The most widely read magazine for Canadian lawyers
Issue link: https://digital.canadianlawyermag.com/i/50837
ordan Weisz is the kind of lawyer who has kept Canada's legal aid system afloat for the past two decades. About 80 per cent of the clients who come to his doors each year have a legal aid certificate in hand. Yet they represent less than half of his revenue. As a senior practitioner, he qualifies for Legal Aid Ontario's top tariff rate of $106.90 per hour. But LAO is forced to make do with a fixed amount of funding each year regardless of demand for services. To cover the shortfall, it restricts the number of hours for which lawyers are compensated, regardless of what may be required for a proper defence. Take for example one of Weisz's legal aid clients who goes to trial on a summary conviction matter requiring a Charter of Rights and Freedoms application. LAO will let him bill just 12.5 hours from the time he first meets with that client to the end of the trial. He estimates it would actually take about 20 hours to meet his obligations to such a client. When operational costs are factored in, he collects about $36 per hour. Weisz makes a go of it thanks to a stable of private clients built over 18 years in practice. But all of the free hours he puts in on the legal aid side, while viewed as a professional and ethical responsibility, wears on him — especially when he is doing it instead of spending time with his three young children. "When you're not being paid even a modest amount of money — and indeed you're losing money because you've got to continue covering your overhead — it breeds a huge amount of resentment toward those who are responsible for funding and don't meet their responsibilities." That bitterness underlies what became a flashpoint leading to Ontario criminal lawyers' eight- month boycott of legal aid in 2009. Yet the boycott was just one indication of a fractured system. A steady stream of studies from coast to coast have called for boosts to funding levels and a more innova- tive approach to delivery of legal services to those in need. The Canadian Bar Association got involved by launching a test case in 2005 to establish a constitutional right to a base level of civil legal aid, but it flamed out in the pretrial stage. Pleas for a renewal of the system have largely been ignored, and it remains unclear just how much longer lawyers like Weisz will be willing to prop up the system. ROOTS BACK TO THE SECOND WORLD WAR legislation in 1951 creating the country's first formally structured legal aid program, in partner- ship with the Law Society of Upper Canada. The law society dealt with the day-to-day operations of the system, while the government fronted the cash. However, lawyers were compensated only for administrative costs and expenses. The system was expanded in 1967, when a statutory right to legal aid was established for a loosely defined group of financially eligible clients, and lawyers were permitted to collect counsel fees. Other provinces adopted similar programs throughout the 1960s and 1970s, offering differing lev- L els of coverage. The federal government got on board in 1972 through a cost-sharing system enshrined in the Federal-Provincial Agreement on Legal Aid in Criminal Matters. The deal committed the feds to providing 50 cents per person for legal aid matters in the criminal justice system. The Department of Justice now has contribution agreements with each province and territory for criminal law, immi- gration, and refugee matters. Ottawa first backed civil legal aid through the Canada Assistance Plan, and now does so through the Canada Social Transfer. Through that scheme, provinces decide whether to put the cash toward post-secondary education, social assistance, or social services. That makes it impossible to know just how much of the transfer gets funnelled to legal aid. By most accounts, it seems what began as a proud government initiative to ensure adequate legal representation for the poor has been nudged off course by other priorities. Legal aid funding in Ontario — the province that spends the most on it per capita — fell by nearly 10 per cent from 1996 to 2006. Over the same period, the province raised its health-care spending by 33 per cent and educa- tion expenditures by 20 per cent. The result is palpable: according to LAO's 2006-07 business plan, the number of people refused service had increased by 42 per cent in two years. Ontario isn't the only province struggling to meet its legal aid promise. A drop in federal funding during the 1990s diminished plans across the country. Experts say most legal aid programs never www. C ANADIAN Law ye rmag.com OC T OBER 2010 29 egal aid in Canada has been traced back to the Second World War, when the CBA created a temporary program for soldiers. The scheme helped prompt the Ontario government to enact DARREN BOOTH