Cost of justice a rights issue

Robert Howard
The Hamilton Spectator

(Aug 1, 2008)

Few things can so financially devastate an individual -- or a family -- as unexpected legal costs. Few things can deter someone from exercising their legal rights as the anticipation of the cost.

Hiring a lawyer to defend yourself or a family member against criminal charges can easily cost tens of thousands of dollars. If a trial is involved, fees can hit six figures without a backward glance.

Hiring a lawyer can require a retainer (upfront fee) of $25,000, or much more. And if you lose a lawsuit, you may have to pay the other party's costs -- sometimes doubling the financial liability.

The options are terrible: mortgaging a home for legal fees; taking a plea bargain to avoid trial costs; dropping a lawsuit because of cost, not lack of merit. People have been convicted of crimes -- even of murder -- in Canada for lack of adequate legal representation. Canadians are entitled, even have a right, to a strong and skilled defence.

The cost of representation has cut the middle class off from the legal system, according to a new report for Ontario's attorney-general into the province's legal aid program. It's the most pressing issue facing the justice system, says Ontario Chief Justice Warren Winkler.

Legal aid eligibility must be widened, says the report's author, law professor Michael Trebilcock. Someone earning as little as $16,600 may not qualify for legal aid.

This is not, we hasten to say, about greedy lawyers or exorbitant fees. A law practice today is no guarantee of wealth, and legal aid work has become a form of expensive charity for lawyers. It's clear from the numbers that many lawyers cannot, or will not, participate in that. Sixteen per cent fewer lawyers take legal aid cases than a decade ago; those practising family law are down by almost a third.

The deterrent to lawyers is fees. Legal aid pays as little as $73 an hour; a fair rate would be $120 to $160 an hour. Trebilcock says some increase in legal aid fees is essential to preserve the system.

Legal aid costs Ontario taxpayers $300 million a year; widening access to it and increasing participation by lawyers will be expensive. Attorney General Chris Bentley is enthusiastic about the report but wary, as expected, of giving the middle class access to legal aid.

There are no cheap or easy solutions to this. Reasonable legal aid fees, access to legal clinics, low-cost legal advice hotlines or websites, and further exploring the feasibility of "legal insurance" should all be on the table. This report must be a start, not an end, to the discussion.

This is not just about trying to create fairness; bad things happen to good people and government can't prevent that.

But when cost prevents many Canadians from having access to a justice system they are constitutionally entitled to, this becomes a rights issue. Canadians are entitled to their day in court, if and when it comes, and governments ignore that at their peril.