Legal Aid Ontario has announced that its certificate program is $10 million over its targeted expenditures, after a mid-year review of its financial situation.
LAO says the problem is partially due to "the additional costs associated with megatrials and large criminal prosecutions and to the very quick account payment timelines that have evolved through the Legal Aid Online billing system."
According to Janet Leiper, chairwoman of LAO, "what we're seeing is, we're really in a new era of increased and complex prosecutions, so we are still analyzing the impact on legal aid, but we know that this is a big part of it."
William Trudell, chairman of the Canadian Council of Criminal Defence Lawyers, says he knows lawyers who are working on megatrials who are being forced to shut down their practices because they are not being paid for all the work they do. As a result, he says, many lawyers won't take legal aid cases anymore.
"I don't know who can afford to take legal aid for big cases," says Trudell, who for 25 years did many legal aid cases but now only rarely takes them. He looks on such cases more as pro bono rather than paying work. "I can afford it because I've been in business a long time."
To try to deal with this financial tight spot, LAO has decided to implement a gradual move to a 14-day payment schedule for certificate accounts as of Oct. 23. The payment schedule will then move to 21 days from Jan. 15, 2007, and to 30 days after March 31.
"Over the coming months, we will slowly move towards a more industry standard of payment within 30 days, for certificate accounts that are billed within tariff maximums and for duty counsel statements submitted electronically," says an LAO statement.
"We will also be enforcing our billing deadlines carefully to make sure that accounts are received in a timely way and are paid within our guidelines," says Leiper.
"We need, and we are taking steps to avoid a deficit situation at the end of our fiscal year. We're trying to take a pro-active approach to manage the finances and we are trying to do this in a way that doesn't affect service to our clients," adds Leiper.
Legal Aid issued 105,662 criminal, family, refugee, and civil certificates in the fiscal year ending in 2005, at an average cost of $1,732 per certificate.
LAO has already met with representatives of the bar to discuss the new measures and Leiper says it will continue to meet with them to discuss any impact this situation may have on their members.
After the federal, provincial, and territorial ministers responsible for justice met earlier this month in Newfoundland, they released a statement stressing that through unanimous resolution they had agreed there was a need for "continued, increased and long-term federal funding for criminal legal aid and new funding for civil legal aid." The ministers also requested a return to a 50-50 provincial/territorial-federal funding formula for legal aid.
Leiper noted that it is a good sign that those involved understand the role that legal aid plays in the overall administration of justice.
"There is a clear recognition that if you're going to bring in new initiatives that impact on prosecution and policing that you also have to make investments in legal aid," she says.
Trudell agrees there's a need for the government to plan how it will pay for all these new initiatives, but he only sees a system that is a complete hodge-podge with no careful planning, leaving those most in need without much recourse.
"It's how we treat those who can't afford what democracy offers that's a measure of this country," he says, noting the feds are full of new legislation about how to combat crime but never mention that the criminal justice system in this country works better than most.
The Ontario Ministry of the Attorney General recently commented that the province is in the process of negotiating with the federal government for new federal funding for civil and family legal aid. Since coming into office, the provincial government says it has increased the base funding of LAO by a total of $25 million, meaning that government contributions will be $269 million in 2006-'07.
However, shortfalls like those at LAO continue.
The Association of Legal Aid Plans of Canada, of which Legal Aid Ontario is a member, also came forward to support the provincial and territorial ministers following the meeting.
The association is calling on the federal government to commit long-term funding to legal aid "in order to avoid stripping away the legal rights of the poor," specifically through long-term funding for the Federal Investment Fund and by providing funding for civil legal aid, particularly for services that are federally mandated or legislated.
It is also looking for an increase in funding to cover the additional demand for legal aid services and costs resulting from the federal government's proposed criminal justice system changes and from increases in federal prosecutions and policing resources.
But so far the Harper government is not coming forward with any cash.
"The problem is there's no commitment from the government to fund the system," says Trudell. "It's the erosion of a wonderful system because politicians won't embrace it."