Questions remain on funding sustainability in legal clinic system

New proposal enshrines independence of clinics but also the damage of existing budget cuts, say lawyers

Questions remain on funding sustainability in legal clinic system
Dana Fisher

Lawyers who work within the legal aid system in Ontario say that Attorney General Doug Downey’s decision not to further cut Legal Aid Ontario’s budget is a welcome step in the right direction. But, questions remain about how a flurry of proposed changes will impact some of the more intricate areas of the system. 

Association of Community Legal Clinics of Ontario director Lenny Abramowicz says he will be meeting with stakeholders over the weekend to review proposed changes to the Legal Aid Services Act, which were suggested amid a flurry of other amendments in the bill 161, announced Dec. 9. 

“We see the government's decision to step back from future cuts as a positive first step, but only a first step,” he says. “And there is still a need for the government and legal aid both to remedy the damages that were created by this year's cuts.” 

Meanwhile, several clinics — which had submitted requests for funding reconsiderations from LAO before the announcement of the bill — are expected to get decisions at the end of the week as well, he says. The proposal in the bill says “Section 36, which provides for a process by which clinics may request reconsideration of funding decisions, is repealed. Under a new section 72.4, any existing reconsiderations are terminated.” There is also language that requires new memorandums of understanding for clinics after the introduction of the bill.

Dana Fisher, Local Vice-President for the LAO Lawyers Local of the Society of United Professionals, says she also has concerns about some of the changes proposed by the attorney general this week. For example, she says, she was surprised to hear Downey say that the current levels of legal aid funding are “sustainable and efficient.” LAO Chair and former Progressive Conservative AG Charles Harnick also noted at a press conference that Downey’s proposals would provide good “value for money.” 

But Fisher, whose union has protested budget cuts that resulted in layoffs of lawyers, estimates that a full-time worker at minimum wage would not be eligible for legal aid, and that the current level of services has created a backlog for proceedings such as bail hearings.

“Judges and all sorts of other stakeholders [have been] talking about the increased delays. Even prior to the cuts, there were substantial increases in the number of self-represented litigants in the justice system which takes more time and resources,” she says. “Skyrocketing increases in incarcerated individuals with mental health issues — all of these things speak to the need for there to be legal representation . . . . and we are seeing that on the ground.” 

The impact of other proposals is less clear, says Fisher. For example, she noted that the bill says that in addition to those selected by the attorney general, “at least three but no more than five” LAO board appointees would be selected from a list by the Law Society of Ontario. The current version of the Legal Aid Services Act provides for a board with five members recommended by the LSO. 

She says it’s also murky as to what level of consultation is required for LAO to submit rule changes under the new bill, which just specifies about posting new rules on the LAO website. The funding model for court-ordered lawyers also seems a bit unclear under the new proposal, she says. 

The new bill notes that LAO “may” provide legal aid services for criminal law, family law, poverty law, child protection law, human rights law, health law, including mental health law, employment law, education law and immigration and refugee law.  The existing LASA, Fisher notes, says LAO “shall” provide services in criminal law, family law, clinic law and mental health law and “may” provide other services in civil law. 

Finally, Fisher pointed out that the “purpose” section of the existing law says that the LASA is “to promote access to justice throughout Ontario for low-income individuals.” The new bill outlines a purpose of “the establishment of a flexible and sustainable legal aid system that provides effective and high-quality legal aid services throughout Ontario in a client-focused and accountable manner while ensuring value for money.” 

To her, she says, it sends a message that the government “threatened absurd costs and in total decimation of systems and then we only slightly destroyed them.”

Still, those that helped announce the bill praised its treatment of legal aid. 

"A careful and open-minded review of the act was long overdue,” said Harnick at the press conference.

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