How does Ontario legal aid compare?

With legal aid funding cuts sparking a strike by British lawyers, the chairman of the International Legal Aid Group says that country isn’t alone as legal aid systems around the world feel the effects of a tough global economy.

The British lawyers’ strike, the first of its kind in that country, followed a government measure that would see cuts of up to 30 percent to legal fees. Outside the Old Bailey courthouse in London, England, on Jan. 6, protesters decried what they called “savage cuts to funding.”

According to Alan Paterson, chairman of the International Legal Aid Group, England and Wales spend more money on legal aid than most countries but notes increasing legal needs in an era of austerity have meant tighter budgets for access to justice there as well as in other jurisdictions.

“Legal needs tend to grow. We are an increasingly judicialized society and therefore more and more things can be litigated, particularly with our constitutions and the way they’ve evolved,” says Paterson in an interview from Glasgow, Scotland.

“That means the demand for legal aid and services . . . just keeps on growing while the ability of the state, and the willingness of the state, to provide it is not keeping pace with that.”

There are essentially three levers available to rejig the allocation of funds into legal aid, says Paterson: reducing fees to lawyers, tightening the eligibility criteria or restricting the scope of legal aid coverage.

Although no system is ideal, there are some countries that are weathering the era of austerity better than others, according to Paterson.

Comparing legal aid regimes is “far from exact science” due to the differing nature of the systems around the world, he notes, but overall the Netherlands, Scotland, and Northern Ireland fare better than other jurisdictions in terms of the portion of the population that qualifies for legal aid, the scope of the legal issues covered, and how they provide services.

According to the Netherlands’ Legal Aid Board, approximately 40 per cent of the Dutch population would qualify for legal aid“if circumstances so require.”

Legal Aid Ontario says 7.1 per cent of Ontarians are eligible for legal aid services. In Scotland, meanwhile, 70 per cent of the population would qualify for legal aid “in practice,” Paterson says, noting that a portion of those who would be eligible might have to make “significant” contributions following their representation.

Belgium provides what it calls “first-line legal aid” — services limited to information and advice — to every citizen, while a means test applies to representation by legal aid counsel.

“If someone is not entitled to second-line legal aid, he has to pay the lawyer himself or if he is insured, the legal costs can probably be covered by his legal expenses insurance,” according to a Belgian national report prepared for a 2011 conference of the International Legal Aid Group, a global network of legal aid specialists.

One of the problems with the Belgian regime is its lack of co-ordination between legal aid providers, the report notes. That’s an area Ontario can be proud of, Paterson says, noting the real strength of the legal aid structure in this province is its organized clinic system.

Osgoode Hall Law School professor Frederick Zemans was the founding director of the first community-based legal clinic in Ontario, Parkdale Community Legal Services.

To him, the clinic system — and particularly the specialty clinics advocating for aboriginals, the elderly, and people with mental illness or disabilities — “is one of our really special features.”

“There are now over 70 clinics across Ontario,” says Zemans.

“It’s important to underline that many of the clinics, including Parkdale, they are both serving the community and [are] community run,” he adds.

The role of paralegals in the legal aid structure in Ontario is another important aspect, according to Zemans.

Although Canada, like Australia, has a legal aid structure that includes “good elements” — such as the delivery of services through both private and public sector lawyers — its system falls short due to lack of funding, says Paterson.

“There are good elements in Canada and some parts of Australia were we to ignore that their systems tend to be underfunded.

“Therefore, the spending per capita is on the low side. In other words, the scheme looks great, but there isn’t the resources to provide nearly as much assistance as needed.”

In terms of per-capita spending on legal aid, Northern Ireland tops all countries, according to Paterson. The country’s projected budget for legal aid for 2013-14 was around 116 million pounds (about $208 million) for a population of 1.8 million people.

Interestingly, in Hong Kong, “there is no pre-determined funding cap and supplementary funding can be sought in the event expenses exceed the original estimate,” according to a legal aid report on that jurisdiction available on the International Legal Aid Group’s web site.

“Subject to the monitoring and approval of the [legal aid department] on the ground of reasonableness, there is no limit on the expenditure for any particular legally aided case which may involve solicitors, barristers, mediators, and both local and overseas experts,” the report notes.

According to the report on Australia, funding for legal assistance services over the next four years will be $1.4 billion. Comparatively, Canada spent $776 million on legal aid in 2012. Ontario accounted for $371 million of that amount.

But when it comes to eligibility criteria for legal aid, Ontario is on the low end. In a province with a median family income of $73,290, the cutoff for a legal aid certificate is $10,800 for a single-person household and $18,684 for a family of two people. In Nunavut, anyone making less than $50,000 annually may qualify for legal aid.

Another benchmark used to assess the quality of a legal aid system is the scope of services covered by the scheme. Most legal aid systems provide at least some criminal law services while putting a lower priority on civil and family law cases.

According to Paterson, England and Wales have mostly eliminated family law from legal aid coverage. While LAO provides some family law services, those who don’t qualify for legal aid and can’t afford to hire legal counsel make up about 70 per cent of family law litigants.

When it comes to criminal matters, the United Nations Guidelines and Principles on Access to Legal Aid in Criminal Justice Systems adopted in December 2012 suggest “people charged with a criminal offence punishable by a term of imprisonment or the death penalty are entitled to legal aid at all stages of the criminal justice process.” The guidelines also encourage states to provide legal aid regardless of the person’s means if the case is particularly urgent or complex or if the potential penalty is very severe.

But it’s unlikely there’s any country with a legal aid system fully aligned with the UN principles, says Paterson. “The world’s economy is not in great shape and you cannot keep on spending public money in every area,” he says.

In Britain, barristers say the cuts will drive lawyers away from legal aid. According to a recent Reuters report, senior barrister Mukul Chawla said that if the government cuts continue, “the guilty will go unpunished and the innocent will be wrongly convicted.”

The recent British funding cuts follow a 10-per-cent reduction in legal aid fees for both civil and criminal cases in April 2012. An England and Wales national report prepared for the 2013 conference of the International Legal Aid Group lamented an impending “austerity justice.”

“At an early stage, the government took the decision that they would create a reduced civil legal aid system intended only to meet international human rights legal obligations.

“For this reason, the scope of criminal legal aid remained intact with the bulk of the cuts falling on areas of law in the civil legal aid scheme which are less likely to directly engage human rights principles,” the report notes.

“Overall the assessment of the U.K. government’s changes to legal aid can be nothing more than bleak.”

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