The Rewards of Recidivism: The New, and Misguided Approach Legal Aid Funding in Ontario

legal aid ontario cutbacksLate on Friday afternoon, it was announced by Legal Aid Ontario that a deficient is forcing the arms-length government funded organization to scale back dramatically; particularly as it relates to criminal matters. With this announcement came shock, outrage, public complaints, and even criticism to the Attorney General himself.

Many in the criminal bar felt duped into believing things were getting better, not worse.

Yet, if we are being honest with ourselves as criminal defence lawyers in Ontario, the funding of the criminal justice system has been like watching a slow train wreck over the past 5 years. In small, significant ways, funding was diverted away from criminal defence lawyers, and reinvested into large bureaucratic systems within Legal Aid.

Meanwhile, the public was told of increased funding, wider services, and more certificates. In truth, this was nothing more than political euphemisms of increased bureaucracies, more hiring towards a public defender-esque system, and more “certificates” issued to demised individuals’ charges but far fewer funded representation for more people. 

Less pie, more slices.

Perhaps the intentions of the government were in the right place. The belief may have been that increasing administration would create greater efficiencies, and in turn provide greater access to justice for a larger number of people. But, as has been said before, important rights and protections are easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.

And ironically, criminal defence lawyers, as professionals who are trained to be critical, suspicious, and challenging of of state power, met this slow moving crisis with apathetic naiveté. Combine that with solipsistic practices, disjointed priorities, and lack of solidarity on even the most basic of lines in the sand for proper funding – it was all bound to devolve into a race towards the bottom.

Inaction and apathy drove us to the bottom.

In and around 2009, criminal lawyers in Ontario pushed back from what was an obvious disintegration of the system and unfair treatment of lawyers.  A boycott was struck and ascribed to by most criminal lawyers in the Province. Under the influence of the Criminal Lawyers’ Association, counsel stood strong and began boycotting taking cases under the Legal Aid system. In time, and as could be expected, the entire justice system started to collapse on itself.  Legal Aid found itself in a very vulnerable position without the staff or means to cover unrepresented accused in the province.

The pressure on the government came from many sources. Eventually judges began to push back, Crown’s knew cases were in jeopardy, and funding to Legal Aid came.

However, not since the 2010 boycott and Memorandum of Understanding forged out of this stand off was there any meaningful pressure placed on the government.  Rather, the years that followed created an environment that allowed Legal Aid to slowly and surely increase staff funding and increase its bureaucratic size that has both enabled and exacerbated the irreparable funding crisis that Friday’s announcement made clear. Just this April, the Memorandum of Understanding the so many criminal lawyers in the Province made huge sacrifices to obtain, ended with a whimper and unnoticed by nearly everyone – even defence lawyers.

We failed to keep the pressure on. Failed to adapt. Failed to advance.

Forever looking back, defence lawyers in the Province failed to ask in a serious and committed way how it could be, and how all participants need to adapt. Criminal lawyers held on to nostalgic notions of how Legal Aid once was, rather than how it needs to be. Essentially, we all forgot and neglected how hard we all need to fight to preserve it all. We were silent in the face of an obvious mission creep by Legal Aid. Whether we liked it or not, the funding and delivery of Legal Aid was changing, and we refused to set the conversation.

Like ostriches with heads in the sand, we watched with hopeless optimism that idealistic notions (and hashtags) of “justice” and “fairness” and “access” would prevail.  In truth, these buzz words do nothing more than reverberate in legal echo chambers. We led ourselves to believe that injustice and suffering alone, would easily translate into political pressure to change and reparations of the disintegration of a well-funded private bar to assist indigent accused.

There is no turning back. The climate has changed permanently.

But everyone knows that government funding and attention never comes from human suffering, or injustice per se. It’s only when such things can translate into political pressure and emotive responses does change come.

Whether it is doctors, teachers, police, or other organizations – their voices are heard. At every juncture, and quite rightly, there is government push back on funding or cuts, these groups have sophisticated media plans to combat such cuts. Commercials of suffering, reminders of effects, repetition of neglect.

Yet criminal lawyers remained silent when opportunities arose.  We did not say another other than complaints to each other and griping in the Courtroom hallways.  We are now left holding the bag while limited governmental resources have gone to other areas more worthwhile in the eyes of the public.  Even in law, funds have increased for victims, family law, immigration, and virtually every other area of law even though the criminal justice system is most in need.

There is far more inaction to injustice than action in this world, and the Legal Aid system in Ontario was just another small example of that in comparison. It is also inaction that we need to collectively share as defence lawyers. Government inaction is the result; but lawyers’ inaction was the climate.

To make matters worse, the cuts we see today are a very small ice shelf to what will soon be the continental glacier falling into the sea to never solidify again. The Legal Aid system of 2025 will bear no resemblance to the system in place today, let alone glory years of it in the 90s and early 2000s.

Bygones.

A substantial likelihood of jail, is a substantial likelihood of funding only recidivists.

However, and since we are holding on to the fraying ends of our criminal justice system from a private-funding perspective, let’s at least point out one thing fundamentally wrong with the present misguided criteria that Legal Aid has set out for funding with these new changes.

Namely, Legal Aid has stated that they are now determining eligibility based upon the applicant’s “substantial likelihood of jail”. Such a criterion critically misaligned with the proper functioning of a justice system.

Here’s why:

Most people who are charged with a crime, and do not have a criminal record, are unlikely to go to jail from a statistical point of view.  There are exceptions to this if the crime is serious, sexual in nature, involves mandatory minimum, or other factors that would make a non-custodial sentence offensive.

However, a large portion of people who come before the Courts are not career criminals.  In fact, the vast majority of people fall into the category of “made a serious mistake”, or “didn’t do it” than the career criminal, gangster, or hoodlum – in fact, these television like mobsters are quite rare.

So then, applying the test of “substantial likelihood of jail” you are left with two things:

a) massive savings (hurrah government!), and

b) funding directed to those who have little regard for keeping a clean criminal records and who spend a considerable amount of time coming and going from jail.

In short, this system rewards recidivists, and does nothing to protect the most vulnerable and ignorant in the system.

More importantly, by taking away a person’s “one shot” at keeping a clean criminal record by having proper representation, you are very likely to stigmatize them for the rest of their lives.  As a consequence, you have those who made a poor choice, or irrational mistake in their otherwise blemish-free life now a convicted criminal and incapable of obtaining a job.

To be clear, this is not saying those who commit crimes should go free.  Quite the contrary. This is about fairness and nothing more.

But since the government seems to know be allocating that form of fairness by limiting who does, and does not, get funded defence counsel – perhaps the recidivists who always have a substantial likelihood of jail, should be the last on the list.

It makes far more sense to issue a certificate to a University Student charged with a theft he claims he did not do, than someone shaving their 4th gun conviction who know faces 12 years in the pen. In an ideal world, everyone would get a defence, but that is clearly no longer the world (or Ontario) we live in and if we are to try and preserve fairness as much as possible, funding should go to those who have not proven their deviance and indifference to functioning as a contributing member of society.

While we can, at least change the test to whether a conviction will have a “substantial negative impact upon their life” and then maybe we can build up from there.

2017-02-05T20:22:25+00:00

About the Author:

Sean Robichaud is lead counsel and owner of Robichaud's.