July 26, 2008 Toronto Star
Joseph Hall
Tracey Tyler
Staff Reporters
The middle class should have access to Ontario's legal aid program and lawyers who work in the system should be paid considerably more.
Those are two of seven key recommendations released yesterday in a sweeping report into the province's government-funded legal aid program, established more than 40 years ago with the promise of ensuring justice for all, yet now struggling to serve even the poor.
While legal aid was introduced with the neediest citizens in mind, access to justice for the broader middle class has become a serious problem, with one high-profile judge after another, including Ontario Chief Justice Warren Winkler, calling it the most pressing issue facing the justice system.
A simple three-day civil trial costs about $60,000, more than a year's salary for many families, who can't afford to pay for a lawyer but would still be considered too well-off for legal aid.
"The financial eligibility criteria are so restrictive that it is only the very poor that qualify for most forms of legal aid," said Michael Trebilcock, a University of Toronto law professor who wrote the report for Ontario's attorney general.
Eligibility criteria must be "significantly raised to a more realistic level" and, perhaps in some cases, scrapped altogether, he argued.
"Some range of legal aid services should be provided to all Ontario citizens on a non-means tested basis . . . so that middle-class Ontarians develop a material stake in the well-being of the legal aid system."
In addition to opening the system so the middle class could, at minimum, have access to basic legal advice, information and assistance could also be offered through alternatives such as telephone hotlines, the report proposes.
Trebilcock also suggested a sliding eligibility scale so people who might not qualify for legal aid would have at least a portion of their legal expenses covered.
While Ontario's legal aid system is the richest in the country, with a budget greater than $300 million, demand for legal services has grown across Canada.
Divorce, custody wars and battles over child support were relatively rare 40 years ago, but common today. People with family law problems are among those Legal Aid Ontario has been turning away in record numbers. A single person earning just $16,600 a year after taxes may not qualify.
Attorney General Chris Bentley welcomed Trebilcock's report, saying it contained "great ideas" on improving the system, but would not sign on to the idea of giving the middle class access to the system.
"Michael has provided us with some enormously helpful advice ... on improving access to all Ontarians to their justice system," Bentley said. "In the financial elements of legal aid, I absolutely want us to get to a better place, but it's not going to happen overnight."
Bentley said that, for example, making going to court cheaper, rather than increasing legal aid, might improve access to the legal system, especially on the civil side.
Meanwhile, lawyers, who get paid between $73 and $92 an hour for legal aid cases, have seen their remuneration shrink in real terms, with the public the ultimate loser because fewer lawyers are willing to take on the work, Trebilcock said.
"There is 16 per cent fewer lawyers participating in the scheme overall today compared to 10 years ago and 29 per cent fewer family lawyers. So lawyers are just fleeing the scheme," he said.
His report calls on the province to raise the legal aid tariff and also implement pay raises for staff lawyers employed by government legal clinics, as well as duty counsel in criminal and family courts, who are employees of Legal Aid Ontario.
Trebilcock suggested that anything less than $110 an hour seriously risks destroying the private bar's commitment to serving legal aid clients.
At the same time, Trebilcock acknowledges the hourly rate he's proposed as a starting point will be "a bitter pill for the legal aid bar to swallow," given that it falls "far below" rates recommended in a report seven years ago, which would translate to between $120 and $160 an hour in today's terms.
Those rates are just "not fiscally or politically feasible" – even if justifiable in a "first-best world," Trebilcock said.
Frank Addario, president of the Criminal Lawyers' Association, said the report doesn't offer any viable means of bringing lawyers back to the system.
"The report acknowledges that that desired outcome is to attract lawyers who fled the field back into the plan, but then fails to recommend the funding that's required to meet that outcome," Addario said.
Meanwhile, Ontario Bar Association president Greg Goulin said the province should look to a pay scale system adopted by legal aid in Nova Scotia. There, legal aid lawyers are paid on the same scale as prosecuting Crown attorneys, he said.
"The wage scale is the same for senior defence council who are employed by Legal Aid Nova Scotia as it is for senior Crowns," he said in an interview.
One of the more intriguing recommendations in the report calls on the province, as well as the Law Society of Upper Canada and Legal Aid Ontario, to look into promoting "private insurance markets for legal expense coverage, especially in family law and civil matters."
While prepaid legal plans are "not a new concept in Canada" – the law society endorsed them in 1993 and some private interests, such as the Canadian Autoworkers, offer them – they haven't hit the mainstream, Trebilcock said.
In an interview earlier this year, Winkler, who devoted a lot of time in the 1960s to trying to develop legal insurance programs, said it's hard to devise an affordable scheme that would provide coverage for anything except minor legal problems.
The plans in existence tend to pay for basic legal advice and assistance with minor things, such as drawing up a contract.