Toronto Star Legal Affairs Reporter
Tues., March 10, 2020
To read the story on the Toronto Star website please click here.
The Ontario government’s proposed changes to the legal aid system “will have profoundly negative impacts” on the people served by the province’s community legal clinics, according to a report endorsed by more than 30 law professors from across the province.
The report released Tuesday urges the legislature to reject the government’s proposed legislation.
Instead, the authors call for “public, meaningful, and open consultation with low-income and marginalized communities and their clinics about needed reforms to the legal aid system in Ontario.”
The system took a hit last spring when the government slashed $133 million in funding to Legal Aid Ontario, the independent agency that manages the legal aid plan. LAO also funds Ontario’s 73 community legal clinics, some of which provide general legal services to low-income people on matters such as housing and income security in specific “catchment areas,” while others have provincial mandates in certain issues including HIV/AIDS, children and youth, and the elderly.
Then, at the end of the year, the government announced it was revamping legal aid in Ontario, as part of an omnibus justice bill titled the “Smarter and Stronger Justice Act,” which received second reading in the legislature last week and has been referred to the standing committee on justice policy for further study.
A number of concerns dealing with the proposed act’s impact on community legal clinics are outlined in Tuesday’s report, titled “Neither Smarter nor Stronger,” prepared by five law professors from three Ontario universities — York, Ottawa and Windsor — and a law student.
Among other issues, the report points out that the proposed act removes the explicit purpose found in the current act, which is to “promote access to justice throughout Ontario for low-income individuals,” including by identifying the legal needs of “low-income individuals and of disadvantaged communities.”
The new purpose would be to “facilitate the establishment of a flexible and sustainable legal aid system that provides effective and high-quality legal aid services throughout Ontario in a client-focused and accountable manner while ensuring value for money.”
As critics have previously pointed out, the term “low-income” also does not appear in the proposed act. The government has said it still expects Legal Aid Ontario to serve low-income individuals, but that the change in the proposed legislation is to reflect that some legal aid services may also benefit middle-income people.
“They removed the language of disadvantaged communities,” said Osgoode Hall law professor Janet Mosher, one of the report’s authors, whose areas of research include legal aid and access to justice for marginalized communities.
“And I think that’s especially worrying in the context of what we know is significant growth in income inequality and really fundamental gaps in access to justice.”
The report says placing the focus of a legal aid system on “value for money” rather than “access to justice” suggests funding legal aid is a “short-term investment.”
“We take issue with any suggestion that our legal aid system should be defined primarily in terms of ‘dollars-and-cents,’” the report says. According to research, the authors say, savings ranging from $9 to $16 on social services spending can be achieved for every dollar spent on legal aid.
“Furthermore, there are enormous economic and social benefits to ensuring that individuals have access to stable housing, income security, health care and other social services,” the report states. “These long-term benefits have not been accounted for in the government’s approach.”
The proposed act also removes the ability of clinics to request a reconsideration of an unfavourable funding decision by Legal Aid Ontario, the report states, and removes protections to ensure that the clinics can independently determine the legal needs of their communities.
The language used in legislation is crucial, Mosher said, as it dictates what a government or institution can and can’t do. As an example, the report points out that the current act says Legal Aid Ontario “shall” provide services in criminal, family, clinic and mental health law, while the proposed act says the agency “may” provide services in those areas.
But as Mosher explained: “If a statute says something ‘shall’ happen, that’s always interpreted as mandatory, and if the statutory language is ‘may,’ that is always understood to be permissive, so it gives the government tremendous flexibility about what they decide to do at any given time, or discretion to Legal Aid to decide what to do at any given time.”
The report states that because of the use of “may” instead of “shall,” there’s technically no longer a requirement to fund community clinics at all.
Finally, the report also highlights that under the proposed act, there would no longer be a requirement that the Legal Aid Ontario board have members “with knowledge, skills, and experience with the operation of clinics” and the legal needs of disadvantaged communities.
“This short-sighted approach threatens the basis of our legal aid system and will lead to more Ontarians losing access to basic rights in a context of growing income inequality,” the report concludes.