and for specialized police units such as the Guns and Gangs Task Force (with its legacy of racism, violence and false-arrests). In fact, 85% of all criminal justice funding is directed at policing and corrections, showing the government prioritizes sending people into the prison system over giving them justice.
Despite the dedicated work of some excellent lawyers and some significant wins, putting more money into a systematically corrupted legal aid system will not change things significantly. The overriding problems remain. We have excessive and discriminatory police practices and a huge proportion of defendants continue to go unrepresented in Ontario Courts (with or without an adequately funded legal aid program). These are advocacy issues that the Criminal Lawyers Association has yet to challenge.