Inside Queen's Park: Legalcare not the cure

The Liberal government report on legal aid by law professor Michael Trebilcock received some media attention for seeking a more widely accessible justice system and upping the incomes of participating lawyers.

But what was really striking about the Trebilcock report - and what was underplayed in media reports - is how it lays out the groundwork for what might be deemed legalcare, the justice system equivalent of medicare.

Trebilcock never uses the word, but it is clearly his unwritten goal in advocating for an expansion of the system so as to seduce the middle class into using legal aid and therefore becoming its big supporter.

As medicare devotees long ago learned, once you corral the middle class into believing they are getting something for nothing from government, they become less resistant to paying the whopping tax increases required to sustain such “free” systems - and more reluctant to constrain them.

In Trebilcock’s words: “Without engaging the [middle-class] more fully as beneficiaries of the system, it is probably unrealistic to expect them to be engaged, at least to a greater extent than at present, as financial underwriters of the system.”

He has nice things to say about the United Kingdom’s Citizens Advice Bureaus, which are part of a legal aid regime that spends $77 per capita compared to $27 per capita in Ontario, although he doesn’t actually recommend them for the province.

But he does suggest taking flexible and multiple approaches to extending legal aid benefits, and mentions among other solutions creating the legal equivalent of the medical system’s Telehealth phone service.
His bottom line is legal assistance should preferably be provided “on a non-means tested” basis.

“I believe all these initiatives. . . should be explored . . . so as to broaden dramatically the range of citizens who are direct beneficiaries of the legal aid system and who, hence, are likely to be willing financial contributors, as taxpayers, to its enhancement,” he wrote.

He therefore calls on the government to “accord a high priority to rendering the legal aid system more salient to middle-class citizens of Ontario (where, after all, most of the taxable capacity of the province resides).”
In a sense, there is nothing new about this ongoing desire to transform lawyers from private entrepreneurs into quasi-state employees like doctors.

The 1987 Zuber report, commissioned by another Liberal government back in 1986, also stressed the need to see the courts as essentially a “social service.”

After all, the principle underlying the justice system is the need to have a universally acceptable means of resolving disputes within society, both disputes between individuals and between the state and individuals. And to serve the public properly the courts need to be understandable, efficient, and accessible.

In Zuber’s eyes, “economic accessibility” was key, yet the courts were increasingly restricted to the rich, who could pay their own way, and the poor, who could access legal aid.

Two decades and two reports later (McCamus in 1996, in addition to Trebilcock’s), nothing has really changed.
Everyone, from chief justices Beverley McLachlin (Canada) and Warren Winkler (Ontario), continues to warn about the middle classes’ financial exclusion from the court system.

Legalcare, however it might be defined, is seen by Trebilcock and many others as the answer.
But the rest of us should be inclined to be skeptical.

Legalcare, if adopted, would produce the same results as medicare: an explosion in use of a “free” service with concurrent costs that couldn’t be sustained, lineups and who-you-know determining who gets service rather than money, and a relentless extension of state power so extreme that in medicine it forbids Ontarians to make their own medical decisions (such as having an MRI).

There is at least one alternative, and to be fair Trebilcock touches on it, although in such convoluted prose it is hard to be sure just what he means.

“A yet further strategy for rendering the legal aid system salient to the middle class in Ontario is as a decentralized system of intelligence about dysfunctions in the broader justice system which, if redressed, will benefit not only legal aid recipients but all citizens of the province that engage with those aspects of the justice system.”

I think he means the causes of escalating legal costs should be found and fixed.
Interestingly, that’s what Attorney General Chris Bentley is pledged to do, in at least a partial way on the criminal court side, by reducing by 30 per cent the days and court appearances required for a case to reach conclusion.

My own personal contribution to reducing costs would be to get Legal Aid Ontario out of the advocacy business, as in its funding of the Income Security Advocacy Centre, which is the job of elected politicians, not lawyers playing court politics.

The middle class has always had a financial problem accessing justice, but better we keep the current system and try the Bentley approach than plunge us down the statist slope of legalcare.

Derek Nelson is a freelance writer who spent 19 years at Queen’s Park. His e-mail is [email protected].

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