More self-represented litigants due to deficit?

Ontario lawyers say the justice system could be looking at more self-represented litigants as Legal Aid Ontario grapples with how to tackle a $26-million deficit.

In December, LAO — an independent agency at arms length of the government that funds it — revealed its deficit and published plans to alleviate its budgetary woes, which included a scale back on certificates issued for accused people who do not face a risk of incarceration.

Lawyers say this could mean that many will be denied legal representation in Ontario’s courts, causing an increase in self­represented litigants, but LAO officials say that is not the case.

Criminal defence lawyer Louis Strezos says LAO’s reduction in certificates will deny access to justice for many accused and will burden the courts with an influx of self-represented litigants. Strezos says he is very troubled by some of the cuts LAO has announced. LAO has an annual budget of $440 million.

“Whether there is enough money to serve everybody charged with a criminal offence — the answer is no, but it’s troubling when there is a deficit and there are service cuts,” Strezos says.

John McCamus, the chairman of the LAO board, however, says these legal services will continue to be available through duty counsel who performed those services before certificates were expanded in June 2015.

“It’s important that people understand the service reduction is not eliminating service for these people,” says McCamus.

He says the suspension of those certificates will last only for most if not the entire upcoming fiscal year, and LAO will reinstate them in April 2018.

“We hope we will be able to cover it with funding increases in future years, so we think this is a temporary problem,” he says.

Michael Ras, executive director of the Federation of Ontario Law Associations, says the cut could also cause more people to enter guilty pleas early in the process without knowing that plea has secondary consequences.

“That’s the bigger danger — that if they had worked out a different plea deal or had fought the charges with appropriate defence counsel, that would have been the best way to do it,” says Ras.

LAO’s plans also include freezing salaries, lowering administrative costs by 10 per cent and not filling vacancies where possible.

Attorney General Yasir Naqvi recently announced he will launch an independent review of LAO in light of the deficit.

“One of the things they will look at is the cause around that as well as how do we get to balance without cutting services,” he says.

“From my point of view, and this is where my concern comes in . . . we have seen [an] unprecedented amount of new dollars go in the system. I have questions as to why the deficit exists. I’m not an expert in auditing or accounting, so let’s get experts in.”

The provincial government has provided an additional $86 million in funding since 2014.

Strezos says he welcomes the review, but he hopes it will include an analysis of the delivery of services in addition to an audit of the agency’s finances.

“I call on the Ontario government that they do that comparator, and not just for fiscal reasons,” he says.

“It’s time that we have this important policy discussion as to what the role is of Legal Aid and its interaction with the private bar, and hopefully come to some equilibrium,” he adds.

Naqvi says the review will evaluate the agency’s forecasting methodology and internal governance, as well as its plan to balance its budget.

Members of the private bar have voiced concerns that LAO’s budgetary woes are the result of hiring too many staff lawyers.

The number of staff lawyers employed by the agency has risen to 294 in 2016 from 206 in 2012, according to LAO, which declined to provide numbers for the five years before 2012.

LAO says the majority of its current staff lawyers are duty counsel who provide direct services at courthouses and that less than 15 are senior counsel.

Anthony Moustacalis, president of the Criminal Lawyers’ Association, says the private bar is more efficient.

“Before . . . they would simply decrease the number of certificates and they could meet their financial goals, as unfortunate as that might be,” he says.

“Now, when they need to provide more certificate services and they run out of money, they can’t fire people because they’re now in a collective bargaining situation and they don’t have a mechanism yet to discharge employees that they don’t need.”

McCamus, however, says the deficit was the result of high demand for new services introduced to certificate coverage that were formerly provided by duty counsel.

“There were too many of them and they caused a deficit, a major portion of the deficit. So we’re moving them back to duty counsel until we can catch up,” he says.

For example, LAO received a 44-per-cent increase in demand for refugee services in 2016.

Since Naqvi announced his review, LAO has rescinded a $1-million cut it had proposed on legal clinics as part of a plan to deal with the deficit.

The agency received a commitment from MAG that it would provide the $1 million.

“Clinic boards and directors would have been making decisions in these next few weeks regarding laying off staff,” says Lenny Abramowicz, executive director of the Association of Community Legal Clinics of Ontario. While the overall budget for the clinics is approximately $75 million, Abramowicz says the cut would have had a significant effect on them as they each operate on small budgets. A cut could mean reducing staffing and therefore decreasing client services, he says.

MAG was in the process of retaining an external firm to conduct the review, and Naqvi says the audit will be complete by March 31 and made public shortly after that.