VIP Access to Justice: Why state-funded counsel is crucial to our democratic identity - LawNow Magazine

VIP Access to Justice: Why state-funded counsel is crucial to our democratic identity

criminal law

Access to justice is always a live issue, no matter how developed a country may be. Luckily, in Canada, our justice system rivals some of the best in the world. However, there is still concern for those who represent themselves in the criminal justice system. After all, criminal matters have a unique way of affecting one’s life with grave consequences if convicted: jail sentences, loss of employment, social stigmas or an inability to travel, just to name a few.

It comes as no surprise that, when up against the power of the state (Crown attorneys, police forces, expert witnesses), an accused person’s best chance at ensuring a fair trial, resolution agreement, or sentence happens with competent counsel on their side. However, even with the most generous of discounts, retaining counsel can be an impossible financial burden to bear for many people. And so, the concept behind state-funded legal representation is born.

… the reality is that, when a person is self-represented, the result is often more litigation, more court matters and more appeals. This in turn costs tax-payers more money. But there’s a catch: one has to qualify for state-funded legal representation before one can get it. While that may appear sound in theory – not everyone should qualify for legal aid – the practical reality is that the cut-off for qualifying for legal aid can be frighteningly low.

Legal Aid Ontario boasts two main qualifications for a person to obtain state-funded counsel:

  1. the Crown attorney needs to be seeking a jail sentence; and
  2. the combined income of the person and their family members must be below a set threshold.

If a single person with no spouse or children makes more than $17,731 gross per year, they will not qualify for legal aid for a non-domestic abuse matter. If a person lives with someone, their combined salaries must be below $31,917 in order for the person to qualify for legal aid.

It is not hard to imagine the obvious gap created here: thousands of people who have a low annual income must either hire a lawyer they cannot afford, or they are forced to represent themselves. What’s even more troublesome is that the Ontario government announced a $164 million dollar cut in Legal Aid Ontario’s budget earlier this year. The result is that Legal Aid Ontario must reduce the number of certificates for state-funded counsel as well as funding for transcripts of proceedings, expert witnesses, or psychological testing.

The problems that can arise with a self-represented accused were clearly at issue and highlighted in the case of R v Sabir. A trial judge has a heavy duty to protect the rights of a self-represented accused. The Ontario Court of Appeal held that the trial judge did not do so in this case. Specifically, at issue in this case were the following grounds:

(1) the trial judge failed to conduct a voluntariness voir dire in relation to the statements made by the appellant to Sgt. Gilmore following his arrest; (2) the judge failed to inquire into potential Charter breaches; and (3) the judge misinformed the appellant concerning his right to testify. (At para 18.)

On the voluntariness of the accused’s statements, the Ontario Court of Appeal held:

In the circumstances of this case, the record does not suggest that the appellant understood the purpose and consequences of a voluntariness voir dire, and made an informed decision to waive his right to a voir dire. Nor can it be said that, had the trial judge raised the issue of voluntariness with the appellant, the appellant would have proceeded in the same manner. (At para 26.)

Without a sound justice system, our sense of social justice and democracy is threatened, and our constitutional rights are challenged and infringed.The Ontario Court of Appeal also held that the trial judge failed to inquire or turn her mind to the potential section 8 and 10 breaches of the Canadian Charter of Rights and Freedoms. The trial judge did not invite submissions on or enter into an inquiry of these issues. The Court held that the self-represented accused was not properly advised or informed of his legal rights. As a result, the Court ordered a new trial on almost all of the charges against the accused and reduced the accused’s custodial sentence from 18 months to 6.

It is unclear from this ruling whether or not Mr. Sabir qualified for legal aid. However, the reality is that, when a person is self-represented, the result is often more litigation, more court matters and more appeals. This in turn costs tax-payers more money. Not to mention, at issue in this case were trial fairness and the accused’s Charter rights, two of the most paramount pillars of our justice system.

Access to justice is an integral part of any well-functioning justice system and Ontario should be no exception. The $146 million dollar budget cut imposed on Legal Aid Ontario affects each and every person involved in the justice system, and leaves our community with an imbalance of power between the people and the state. Without a sound justice system, our sense of social justice and democracy is threatened, and our constitutional rights are challenged and infringed. Access to justice must be made a government priority, as it affects the very foundation of our justice system.

Authors:

Melody Izadi
Melody is a criminal defence lawyer with the firm Caramanna Friedberg LLP, located in Toronto, Ontario.
 


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