Feds should help carry the burden in Ontario as they have for civil litigation, says Michael Spratt
When Ontario’s Ford government slashed legal aid funding for immigration services by $26.8 million, the federal government stepped in to fill the gap. Trudeau said that federal assistance was “crucial at a time when provincial cuts have jeopardized these vital services.”
When a lack of stable funding threatened to shutter Pro Bono Ontario’s civil litigation services, the federal government provided funding so the organization could continue to help low-income Ontarians access justice.
And when Ontario continued its slash-and-burn tactics through deep cuts to the criminal legal aid system, the federal government … did nothing.
No funding.
No support.
Ontario’s cuts to criminal legal aid have jeopardized a vital service, but unlike immigration services, or Pro Bono funding, or the millions of dollars the federal government has handed out to legal clinics, there has been no help from Ottawa for criminal legal aid.
Sure, Canada's Attorney General David Lametti was quick to throw shade at Ford when he announced the legal aid cuts, saying that the Ontario government’s rejection of shared responsibility for legal aid would “leave many of the province’s most vulnerable at greater risk.”
Lametti was right when he said that governments have an obligation to represent and support all people, not just the people who can afford to hire legal counsel.
So why, then, have Lametti and the federal government so utterly failed to step up to save Ontario’s criminal legal aid system?
Federal leadership when it comes to criminal legal aid is essential, especially given that the Trudeau government has continued the longstanding federal tradition of enacting criminal legislation with no thought to the costs that those laws download to the provinces and their legal aid systems.
You see, every new federal criminal law brings increased provincial costs. But no federal criminal law has ever included provisions to help account for or deal with those costs.
Take minimum sentences; under the Harper government the number of offences with mandatory minimum punishments exploded and this has resulted in more trials, lengthier litigation, and exploding jail populations. These all, in turn, placed greater burdens on provincial governments and the legal aid services they pay for.
But this thoughtless downloading of justice costs was not just a Harper problem. The Trudeau government has been no different.
Not only have the Liberals failed to repeal Harper’s ill-conceived minimum penalties, as they promised to do, but they have come up with new ways to increase justice system costs. New sexual assault laws and an expansion of the right to counsel for complainants have resulted in hours of additional court time and thousands of dollars in extra costs for most sexual assault cases. And it is provincial legal aid systems that are left to pick up the tab.
And there is the cost of federal inaction on other necessary justice reforms such as decriminalizing drug use and decoupling mental disorders, poverty and addiction from the Criminal Code, which would go a long way to reducing the burden on provincial legal aid systems.
So why the inaction? It would take political guts for the federal government to reverse the damage Harper did to the justice system and it would take real political courage to legislate the reforms our justice system so badly needs.
Maybe this explains why Lametti’s mandate letter made no mention of substantive justice reform or legal aid funding. The lack of any legal aid direction is particularly odd since Trudeau did tell Lametti to establish an independent Criminal Cases Review Commission to examine potential wrongful convictions.
A strong legal aid system is the first line of defence against wrongful convictions. But because of Ford’s cuts, more and more accused before the courts are self-represented in Ontario. They face their trials against skilled and well-funded prosecutors, alone.
The inevitable result is wrongful convictions.
But Trudeau and Lametti appear content to sit on their hands while Ontario’s criminal legal aid system crumbles.
They seem content to abandon any pretext of justice reform and Criminal Code modernization.
They seem willing to continue the historic tradition of downloading justice cost onto the provinces.
So, in the end, Ford and Trudeau represent a perfect storm for the destruction of the criminal legal aid system in Ontario. Ford is actively taking steps to break legal aid. And Trudeau seems too cowardly to help pick up the pieces.
