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Canada: Invest in Legal Aid, defence lawyers tell province trying to clear massive court backlog

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Lawyers say the province must better fund the Legal Aid system. © Belenos/Shutterstock Lawyers say the province must better fund the Legal Aid system.

The province will spend $72 million over the next two years to help clear a backlog in the criminal justice system, but the plan is being criticized by defence lawyers who say Ontario needs to properly fund the Legal Aid system and not let cases linger in limbo.

"If you're going to infuse the system with more money, put it in the right place," said Daniel Brown, a defence lawyer based in Toronto and a vice president of the Criminal Lawyers' Association, which has come out firmly against the province's new plan.

"An indigent defendant is still not getting the support they need to resolve their case."

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The new provincial money will go toward hiring new court employees, including Crown prosecutors to help facilitate faster bail decisions and resolutions.

"This is a meaningless gesture at this point. They're not targeting the people who need it, when they need it. Self-represented people still get lost in the system, it clogs up the system, and it makes it impossible to try cases in a constitutionally acceptable way," Brown said.

Among the reforms is something called the Judge-led Intensive Case Management Court (JICMC) certificate system, which will pay defence lawyers a flat fee of $1,055 to represent people without lawyers, to either help someone plead guilty or to help them through the first bit of the judicial process — but not through a trial.

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Fund legal aid, lawyers say

"Legal Aid support shouldn't only be going to someone who is pleading guilty," Brown said. "The end goal shouldn't be to saddle people with criminal records. The answer is to be guided through the system but they're not interested in helping people."

The Criminal Lawyers' Association is urging defence lawyers not to accept the certificates on ethical grounds.

Anyone can access the JICMC process, regardless of ability to pay. That brings up its own set of issues, said Cassandra Demelo, a London, Ont. criminal defence lawyer.

The province cut $130 million from Legal Aid in 2019, and should put that money back into the Legal Aid system to help fund all aspects of a case, including a trial, if one is needed, not just a guilty plea, Demelo said.

"Instead, our government is agreeing to fund everything but trials." she said. "They must either be very scared of defence counsels' abilities, or they don't believe in access to justice for low-income Ontarians. Either way, they're failing Ontarians. The right to trial and putting the Crown to their onus of proving the allegations beyond a reasonable doubt is the foundation of our justice system."

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Pressure to plead guilty

The new system will lead to fewer resources being available for the poorest defendants who can't afford a lawyer or a trial, the Criminal Lawyers' Association states.

"This will have a disastrous and disproportionate impact on individuals from Indigenous and racialized communities, as well as those suffering from mental illness," the association wrote in a letter.

Jim Dean, another London, Ont. based criminal defence lawyer, said the impact on marginalized people will be big.

"Those of little means, if they're put in a position where they only have a choice to plead guilty, it puts undue pressure on them," he said.

"That these certificates being issued without any financial consideration as to whether somebody is actually able to pay, it takes lawyers away from the pool that is budgeted on a yearly basis to serve those marginalized clients. Where an individual may have the means to pay for a lawyer for a plea, they may say, 'Hey, great, it's free, I don't have to fork out any money to pay for a lawyer,' and it takes away resources from those who would be available to serve the marginalized population."

It's concerning that people may just plead guilty to get their case dealt with for free, he said.

"That's not an effective way or really an ethical way to clear the backlog," Dean said.

Clearing the backlog begins with a well-funded Legal Aid system that gives full representation to low-income people from the time they're charged, said Demelo.

Crown Attorneys must also be instructed by the Attorney General to clear charges for breaching court orders, property crimes and non-violent offences, she said, and judges could require resolutions such as more counselling, community service, or letters of apology, as a way to hold people accountable but not  clog up the justice system.

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