Washington College of Law            4801 Massachusetts Ave. N.W.  Washington, D.C. 20016

THE ONTARIO (CANADA) LEGAL AID PROGRAM 

Ontario first implemented an organized legal aid plan in 1951. Applications went to local committees, which assigned a lawyer to eligible clients. Those lawyers provided legal assistance on a volunteer basis. By 1963, the Ontario Government and the Law Society of Upper Canada decided that the voluntary plan was not adequately meeting the demand for legal aid and that it made excessive demands on the volunteer lawyers.

In 1967, the Ontario Government introduced legislation to create the Ontario Legal Aid Plan. The joint committee which recommended the creation of a formal system of legal assistance extensively researched the pros and cons of the basic American approach to legal aid, including assigned counsel, voluntary defenders, public defenders and mixed private and public systems, but in the end rejected all of them.

The Ontario system was eventually based on the legal aid plans operating in England and Scotland. In these systems private lawyers represent clients on legal aid certificates and are paid for their services on the basis of fair compensation for work done. Ontario’s approach remained unique, in that it also included the provision of duty counsel lawyers for unrepresented people in criminal courts. The Plan was to be financed by the provincial government, while being administered on a day to day basis by the Law Society of Upper Canada.

Providing equal access to justice for poor people has remained the guiding principle for the Ontario Legal Aid Plan since the introduction of that legislation more than 30 years ago. Legal aid today is available across Ontario, to lower-income people for a variety of legal problems, including criminal matters, family disputes, immigration and refugee hearings and poverty law issues such as landlord/tenant disputes and employment insurance.

Every Ontario resident and, in certain cases, non-residents requiring legal assistance can apply. Eligibility is based on financial need and the type of case. The applicant may pay nothing or a portion of the costs of the legal aid, depending on their financial situation. Once approved, a legal aid certificate entitles a person to retain the lawyer of their choice. The lawyer is then reimbursed by the Legal Aid.

Legal assistance is also available through 70 independent community legal clinics. The clinics were first established in 1971 and are designed to provide advice and representation issues such as housing, social assistance, pensions, workers’ compensation, employment insurance and employment rights. Many clinics are designed to meet the needs of specific disadvantaged groups, such as the disabled, the elderly, children, youth and minorities. The clinics also produce public legal education materials.

In 1994, the government moved from an open-ended to a capped funding arrangement for legal aid. This change led to a period of turbulence for the Legal Aid Plan, legal profession and public. Over the next couple of years, a great deal of attention was paid to the financial management of legal aid, and the implications of funding issues for service delivery as the number of certificates issued dropped significantly between 1995/96 and 1996/97.

In response, the Ontario government appointed law professor John McCamus to head a review of the Ontario Legal Aid Plan. A Blueprint for Publicly Funded Legal Services, the Report of the Ontario Legal Aid Review, was released in September 1997 and recommended the creation of an independent body to govern the Plan. It also recommended experimentation with service delivery models such as the use of staff lawyers, contracting and wider use of duty counsel, with more focus on serving client needs.

The Ontario government introduced legislation in late 1998 that creates an independent agency called Legal Aid Ontario (LAO). The purpose of the new corporation is to promote access to justice throughout Ontario for low-income individuals. The corporation’s objectives are to establish and administer a cost-effective and efficient system for providing high quality legal aid service to low-income individuals.

Legal Aid Ontario is required to submit an annual budget based on a three-year cycle to the Attorney General for approval. It will also be required to enter into a memorandum of understanding with the Attorney General every five years and will submit annual business plans and service priorities for each year.

People with little or no income, or on social assistance usually qualify for legal aid. The legal aid office looks at each person’s financial circumstances and the type of legal problem to decide on eligibility.

The financial test is based on both income and assets, and takes into account monthly expenses. In some cases, the client may be asked to make some financial contribution to the cost of their legal services.

When a client is found to be eligible, legal aid issues a legal aid certificate. A client can then take the certificate to the lawyer of his/her choice. Legal aid authorizes the lawyer to spend a set amount of time on the different issues in a case, and pays them for those services.

Duty counsel are lawyers assigned to courts to assist clients who do not have a lawyer with them in the courtroom. In the criminal courts, duty counsel advise clients of their right to plead guilty or not guilty, help them apply for bail or to ask for an adjournment. Duty counsel also represent clients at bail hearings, pleas of guilty and sentencing.

In family court, two duty counsel are regularly scheduled on motion or other list days so that both sides of a family dispute can receive legal advice and representation.

Duty counsel also accompany circuit courts in remote areas and attend immigration hearings in Toronto and Mississauga. Legal Aid provides a 24-hour telephone advice service for persons in custody, and for young offenders asking advice about alternative measures.

Clients may be subject to a financial eligibility test based on income and assets in order to qualify for duty counsel services. If the client provides information during the course of an interview that indicates that they may not be eligible for services, duty counsel may perform the two to three minute test.

The Advice Lawyer is a service open to the public, operating between three to four hours a week. Lawyers who are paid an hourly rate by legal aid provide advice, assistance and review documents in over 83 communities of the province. Clients may have to qualify financially before getting help, but the service is free for people with no income or on social assistance.

Seventy community clinics across the province provide a wide range of information, advice and representation in clinic law matters such as housing, social assistance, pensions, workers’ compensation, employment insurance, immigration and employment rights. Clinics are located in most urban areas, and many rural communities, including the remote north.

Community legal clinics include specialized legal services to groups such as the disabled, elderly, injured workers, and native people. These clinics include Advocacy Centre for the Elderly, Justice for Children and Youth, Advocacy Resource Centre for the Handicapped, Injured Workers’ Consultants, Industrial Accident Victims Group of Ontario, the Landlord’s Self-Help Centre, and Aboriginal Legal Services of Toronto. Community Legal Education Ontario is devoted to the production of public legal education materials for clinic client groups.

Legal Aid funds six university-based student legal aid societies. The societies, using law students under the supervision of law school staff, offer legal assistance and public education. These kinds of special initiatives encourage access to legal services. Legal Aid also provides a mentor service so that junior lawyers can be advised by more senior lawyers on matters of law.

In 1989, Legal Aid extended a Toronto program of mediated settlement conferences in family law cases across the province. Area directors have been trained in the use of interest-based bargaining and mediation techniques. Participation by clients in the program is voluntary and the parties’ lawyers are present. Area directors or their representatives encourage the parties to reach their own resolution of the issues, subject preventing them from entering into agreements outside the range of outcomes permitted by a court.

Legal Aid also provides a special service to financially eligible victims of spousal assault. The program authorizes institutions or agencies to conduct a simple financial eligibility test which allows a woman to receive two hours of legal services immediately from the lawyer of her choice.

Legal Aid Ontario has a Research Facility which provides specialized research to lawyers representing clients on legal aid certificates in criminal and civil law matters.

The Nishnawbe-Aski Nation is made up of 44 individual bands and has a population of approximately 26,000. The area occupied by this nation spans the province in what is known as the remote north. The 44 communities are scattered throughout this area and, with a few exceptions, may only be reached by air.

The Nishnawbe-Aski Legal Services Corporation was formed in 1989 to aid in the delivery of legal services. The corporation is directed by a native Board of Directors and legal services are provided by the private bar.

The Board of Directors in conjunction with the Legal Aid Plan establishes the policies and priorities of the corporation. Each tribal council has at least one representative on the Board. The head office is on the Fort William reserve near Thunder Bay.

The corporation offers cultural training for members of the private bar who provide legal services and provides public legal education to the people of the Nishnawbe-Aski Nation. Native community legal workers are trained to provide advice and counsel in criminal, family and poverty law. They spend the bulk of their time in the communities and prepare cases for counsel. They interview those who are required to appear in court, marshall witnesses, prepare briefs and instruct counsel prior to court.

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