Cuts to legal aid funding in criminal cases could delay bail hearings, force innocent people to spend longer in jail and cause a “crisis” in the bail courts, say defence lawyers and the union representing more than 350 Legal Aid Ontario staff lawyers.

The cuts announced Wednesday include ending legal aid funding for private criminal lawyers to conduct bail hearings for $300, instead requiring almost all bail hearings to be conducted by duty counsel. Duty counsel are legal aid funded lawyers who, when assigned to bail court, assist people who don’t yet have a lawyer or cannot afford one.

“This is going to create, as far as we are concerned, a crisis in the bail courts,” said Dana Fisher, spokesperson for the Legal Aid Ontario Lawyers’ union. “Our concern is there won’t be sufficient time and resources for (duty counsel) to actually prepare the bail hearings for clients.”

Bail hearings can require a lot of work, including speaking with the accused, reviewing the evidence, assessing the strength of a case, finding a surety and devising a release plan, said criminal defence lawyer Stephanie DiGiuseppe.

Failing to provide enough resources to run a fair bail hearing will mean people spending one or more nights in jail before being released or denied bail, she said.

For many that means being held at the Toronto South Detention Centre, where the conditions and frequent lockdowns were recently described by a judge as inhumane and “completely unacceptable.”

DiGiuseppe said being held without bail until a trial that could be a year or more away increases the possibility of wrongful convictions, as people may plead guilty to get out of jail sooner. She said the impact of the cuts will fall disproportionately onto racialized and vulnerable people who are overrepresented in the population who meet the low-income requirement for legal aid.

Read more:

Sweeping cuts to legal clinics called a ‘directed attack’ on Toronto and organizations challenging Ford government

Toronto’s most vulnerable residents will bear the cost of legal clinic cuts, advocates say

It’s now up to Court of Appeal to decide if Ford government’s Toronto council cut will stand

Fisher said there has been a hiring freeze at Legal Aid Ontario, leaving many unfilled vacancies. A Legal Aid Ontario spokesperson said Wednesday that no new duty counsel will be hired, though there are some changes to the program that will be announced in the coming weeks.

Fisher, who has worked as a duty counsel in Toronto for almost 10 years, said they mostly do straightforward releases that are arranged in agreement with the Crown and more complicated hearings where the release is contested.

According to Legal Aid Ontario, in 2018-19, 81 per cent of bails were done by duty counsel. That number may vary between 50 per cent and 90 per cent by courthouse and jurisdiction, Fisher said.

Criminal lawyers often assist in cases that require more time and resources to prepare, or when they are already representing the accused person on other charges and have already reviewed the available evidence, she said.

If duty counsel conducted the hearing it would mean a doubling up of legal aid funded work and could prevent an accused person from the right to use the lawyer of their choice, she said.

Lawyers will also have extra funding for representing clients with mental health-related issues cut by half — to 2 1/2 hours from five, according to Legal Aid Ontario. Funding to prepare submissions for a Gladue report — used to provide additional context in sentencing hearings for Indigenous people — was cut to three hours from five.

The importance of providing enough resources for Gladue reports was one of the calls for justice in the recently released report from the National Inquiry into Missing and Murdered Indigenous Women and Girls.

“These are people with desperate needs and complex problems,” said defence lawyer Annamaria Enenajor. The cuts mean lawyers who accept legal aid clients will have to do the same amount of work — often far beyond what is covered by legal aid — for even less, and could result in fewer doing the needed work, she said.

Fisher said the “cruel and reckless cuts” are being made before a review of the legal aid system is finished. “Rather than cut first and hold an empty review after, we are calling on Premier Ford to stop these cuts until a transparent review is complete,” she said.

In a statement, Jesse Robichaud, spokesperson for Attorney General Caroline Mulroney, said: “Legal Aid is no longer going to pay another criminal lawyer to show up for two hours to bump aside the already available lawyer. This is bad news for lawyers who bill by the hour, but good news for taxpayers.”

Loading... Loading... Loading... Loading... Loading... Loading...

Several reports have documented the rise and cost of pretrial detention in Ontario and in Canada. In 2015, more than half of inmates in provincial jails were presumed innocent. Reforms implemented in Ontario under the Liberal government have made some progress in reducing the number of people held in custody unnecessarily, but these cuts could set that back, advocates said.

Being held in pretrial custody is expensive and means that an accused person cannot have a job, support their family or make enough money to pay for a lawyer, increasing the burden on legal aid, Enenajor said.

“It’s one thing to think about the unforeseen financial cost about a decision like this and it being short-sighted but the true cost is the human cost,” she said.