POLITICS
06/01/2019 09:46 EDT | Updated 06/04/2019 19:53 EDT

'Cruel' Legal Aid Cuts Will Further Erode Ontario's Criminal Justice System

Legal aid union and lawyers are fighting back against the province’s 30 per cent budget cut.

This is the first story in UNAIDED, a HuffPost Canada series that examines the effects of recent funding cuts to Ontario’s legal aid system and the impacts on the vulnerable people who rely on it to navigate our complicated justice system.

Mark Johnston doesn’t shy away from talking about what defined the first half of his life — addiction, crime and prison repeated so many times it is hard to keep track.

The 45-year-old also doesn’t hesitate to give credit to the only person who stuck around long enough to help him change — his criminal defence lawyer Jessyca Greenwood.

“She’s the person I’ve known the longest in my life. She’s never given up on me and is the first person who hasn’t,” Johnston told HuffPost Canada. Greenwood began representing him a decade ago, her services paid for by Legal Aid Ontario.

Johnston grew up in group and foster homes in Kitchener, Ont. He said when he was 14 years old, he was arrested for robbing a classmate, and was sent to a juvenile detention centre. He began using crack cocaine when he was 16 years old, and when he wasn’t on the streets, jail was his home. “It’s where you’d go in the winter to stay warm,” he said.

For the next two decades, Johnston was in and out of prison for break-ins and stealing to fuel his drug addiction. He relied on legal aid, a provincially-funded, independent organization that pays lawyers to represent people with little to no income.

Jessyca Greenwood/Supplied
Criminal defence lawyer Jessyca Greenwood has represented Mark Johnston for a decade through legal aid.

Other lawyers had taken on his case before, but Greenwood proved to be different, Johnston said. She was an advocate, dependable and passionate about helping him. For the first time in his life, he felt like someone cared about his future.

“Mark hasn’t had many people stick with him,” Greenwood said. About 60 per cent of her clients rely on legal aid, and Johnston’s story of foster care, homelessness, trauma, and addiction is common. “I’ve found it has been very important for my clients to know that they have a person in their corner who helps them with disputes and stressful situations beyond just their criminal matter.”

In 2011 at a Toronto courthouse, Johnston stood in the prisoner’s box after being charged with robbery. He pleaded guilty to possessing a stolen vehicle, and Greenwood successfully negotiated with the Crown attorney to withdraw a number of serious charges. He was freed from the handcuffs, and allowed to leave, time served.

“That was the turning point of my life,” Johnston said. “I cried, but I was really happy and I hugged her. I listened to the things she told me to do — to try a different path, and put the pipe down and things got better.”

Jessyca Greenwood/Supplied
Mark Johnston did not want his photo published, but was proud of this mug he painted for Jessyca Greenwood as a way to thank you. She keeps it in her office.

Today, Johnston sticks to medical marijuana and stays out of jail.

“Without legal aid there would be no Jessyca, the only one who believed in me, who gave a shit about me, who made me see the only person who’s going to (save me) is me,” he said. Of the province’s recently announced cuts to the publicly-funded service, he said, “The people who are helpless, it will kick them down some more.”

***

Legal Aid Ontario is both a lifeline for the province’s most vulnerable and marginalized people, and an overburdened, under-resourced system that can’t keep up with “extraordinary” demand, said Dana Fisher speaking on behalf of the Society of United Professionals, the union representing legal aid lawyers. She’s also a legal aid duty counsellor, who helps people navigate court systems. These people often turn to legal aid as a “last hope.”

Legal aid compensates private criminal lawyers to represent more than 56,000 low-income clients at each stage of criminal court — at bail hearings, preliminary hearings, jury trials and sentencing, for example. It funds lawyers to assist refugees fleeing war and persecution to claim asylum. It runs community clinics that serve Indigenous people, and helps those with chronic, life-altering disabilities get social assistance. Last year, legal aid issued 102,873 certificates for people to receive representation.

A person with no dependents is eligible for legal aid if they earn no more than $17,731 a year (a six per cent increase from last year), according to the organization.

Samantha Beattie/HuffPost Canada
Dana Fisher, a legal aid union representative, outside of the Ministry of Attorney General's office in May protesting the cuts to legal aid. She was joined by other Society of United Professionals members, including President Scott Travers (right).

This spring, all of legal aid services were put at risk when the province suddenly slashed its budget by 30 per cent — a cut that Fisher described as “cruel.” Undoubtedly, it will be more difficult for lawyers to help people like Johnston, and the thousands of others navigating complicated criminal, immigration and civil law and appeal systems, she said.

“These catastrophic cuts will make access to justice far worse and impossible for many,” said Fisher.

The Ministry of the Attorney General said it’s not just about saving money, but also about getting the most value for the money it does spend.

“The prior government spent more and more money on legal aid without achieving the results that legal aid’s clients and taxpayers expect,” said press secretary Alexandra Adamo on behalf of Attorney General Caroline Mulroney.  

“While some lawyers may not welcome renewed accountability at legal aid, every dollar saved is a dollar we can invest in the services that matter most to people, such as public health care and education.” 

Rene Johnston/Getty Images
Attorney General Caroline Mulroney at Queen's Park in Toronto Oct. 30, 2019. She's overseen the cut of Legal Aid Ontario's budget by 30 per cent.

 The province axed legal aid’s annual budget from $456 million to $323 million despite a 2017 senate committee report concluding “insufficient” pre-existing funding contributed to people accused of crimes not having proper legal representation and delays in the criminal justice system. The province plans to reduce annual funding by another $31 million by 2021-2022.

Legal Aid Ontario said this year it will cut $38 million from the $251 million it allocates to compensating private lawyers, including those practicing criminal and immigration law, and is considering reducing what it calls “discretionary payments.”  

The organization caps the number of hours lawyers can bill. For example, lawyers are paid a maxiumum of 15 hours to prepare for and represent a client charged with a serious crime like sexual assault, according to Legal Aid Ontario. In that timeframe, they are expected to go to multiple court dates, prepare to cross-examine witnesses, and review hundreds of pages of documents, including evidence.

You’re protecting the rights of everybody.Alison Craig, lawyer

If lawyers go over the time cap, which they often do, they can apply to Legal Aid Ontario for discretionary payment, but they already almost never get paid fully for representing legal aid clients, four criminal defence lawyers told HuffPost Canada.

They also get paid an hourly rate that’s a third of what they could charge privately, $110 to $136 versus upwards of $300, said criminal defence lawyer Alison Craig, who’s represented legal aid clients almost exclusively for more than a decade. She said experienced lawyers will likely turn away legal aid clients because “it’s simply not economically viable.”

Lawyer Jeff Hershberg, who has 14 years of experience, said he’s considering dropping his legal aid caseload to 10 per cent, down from 75 per cent a couple years ago.

“I didn’t go into criminal law to get rich, but I also have a family and if I spend all my time on legal aid, it’s more stress than I need in my life,” Hershberg said. “I don’t need to spend hours begging legal aid for money they aren’t going to come through with anyway.”

As more junior lawyers are left to take on complicated cases involving sexual assault or homicide charges, for example, clients will ultimately suffer.

Samantha Beattie/HuffPost Canada
Protesters outside the Ministry of Attorney General's office in Toronto took a stand against the cuts to legal aid, saying they're unjust.

“The quality of counsel and actions of counsel are very important to our criminal justice system, and innocent people can be found guilty when inexperienced lawyers do the case,” said Hershberg. “And I don’t mean just legally innocent, but also morally innocent.”  

Fisher said she is concerned the result will be a two-tiered justice system, where people who can afford to pay for their own lawyer will get superior service compared to those who can’t.

***

At 9:30 a.m. on a Monday in early May, Craig strode down the vinyl-floored hallway of the Scarborough courthouse, towards a tall, jittery man wearing dark sunglasses and a tan tracksuit. He pulled a crumpled legal aid certificate from his pocket and handed it to her.

“I’ll try to make this all go away. Hang tight, ok?” Craig said. The man nodded, and sat down on one of the hard benches lining the walls. He read from a tattered bible, waiting for his moment in court. HuffPost Canada agreed to protect his identity so as not to jeopardize his chances of rehabilitation, and future employment. 

Samantha Beattie/HuffPost Canada
Criminal defence lawyer Alison Craig stands outside a Toronto courthouse in between cases. She represents almost exclusively legal aid clients.

He’s a “classic vulnerable legal aid client” — Black, male, coping with schizophrenia and homelessness, living out of the back seat of a car, Craig said. “Oftentimes people who find themselves in need of legal aid aren’t bad people. They’ve gotten in trouble with the circumstances of their life and whatever the case may be they deserve help, and a competent defence.”

Her client had no criminal record but was charged with assault for an incident that happened in a Scarborough rooming house a year ago, Craig said. His trial was scheduled to begin, but the complainant never showed up to testify.

Within two hours, Craig reached an agreement with the Crown attorney to instead offer her client a peace bond — if he stays out of trouble for one year, the charges will be dismissed. “Peace, peace, peace all the way,” he told the judge in agreement, before leaving the courtroom.

As she prepared to head back to the office, Craig heaved her oversized purse onto her shoulder, equipped with a dozen felt-tipped pens in colours ranging from yellow to magenta. “My work is already so dark. I have to keep it interesting somehow,” she said.

Later, Craig calculated that of the 17 hours she worked on his case, she will get paid for half. She’ll keep doing the work, though, because, she said, everytime she stands in front of the judge and presents her client’s side, she’s not there for just that one person, but for society as a whole.

“You’re protecting the rights of everybody when it comes to upholding the laws,” said Craig.

Also on HuffPost