“All people, regardless of their means and without discrimination, should have access to legal information and publicly-funded professional legal advice to assist them in understanding whether a situation attracts rights and remedies or subjects them to obligations or responsibilities," says the report entitled: “A Vision for Publicly Funded Legal Aid in British Columbia,” issued by the LSBC Legal Aid Task Force.
Nancy Merrill, who chaired the nine-member task force, said: “Everyone should have universal access in terms of a diagnostic service and be able to find what legal services are available.”
While the vision was designed to be inclusive rather than excluding sectors of society, Merrill said the task force did not “drill down” to examine who should provide this advice. The advice would also consider the individual’s ability to access the free market for legal services.
The task force, struck in Sept. 2015, was charged with developing a vision of legal aid for the LSBC that was in line with s.3 of the Legal Profession Act. For the past 15 years, the LSBC has been silent on the issue.
The report, though, stops short of advocating for universal legal aid. Merrill said that the full range of fully funded legal services (advice through to court appearances) would go to a society's more marginalized or at-risk individuals. The LSBC vision sets these out as legal issues involve the state where liberty or security of the individual is at risk; children whose security is at risk; people with mental or intellectual disabilities that impair their ability to access government or community services; family law where the physical, economic, or emotional security of a family is at risk; persons disadvantaged because of poverty, and immigrants and refugees.
Merrill acknowledges these categories are similar to those that the Legal Services Society lists as eligible for legal aid. The difference, she said, in the range of problems that should be considered. The LSBC vision is broader.
“LSS is quite limited in the support it can give,” she said, adding that reduced funding has narrowed the scope of cases it can handle such as criminal cases resulting in the possible incarceration or family law matters that involve domestic violence.
“They (LSS) have had to make difficult decision and decide how best to use their resources.”
While the task force report’s view of legal aid is different from the scope of aid currently provided, it is not "meant to prescribe to government, the Legal Services Society, or any other bodies as to what their vision of legal aid needs to be."
Merrill said the task force report, which has now evolved into a LSBC legal aid committee, has attempted to refrain from “government-bashing.” Rather it sets out a long-term vision and position for the LSBC benchers and subsequent benchers to adhere to.
The LSBC vision is premised on the concept that justice is a fundamental human right but not all individuals have means or ability to pursue that right and that Indigenous people, especially, have been historically disadvantaged in their ability to achieving that right.
The report says the two main barriers to obtaining legal services are the cost and the complexity of the law as it relates to cases. The number of self-represented litigants going to courts plus the time that these cases require — as individuals struggle with the process and concepts of law — all point to the need for more funding to ensure that individuals are receiving justice, it says.
The report also touched upon the need for building a business case for broadening public funding of legal aid. Merrill said this is an aspect that the new legal aid committee is aware of. She said such a business case would be complex but some known figures are available such as self-litigated court cases taken, on average, three days longer and that has impacts on court costs.
The report draws similarities between B.C.'s publicly-funded health care and education systems. Few individuals would be able to afford the true cost of medical care or education today, it says.
“When one accounts for all the necessary expenses of life, most people will have little money left to afford traditional systems of justice or access to many of the services lawyers provide when addressing a legal issue,” the report says. “Money dictates the nature of justice most people will realize in their lives.”
In the same vein that publicly funded health care and education provides a benefit to society, so does publicly funded legal aid, the report argues, as law defines daily interactions, rights and responsibilities, commerce transactions, and, the ordered existence of society and government.
"The rule of law and the promise of a justice society are also supported by helping people live lives in a manner that reduces the need to interact with the formal civil and criminal justice system," the report says.
The report also touched on one of the basic problems that affect legal aid today in B.C.
"The majority of defense counsels who take on legal aid work do so at an economic loss," the report says, noting low tariff rates. “No one is getting rich doing legal aid work.”
A LSBC commissioned study looked at lawyers carrying out legal aid and found most do so because of professional responsibility or the interesting nature of the work. The study also found 40 per cent of legal aid lawyers lost money on cases, while 46 per cent broken even while only 12 per cent managed a profit. Sole practitioners were more likely to break even or turn a profit.
Respondents mentioned the legal aid billing system as a deterrent as well as tariffs. The report considered means of encouraging lawyers to undertake more legal aid work such as giving continued education credits and emphasizing the importance of providing legal aid services to new lawyers entering the profession. It also emphasized the importance of having members of the legal community stress to the public and to their members of the legislative assembly in B.C. the importance of a comprehensive legal aid system and its benefits to society.
The task force members serving with Merrill were Richard Peck (vice-chair), Pinder Cheema, David Crossin (life bencher), Tom Christensen, Lance Finch, Linda Thomas, Sarah Westwood, and Janet Winteringham. Prior to being appointed to provincial court in January, Judge Patricia Stark participated in the task force but was not involved in the drafting of the report.
|Sharon Shore says a recent Ontario Superior Court of Justice ruling shows a judge’s ‘frustration with the current system and a problem that we know exists as far as access to justice.’|
In the case, a 32-year-old woman, Noora Abdulaali, alleged she had been assaulted by her former husband, and harassed after leaving him.
The 43-year-old man, Kadhim Salih, said he feared his former wife would fabricate allegations against him.
The couple had no shared property and no children, noted Pazaratz.
“The next time anyone at Legal Aid Ontario tells you they’re short of money, don’t believe it. It can’t possibly be true. Not if they’re funding cases like this,” Pazaratz said the ruling.
Abdulaali was represented by duty counsel paid by Legal Aid Ontario, while Salih was represented with his own lawyer, paid for by Legal Aid Ontario.
Pazaratz was critical of the case for multiple reasons, and said it was “hardly worth a written endorsement.” However, as Pazaratz explained in the ruling, it blossomed into an ongoing battle after Abdulaali pursued a restraining order against Salih.
The two, who now live in separate cities, were unable to agree on a court order that they would stay away from each other — even if binding on both of them.
“Many taxpayers can’t afford their own lawyers, and don’t qualify for free assistance through Legal Aid. So they end up representing themselves in court. Or facing financial reality and settling without going to court,” he says, in the ruling.
“But when you pay no taxes and Legal Aid gives you a free lawyer, there’s no incentive to be sensible. Why worry about the cost when some unsuspecting taxpayer out there is footing the bill?
Ultimately, Pazaratz suggested the parties and counsel involved have a discussion to see if they could reach a “sensible resolution” — and if not, that he “would formally request that the Area Director of Legal Aid Ontario attend. . .to justify the obscene expenditure of tax money on a simple case with such an obvious solution.”
“I made a fuss. I told them to stop wasting money. So they settled,” said Pazaratz.
“But why do we have a system in which so much tax money gets wasted, unless someone takes the time to make a fuss?”
For its part, Legal Aid Ontario said in an email statement it could not go into the details of the case.
“Legal Aid Ontario offers support to all kinds of vulnerable people,” said spokesman Graeme Burk.
“The privacy rules governing our actions means we cannot comment on the specifics of this case. However, our role has been, and continues to be, helping our clients access justice and navigate the legal system.”
Sharon Shore, partner at Epstein Cole LLP and chair of the Ontario Bar Association’s Family Law Section, says “what we’re hearing is [Pazaratz’s] frustration with the current system and a problem that we know exists as far as access to justice.”
“He’s placing the blame on Legal Aid Ontario, but I don’t know that it’s really limited to that issue,” she says. “. . .There is an ongoing problem that a lot of judges and certainly the bar have been working on, as far as what do you do with the self-represented individuals, what do you do with the court system that is lacking in resources.”
Shore says Pazaratz “didn’t need to write” the decision, as it was a consent order.
“He was clearly frustrated and sending a message. It makes you stand up, it makes you listen to it, but I’m not sure that it’s fair to place it entirely on Legal Aid,” she says.
“I think it’s a frustration with the system.”
Jonathan Richardson, with Augustine Bater Binks LLP in Ottawa, said the ruling is “one of the bluntest decisions I have ever read.”
“It shows the difficulties present in the legal aid system and the balancing act legal aid lawyers have to maintain,” he says. However, he adds, “it is fair to point out that the presence of legal aid has not made this particular dispute any worse.”
“Given the circumstances described, it is likely the same steps would have been taken and the same court costs incurred if both parties were self-represented. . .what the case does speak to is the need for early intervention and triage in family law cases so that cases such as these can be worked out of the system at an early stage and without the need to use up court resources which could be better focused elsewhere,” he says.
A recent report by the University of Toronto’s International Human Rights Program says Canada’s failure to find other ways to detain children violates its international legal obligations.
“Canada’s immigration detention regime needs a drastic overhaul,” says Andrew Brouwer, senior counsel of refugee law at Legal Aid Ontario.
“We need to see a pivot away from the current over-reliance on detention of noncitizens. Immigration detention should be a last resort, should never extend more than 90 days and should never be in correctional facilities, as happens far too often at the moment.”
Currently, Canada houses detained children in immigration detention facilities or separates them from their detained parents, the report says.
According to a press release, over the last few years, Canada has held hundreds of children in immigration detention, including those coming from war-torn regions such as Syria.
“According to figures obtained by the IHRP through access to information requests, an average of 242 children were detained each year between 2010 and 2014. These figures are an underestimate because they do not account for all children living with their parents in detention as ‘guests,’ who were not subject to formal detention orders,” states the release.
Mario Bellissimo, of the Bellissimo Law Group, says immigration detention of children in Canada in these circumstances should not even be an option given the “profound impact on children, the alternatives and our role internationally to be a leader in the protection of fundamental human rights.”
“This report is a significant, robust and timely contribution to the advancement of immigration law and policy,” he adds.
Brouwer says children and other vulnerable persons, such as the mentally ill, should never be detained for immigration purposes. The practice of separating families for immigration detention purposes should be a last resort in the “most extreme situations” and even then only for short periods of time, he says. Alternatives to detention must be implemented, he adds.
Despite signing and ratifying the 1990 Convention on the Rights of the Child, the report alleges Canada has not “adequately incorporated” the best interests of children into the Immigration and Refugee Protections Act.
The report notes the Supreme Court of Canada has ruled on the CRC’s application in Canada a few times. In Baker v. Canada (Minister of Citizenship and Immigration), a landmark decision, the court said “the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review,” and more recently, in De Guzman v. Canada (Minister of Citizenship and Immigration), the court stated “a legally binding international human rights instrument to which Canada is signatory is determinative of how IRPA must be interpreted and applied, in the absence of a contrary legislative intention.”
Brouwer agrees Canada’s immigration detention practices are below international standards, calling them disturbing. He points out they have been the subject of “repeated criticism by UN bodies.”
“Housing or detaining children in detention facilities is always contrary to their best interests, and is inconsistent with our obligations under international law, not to mention our shared values as Canadians,” Brouwer says. “But the report shows that jailing their parents — who have committed no crime — and separating them from their children is equally harmful.”
Some of the children held in detention centres or separated from their detained parents were born here and have Canadian citizenship, which Brouwer says, “in some ways is the most shocking part of the story.”
The 70-page report explores what it calls the “deficient legal underpinnings and detrimental practical implications” of Canadian immigration detention for children.
It also makes 11 recommendations that would bring Canada in line with its international human rights obligations, including suggesting alternative models to detention and family separation.
Children and families with children should be accommodated in less harmful ways, says the report, suggesting more “community-based” alternatives such as giving the families reporting obligations, having them make a financial deposit, requiring a guarantor or even electronic monitoring.
The report calls for policy and legislative reforms, referring to recommendations made in another IHRP report from 2015.
After years of resistance, Legal Aid Ontario has agreed to come to the bargaining table to negotiate with its staff lawyers’ chosen union, the Society of Energy Professionals.
|LAO lawyers demonstrate outside a Liberal party fundraiser on July 13 in downtown Toronto. Legal aid has now agreed to negotiate with staff lawyers’ chosen union. (Photo: Alex Robinson, Law Times)|
Legal aid lawyers, who mounted an intense campaign on the LAO and the Ontario government in recent months, are calling this move a “significant breakthrough.” In the days ahead, the lawyers say the union and LAO will enter into negotiations they hope will end in the recognition of the Society of Energy Professionals as their bargaining agent.
“It’s a huge step,” says legal aid lawyer Dana Fisher. “It’s a step that they’ve refused to take until now.”
Legal Aid Ontario says it has agreed to meet with union reps to find out what its employees are looking for.
“At this point, we have agreed to meet with representatives of the Society of Energy Professionals to discuss arranging a vote to determine LAO’s staff lawyers’ wishes with regard to representation,” said Graeme Burk, spokesman for LAO. “We are taking this step because LAO wants to know conclusively what our staff lawyers want with respect to representation.”
Although her colleagues’ efforts are “finally paying off,” Fisher is careful not to declare victory just yet. “Saying that they’ll speak to us is a great first step and we’re really excited about it, but it’s certainly not the end of the road until we have something in writing,” she says.
Unlike most other workers, lawyers are not included in the Ontario Labour Relations Act. In order to unionize, they must obtain voluntary recognition from their employer. In 2013, LAO rejected its lawyers’ bid to unionize, saying it does not have a legal obligation to voluntarily recognize a trade union to represent its staff.
Later, LAO said it respects employees’ right to associate and is willing to consider associations other than the union the employees want to join. Legal aid expressed concerns about the fact that the Society of Energy Professionals is a trade union. But the lawyers were adamant, saying they’ve chosen the union because it is an “experienced and well-resourced association/union to mount an effective campaign.”
Since then, legal aid lawyers continued to pressure legal aid and the Ontario government, including the launch of a Charter challenge against them. They ratcheted up their efforts this summer, staging several demonstrations outside Liberal party fundraiser events and Premier Kathleen Wynne’s constituency office.
“I have never seen a group of workers as determined and dogged in their pursuit of collective bargaining rights as these Legal Aid lawyers,” said union president Scott Travers in a press release. “I am confident this breakthrough would not have been possible without the pressure Legal Aid lawyers and the Society exerted on the Wynne government and Legal Aid Ontario with the help of allies like the Ontario Federation of Labour.”
“Though we will move toward a normal, respectful bargaining relationship with Legal Aid Ontario, we will continue this public campaign until an agreement to recognize these lawyers' collective bargaining rights is final," Travers also said.
An Ontario Superior Court judge has ordered a stay of criminal charges against an alleged drug supplier until he gets a government-funded defence lawyer.
|'It should be obvious . . . the income thresholds being used by Legal Aid Ontario do not bear any reasonable relationship to what constitutes poverty in this country,' wrote Justice Ian Nordheimer.|
A single income individual in Ontario would have to make $12,000 or less in order to qualify for legal aid, according to the ruling in R. v. Moodie.
“It should be obvious to any outside observer that the income thresholds being used by Legal Aid Ontario do not bear any reasonable relationship to what constitutes poverty in this country,” wrote Nordheimer.
“As just one comparator, in a report issued last year, Statistics Canada calculated the low income cut-off, before tax, for a single person living in a metropolitan area (more than 500,000 people) for 2014 at $24,328, or more than twice the figure that Legal Aid Ontario uses,” he noted. “The low income cut-off is the level of income below which persons are paying a disproportionate amount of their income for basic necessities (food, shelter and clothing).”
The Crown had argued the applicant failed to take adequate steps to come up with enough funds to pay defence counsel, suggesting he could have asked for a bank loan, got a second job, or asked a family member to co-sign for a loan. Nordheimer said none of these suggestions are realistic.
“No financial institution is going to loan the applicant money given his income level, his lack of exigible assets, and his outstanding credit card debt,” said the judge. “The applicant’s father has made it clear that he is not going to assist his son in any way. Unfortunately, the applicant’s mother is no better situated financially, than is the applicant, in terms of co-signing for a loan.”
Partly because the applicant’s bail conditions impose a curfew, he was also unable to find a second job, the judge said.
Rowbotham applications have become more common in recent years, according to criminal lawyer Sean Robichaud.
“In the past five years, I’ve seen Rowbotham applications skyrocket and the reason for that, it seems, just as the justice pointed out, is [that] the threshold and criteria that are being used by legal are entirely out of touch with the standards of poverty and need for people seeking legal assistance who can’t afford it,” Robichaud says.
But part of what’s driving Rowbotham applications is also LAO’s reluctance to grant change of solicitor requests when an accused no longer wishes to be represented by their legal aid lawyer, says Robichaud. That leaves individuals who can no longer continue their relationship with their current counsel without a lawyer.
“The change of solicitor application is a different procedure altogether that has nothing to do with poverty, therefore it’s a way for [LAO] to claw back on certificates without violating their own internal polices that have been set by the government,” says Robichaud.
He says these kinds of administrative difficulties add to defence counsel’s hesitation to take on legal aid certificates.
For its part, Legal Aid Ontario says it has to make do with its fixed funding from the province.
“As with all legal aid plans, Legal Aid Ontario operates within a fixed budget so must be responsible in how the public money it receives from the Ontario government is spent,” says spokesman Feroneh Neil.
“The demand for legal aid assistance for low-income Ontarians is high. While the province has recognized this by raising the legal aid financial eligibility thresholds, Legal Aid Ontario has a yearly budget it must adhere to and must prioritize, in accordance with its legislation, the cases it is able to fund.”
Syrian refugee claimants who apply for refugee protection division coverage will be issued a 10-hour expedite legal aid certificate under a new pilot project from Legal Aid Ontario.
The expedite certificate covers the preparation and filing of the basis of claim and other documents such as submissions under the Immigration and Refugee Board of Canada’s expedited process established for Syrian refugee claimants. Last month, the board announced it would begin to expedite Syrian refugee claims. The process applies to Syrians who are in Canada and making a claim on Canadian soil.
A regular refugee claim would receive seven hours of coverage from legal aid to do the initial basis of claim form and then another nine hours for the hearing stage. While immigration lawyers say that’s never enough time to handle a claim, the provision for Syrian refugees under the expedited process is welcome.
“Generally, I think 16 hours for a refugee claim is very low. I’ve never been able to do a claim in 16 hours,” says Jacqueline Bonisteel, an immigration lawyer with Perley-Robertson Hill & McDougall LLP.
“That said, the hours make sense because you’re still doing the basis of claim plus an additional three hours to put the documentation together and there is no hearing preparation required. In general, it would be great to have more hours from legal aid for refugee claims, but this standard makes sense.”
However, Bonisteel says the LAO web site indicates claimants may not find out whether they’re approved for the expedited process until very close to the hearing date.
“When you submit your paperwork, you will be asking for the expedited process, but by the time you get an answer from the Immigration and Refugee Board, your hearing could be getting close and if you don’t have the assurance, you will want to be preparing your client for a hearing just in case,” she says.
If a client does require a hearing, Bonisteel says LAO has said it will grant an additional six hours to prepare.
“This all happens so fast that in general, it can be very difficult to get the answers you need from legal aid in time and you end up doing work without the assurance of having the hours,” she says. “I do see that there may be an issue there.”
Bonisteel applauds the board for bringing in the expedited process for Syrian refugees and suggests it should be extended to claimants from other countries.
“It’s hard to argue it’s not a good thing. I think there are other countries where it should be introduced — for Iraq and Afghanistan, perhaps,” she says. “I’ve often had to go from Ottawa to Montreal for a hearing, and the whole thing is over in half an hour because the case was so clear. I think it makes a lot of administrative sense to not have the claimant have to go through [the hearing] process. If this works well, it would be great if the IRB would consider other countries where it is quite clear a claim is genuine.”
With hundreds of poor or unwell people already being turned away for Legal Aid funding in Alberta, the problem is about to get more dire as the stop-gap Missing Advocate Project will be terminated on Nov. 1.
|'The problem is that access to justice has to be seen as a human right like health care or water,' says Anthony Moustacalis.|
They are calling on the ministries of Justice and the Attorney General and the province’s recently elected NDP government for better funding.
“Unfortunately, the effect on access to justice and the efficient administration of our court system will be obvious and immediate,” the Oct. 1 release states. “The demand for legal services for poor and handicapped people in Alberta has increased dramatically over the past decade. Legal Aid Alberta has now been starved to the point where the working poor are routinely turned away as ineligible.”
“The Province of Ontario has at least recognized the historical underfunding [of legal aid] so we’re faring better here; it’s commendable, but long overdue and unfortunately it’s trying to remedy a situation that’s 25 years old,” says CLA president and Toronto-based defence lawyer Anthony Moustacalis. “It’s a country-wide problem and it’s acute.”
Because of the economic downturn and funding struggles for legal aid in Alberta, the Missing Advocate Project was created a little more than a year ago by the legal associations to ensure people had proper representation and advice within reasonable time. In that time, the project has served about 900 clients.
“The many lawyers involved in providing this service to the public have done so without remuneration and often at considerable expense to themselves and, at times, their families,” the release states. “Having provided this service to prop up an unsupported legal aid system for the past 12 months, our membership has determined that it is no longer able, or willing, to continue doing so.”
In a 2014 interview with the Calgary Herald about the province’s legal aid funding crisis, CDLA president Ian Savage explained provincial funding has not changed since 2011 at approximately $58.8 million annually. The Alberta Law Foundation also provides some annual funding, but that dropped from $14.9 million in 2009 to just a little more than $1 million in 2011.
The foundation signed an agreement to provide a minimum of $5.5 million in 2012, but that agreement comes to a close in 2016, leaving some uncertainty, said Savage.
“The problem is that access to justice has to be seen as a human right like health care or water,” Moustacalis says. “This is a pressing human rights issue.”
Every student legal aid clinic in Ontario is about to get a $100,000 annual funding boost.
|Windsor's Marion Overholt says her clinic will use the funds to expand coverage in the areas of small claims, consumer issues, and wrongful dismissal claims.|
One of them is the Queen’s Legal Aid Clinic in Kingston, Ont. It facilitates learning for 90 law students with 50 more working for the specialized clinics under its umbrella.
“We are very pleased for Queen’s Legal Aid to have these funds. Law students take pride in providing high-quality legal services and it’s going to our community, which could not otherwise access the rates,” says Jana Mills, acting senior review counsel at Queen’s Legal Aid.
“We are going to expand our current areas of service to include applications to the Human Rights Tribunal of Ontario and expand representation in employment law cases.”
They also expect to expand all services. Public legal education outreach and initiative will help residents of Kingston “avoid unnecessary and expensive legal interventions,” says Mills. Additionally, new case workers will also be trained and a third review counsel will be hired.
The money will help provide technology and enhance the legal learning process for law students and clients, says Mills. Interviewing via Skype and a new database should streamline legal work she explains.
“It gives the students an opportunity to help... a vulnerable population [while] at the same time receiving hands-on experience,” she says.
Community legal services at the University of Windsor plans to expand the number of review counsel “who will be able to work exclusively in the area of small claims, looking at consumer data issues and wrongful dismissal claims,” says Marion Overholt, executive director of Legal Assistance of Windsor, Community Legal Aid.
Windsor and Essex County have one of the highest unemployment rates, she explains.
“As a result we have seen a rise in situations of precarious employment, so being able to offer workers who lose their job an opportunity to consult with us and determine if they have a claim in terms of wrongful dismissal, that will be beneficial to the community,” says Overholt.
Furthermore, the money will benefit the more vulnerable population, which often becomes tied in contracts detrimental to their interest. Due to the area’s high unemployment rates, pay-day loans and similar schemes are especially rampant in the community, explains Overholt
“This additional money is allowing the review counsel to look at consumer debt situations. [We] will be doing a number of public education workshops advising consumers, particularly seniors [and] newcomers, what their rights are under consumer-protection legislation,” she says “We are really excited that we will be able to broaden our services to the low income community.”
About 90 volunteer law students stand to reap the benefits of working on the extra caseload.
Margaret Capes, counsel at Community Legal Services with Western University in London, Ont., says legal aid revolves around three core areas of law at her clinic, including civil, housing, and criminal.
“We are using this money to increase our overall number of clients we can take in all of those areas, in particular criminal law,” says Capes.
Additionally the clinic is able to hire an articling student this year to help with the additional workload in the criminal law area, as well as a part-time lawyer to assist the full-time criminal lawyer she notes.
“The law students will be able to have a variety of different files to work on while they are with us,” says Capes “the more files we are able to open, the more broad range of types of cases that they can be potentially exposed to.”
The funds may also be used to provide additional administrative assistance to the family law lawyer she adds.
The Community Legal Clinic at the University of Ottawa plans to enhance services in the landlord and tenants agreements.
“It’s the area of law where we have the most demand for services, so often we were not able to provide full representation, we were only in a position to offer summary advice,” says Louise Toone, executive director of the clinic.
While the self-help type of service was useful to some, full representation is certainly an improvement.
“A lot of our clients are either recent immigrants, they don’t speak French or English very well or they have mental health problems, so the kinds of clients who really need representation,” Toone.
Besides legal advice and potential for legal representations the clinic also focuses on educating the vulnerable community members.
“We do a lot of community education,” says Toone. Approximately 100 presentations per year are hosted by the clinic in collaboration with various partners. “We do sessions on legal rights on different topics like discrimination at work or housing.”
Approximately 60 law students enrolled at Ottawa’s Faculty of Law will have a chance to help with the cases during the school year.
|Virtually all the changes come into effect today and those that don't will be retroactive, says LAO's Thomas Nye.|
“Virtually all of them come into effect immediately,” he says of the changes, noting the only exception involves the changes with respect to bail matters.
“However, they will be retroactive to June 8,” he adds.
With the Ontario government pumping more than $96 million into LAO over three years, the agency is moving ahead with an expansion of certificate coverage to provide assistance in a greater range of areas. This is in addition to the series of increases to the income eligibility threshold that started taking effect last year.
In criminal law, for example, LAO will now issue certificates based on criteria besides the loss-of-liberty test that considers an applicant’s likelihood of going to jail. Under the changes, certificates will be available to those meeting the income eligibility criteria who are facing secondary consequences of a criminal conviction such as a risk of deportation; immediate loss of public housing; or a significant impact on access to family and child custody.
In addition, LAO will expand coverage for those meeting the income criteria with no prior criminal record in situations where the Crown is seeking a conviction or discharge and the defendant is First Nation, Métis, or Inuit; has a mental illness; or is a victim of domestic violence charged with an offence related to a partner.
When it comes to bail, the changes include providing for enhanced certificates for reviews that will expand the number of hours lawyers have to challenge bail orders and improper conditions imposed on those released.
In the area of family law, the changes will expand coverage for complex cases. According to Thomas, they refine the definition of complexity to deem certain matters, such as those dealing with applications under the Hague Convention on the Civil Aspects of International Child Abduction, to be “presumptively complex.”
As well, they’ll include provisions for what Thomas calls “client complexity criteria” to define complexity on the basis of client characteristics such as literacy issues or language barriers.
Additional changes will provide for certificates in mental-health proceedings to assist those meeting the income eligibility criteria who wish to bring guardianship applications before the Consent and Capacity Board or the Superior Court.
In addition, the changes provide for expanded coverage in refugee matters and domestic violence cases. They’ll also provide for targeted services for aboriginal clients and expand LAO’s public-interest criteria for test cases that address systemic issues affecting the poor.
“The old test-case criteria were pretty narrow,” says Thomas, noting it will now be possible to provide a certificate in a test case with significant implications for the poor even if the representative client doesn’t meet the financial eligibility criteria.
“We are growing the program to match the funding,” says Thomas, adding there may be further changes as the funding continues to grow — including another $67 million announced by the province in its spring budget for 2017-18 — and LAO assesses the impact of the expanded services so far.
|Source: Legal Aid Ontario|
The lawyer in question was providing duty counsel services through the Sykes Corp., which has a contract with legal aid to assist clients via the Brydges hotline, according to LAO.
“Legal aid is going to investigate because we do have a contract with them and we want to make sure that there’s consistent and high-quality legal services available across the different platforms, whether it’s duty counsel, staff lawyers paid by legal aid, or whoever we contract to do the work,” Oger says.
Duty counsel Artis Tiltins was the only duty counsel available in Ontario on the night Edita Hajovska was arrested for impaired driving. Hajovska, who spoke with Tiltins on the phone from a hospital, testified the lawyer didn’t let her ask questions and told her to “shut up.”
Police also testified the lawyer was rude and impatient when told to stay on the phone for a few minutes while Hajovska was seeing a doctor before speaking to her the second time. An officer told the court he had dealt with Tiltins before and found him to be rude. On the night in question, the officer said he threatened the lawyer with a complaint to the Law Society of Upper Canada when he insisted he couldn’t stay on the phone.
“I appreciate that it was busy that night, and that Mr. Tiltins was the only duty counsel on duty for the entire province. However, this was not some drive-through business, and Mr. Tiltins was not a minimum wage employee who had little ability to use his discretion or exercise his own judgment about the service he was providing,” wrote Provincial Court Justice Leslie Pringle in R. v. Hajovska.
“In fact, Mr. Tiltins was providing an important legal service to a person whose liberty and security of the person were in jeopardy; he was a fully qualified lawyer and a professional providing legal advice to a person arrested for a criminal offence.
“As such, he could easily have exercised his discretion to wait an additional few minutes for Ms. Hajovska to receive medical treatment, and he could certainly have used better judgment than to raise his voice to the police officer and his client over the telephone.”
Tiltins did not respond to a voicemail request for comment. But according to the ruling, he denied he was rude to Hajovska. He said his vocal demeanour was “very fine,” and that it was in fact Hajovska who was being difficult with him.
After Hajovska’s frustrated call with Tiltins, the police carried on with breath tests. The judge found that was a violation of her right under s. 10(b) of the Charter, as she had not had a reasonable opportunity to speak to counsel.
“Looking at the situation in this case from a broad perspective, I find it is significant that even the police were shocked by the disregard with which Ms. Hajovska was treated by duty counsel,” Pringle said.
“Considering that the end result was that her right to counsel was entirely thwarted, I am satisfied that the administration of justice would be brought into disrepute by admitting the breath samples. In other words, I find the repute of the system as a whole would suffer by admitting the evidence.”
With the breath test results excluded, the judge found there was no proof Hajovska was driving while intoxicated.
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