Chapter 4: The Legal Needs of Low-Income Ontarians
As part of its Terms of Reference, this Review was directed to identify the kinds of legal needs commonly experienced by low-income Ontarians. In an attempt to gain as clear an understanding as possible of these needs, the Review took a number of steps. First, we circulated a consultation paper to which more than 170 seventy written responses were received from across the province. Also, Professors William Bogart and Colin Meredith were commissioned to prepare a background paper for the Review entitled "Current Utilization Patterns and Unmet Legal Needs", and many of the other background papers and case-studies similarly addressed the legal needs, met and unmet, of low-income Ontarians in particular contexts.
It is a fundamental precept of this Review that allocation decisions regarding the limited resources of legal aid should flow from an in-depth understanding of the legal needs of low-income-Ontarians. While the Review had neither the time nor the capability to conduct extensive empirical research on this issue, several key conclusions can be reached on the basis of the investigations that were undertaken. First, it is clear that the legal needs of people who have low-incomes differ from those of people with means, in part because particular areas of law apply only to the former group, whose severely restricted financial resources create special problems of access to the providers of legal services. Second, factors that contribute to a person's poverty, such as disability, age, or race, create specific legal needs. Third, because of these factors, the allocation of legal aid resources should rest upon the development of mechanisms for assessing, on an ongoing basis, the particular and changing legal needs of low-income Ontarians. Further, these assessments should be based on actual circumstances rather than on assumptions about the kinds of legal issues that may be significant.
This chapter describes some of the legal needs that arise in the lives of low-income residents of Ontario. It also canvasses the array of their legal needs and identifies some of the special needs of groups that can be said to suffer from multiple disadvantages. It concludes that needs extend across a broad range of law and legal services. The chapter discusses how legal needs have been determined in various jurisdictions, and some of the methodologies used for determining them. It also argues that legal aid services and their delivery must be needs-based, and it suggests how this goal might be achieved on an ongoing basis.
METHODS TO ASSESS LEGAL NEEDS
The legal needs of low-income Ontarians stem from both legal problems in the classic or commonly understood sense and problems that are an outgrowth of their poverty, and thus "particularly their own." Some submissions to the Review considered the most pressing legal needs of low-income people to be those flowing from issues fundamental to human health and survival-housing, income maintenance, employment, and access to health care. Other submissions assessed legal needs, not on the basis of the seriousness of the underlying legal problem, but rather on that of the circumstances of the persons who may be experiencing the problem: abused women, Aboriginal people, visible minorities, persons with disabilities, youth, or the elderly. Still other submissions highlighted needs principally in the areas of criminal and family law.
As Bogart and Meredith suggest, three main problems occur in attempts to assess empirically the breadth and scope of legal needs of the economically disadvantaged: first, the concept of "legal needs" can be an elusive one; second, there is a general lack of information about what the legal needs, however defined, of low-income people are, particularly in Ontario; third, since studies treat criminal and civil legal needs separately, the multifaceted or overlapping nature of such needs can be obscured.
DETERMINING LEGAL NEEDS: PERSPECTIVES AND STATISTICAL GAPS
Low-income Ontarians require legal aid services that are responsive to their legal needs, yet, as Bogart and Meredith point out, "legal need" can be difficult to conceptualize. First, lawyers may be less attentive to some issues that are of great importance to a person because these issues have traditionally been viewed as having only minimal legal content. Second, these issues can be hard to identify without specialized legal training. Third, as the law itself can change, an issue or a problem that once had no legal dimension may now have one.
In determining what the legal needs of low-income people are, an important consideration is who is in the best position to articulate those needs. The Report on Systemic Racism in the Criminal Justice System makes it clear that different constituencies within the criminal justice system saw issues, needs, and problems differently. In other words, experience is partial, and the usefulness of research has its limits. When we consider what the legal needs of low-income people might be, we can expect that different constituencies will posit different or differently prioritized needs. As Bogart and Meredith suggest, if the purpose of legal aid is to provide a range of services comparable to those available to fee-paying clients, will that vantage point for defining what constitutes a legal need be too conventional or too individualist to effectively meet the pressing legal needs of low-income people and the different ways in which they live and come into contact with the law?
Legal and social services providers, judges, administrators, academics, community groups, and consumers of legal aid services have indicated to this Review what they believe the legal needs of low-income people to be. Every group has spoken from their own experience or from their own work. The information has proven insightful and invaluable. Each person has his or her own view of what poverty is about and what legal needs flow from it. When these views are consolidated, a picture of the legal needs of low-income people emerges.
That is not to say, however, that there exists a wealth of reliable statistical information about the legal needs of low-income people or about which delivery models provide the best and most cost-effective service. As the Canadian Bar Association urges in their submission to the Review, efforts must be made to collect the data necessary to make considered decisions about the financial resources required to fund legal aid adequately, and this must be done on a continuing basis.
We need better information about the kinds of legal problems that people have, and better information on the qualitative effects on clients who proceed in legal matters without representation. We need more detailed statistics on the experience and specialization of the lawyers who participate in the Plan's certificate program, more detailed information on the costs of the various stages of legal proceedings, more detailed reporting of applications and new certificates, and more information about the quantifiable effects of the funding decisions that have limited coverage to date. As set out in From Crisis to Reform: A New Legal Aid Plan for Ontario, the "tracking" of applicants denied legal aid, and more detailed information about the individuals helped by duty counsel, would also be of assistance in determining legal needs and evaluating them.
NEEDS FOR DIFFERENT TYPES OF SERVICES
As indicated above, the Review considers it a matter of first principle that the legal aid system be designed around needs rather than delivery models. That is, the starting-point for designing the service-delivery system ought to be an assessment of needs rather than an assessment of the capacity of a particular delivery system. One of the difficulties in assessing needs is divorcing such evaluations from preconceived notions of the nature of available services.
Not all legal needs involve advocacy or representational services. For example, the demand that low-income people have for legal information is profound. As the National Council of Welfare expresses it, "part of the problem is that low-income persons, who have the least formal education, who often lead isolated lives, and who have usually suffered many injustices, are so badly informed they do not know or believe they have any rights".
Many submissions to the Review have argued that the legal needs of low-income people can be met in a variety of ways, not all requiring representation: a phone call, a letter, some summary advice, assistance filling out a form or a court document, a referral to a non-legal service provider, support in bringing a group together to solve a common legal problem, law-reform initiatives to help inform lawmakers about the effects that legislation or proposed legislation has or will have on low-income people, assistance with participating in a hearing or through complicated and protracted litigation. As several practitioners argued in their submissions, many of the pressing problems faced by their more disadvantaged and more marginalized clients can be settled with a couple of hours' work. In thinking about legal needs, then, it is important to keep in mind that they vary in intensity in terms of what service response may be appropriate.
THE AVAILABLE DATA ON NEEDS
Bogart and Meredith conclude that there is little knowledge of legal needs and, in particular, unmet legal needs. Indeed, the very definition of what constitutes a legal need is contentious, as the measures for determining it vary: the social-indicator approach uses factors such as unemployment, geographic isolation, gender, ethnicity, or receipt of social assistance to assess articulated goals of legal-service delivery programs; the qualitative approach endeavours to understand a particular group's encounters with the law and legal institutions; the quantitative approach samples general populations.
Nevertheless, several studies have attempted to survey the legal needs of low-income people in the context of civil law. The Ontario Civil Justice Study, for example, undertaken in 1987-88, surveyed three thousand households. Approximately one-third of the respondents reported one or more serious legal problems. The most frequently reported involved personal injury, consumer, debt, and discrimination issues. In 1989, the Maine Commission on Legal Needs was established to oversee a study of the civil legal needs of Maine's poor. The four categories of needs most frequently cited by those surveyed were income-maintenance, health, family, and utility problems; about 65 per cent of all legal problems reported involved basic necessities.
The most recent American Bar Association (ABA) Legal Needs Study was conducted in 1993 and focused on low-income and moderate-income homes. Overall, approximately half of the households surveyed reported facing a situation that raised a legal issue within a twelve-month period. Legal needs most likely to be taken to the civil justice system arose from family and domestic issues; legal needs least likely to be taken to the civil justice system involved issues relating to community services, health, employment, housing, property, personal finances, and consumer matters. Older persons and the "profoundly poor" in the ABA study reported substantially fewer legal needs, and low-income-people expressed concern about the cost of legal services as a deterrent to pursuing legal remedies.
GATHERING DATA ON LEGAL NEEDS
Bogart and Meredith argue that any empirical measurement of legal needs is expensive and limited in its usefulness. Legal needs are never static, and neither is the law. Legal needs can differ across regions and communities, as many of the submissions to the Review have emphasized. Further, in general samplings, the reporting of legal needs is subjective, and caution needs to be taken in quantifying the results. How, then, do we gather data on the legal needs of low-income people in order to build a legal aid system that is responsive to need?
Many of the submissions to the Review have suggested that service providers, clients, and community groups should have some formal way of providing input to Plan administrators on an ongoing basis about what types of legal coverage are important relative to a particular area of law, or with respect to a particular community or region. Plan administrators themselves are an important source of information with respect to client needs and the way in which needs change over time.
Further, Bogart and Meredith argue that legal clinics are well situated for this task and should be used in a more formal and systematic way for this purpose: clinics are located in many parts of the province; some represent special constituencies such as the disabled, the elderly, or the Aboriginal community; all come from a tradition of community-board structure and community development; clinics are well versed in the issues of "poverty law" and are attentive to legal and legislative changes that have an impact on it. Bogart and Meredith also surveyed Area Directors and duty counsel with respect to a variety of issues, including the need for services. In sum, legal clinics, Plan administrators, and duty counsel should be utilized more effectively as sources of data on the changing legal needs of the poor.
THE LEGAL NEEDS OF LOW-INCOME ONTARIANS
As the National Council of Welfare has reported, poverty statistics for 1995 turned out to be "shockingly high"; based on their 1995 analysis, the Council estimates that, in 1997, 15.3 per cent of the total population of Ontario, or 1,698,000 people, live in poverty. One of the most significant contributors to this situation has been the downsizing economy, with high levels of unemployment and fewer full-time jobs. As Statistics Canada has found, new jobs are being polarized in terms of short-term and long-term opportunities: that is, as we experience increases in the numbers of people looking for secure employment, more people are out of work for longer periods of time. Further, incomes for families and unattached individuals have been stagnant since 1980.
Poverty, then, is an issue for growing numbers of Ontarians who may need to rely on income-maintenance schemes because of such factors as old age, disability, or injury, or who face longer periods of unemployment as they move in and out of the workforce. What, then, are the legal needs of people who have low-incomes?
When many people consider why they might need access to lawyers and legal services, they think about a divorce, the sale of their house, or what transpired after their teenager was arrested for shoplifting. These are commonly understood to be the textbook models of personal legal problems that Stephen Wexler sets out in his leading article on "poverty law," "Practicing Law for Poor People": they occur when a settled and harmonious pattern of life is interrupted by a car accident, job loss, marriage breakdown, or death in the family.
Certainly low-income people have problems requiring legal assistance that are "common to all humanity", such as accidents, custody disputes, and children who come into conflict with the law, but what results from the widespread legal regulation of the poor is that the "poor do not lead lives into which the law seldom intrudes". In their submission to the Review, Parkdale Community Legal Services has argued that low-income people do not have the luxury of occasional or discrete encounters with the legal system because most of the legal problems they face are problems of everyday life. As the National Council of Welfare has pointed out, the poor depend upon the law itself for the necessities of life.
What does the National Council of Welfare mean by this? Unlike middle-class people, persons with low-incomes are subject to complex laws and obscure legal regulations when they seek the means to survive. As Janet Mosher and Ian Morrison state in their research paper for the Ontario Civil Justice Review, "the sites where disputes with potentially 'legal' aspects are most likely to arise are in relation to the welfare state, to landlords, to people and institutions which control access to the basic necessities of food, shelter, and so on". The practice of law for low-income people, then, is often about helping them understand and cope with law, regulation, or policy in order to obtain something promised to them by law or to preserve their access to it.
Unlike that of people of means, low-income people's relationship to government administrators and law will determine such things as their income, their housing, their health care, or their conditions of employment. In other words, the legal needs of low-income people extend across a wide range of areas because, while sharing many legal problems encountered by their more affluent counterparts, they also have, as pointed out in the submission to the Review by the Clinic Funding Committee, "lives significantly different from that of the traditional consumer of legal services."
Aside from the various areas of law that have an impact on the lives of low-income people, the legal system, itself, is complicated and intimidating. Many submissions to the Review identified the problems that procedural complexities cause all clients, and especially clients who are marginalized by such factors as illiteracy, disability, or youth. A proceeding under the Landlord and Tenant Act will use arcane language and sophisticated legal concepts that a person may find impossible to navigate alone. In the criminal courts, how can we be sure that an accused person with a learning or mental disability will understand the various stages of the proceeding and the consequences of the decisions he or she makes at every juncture of it? The person whose last resort may be Small Claims Court will be expected to participate in a proceeding that incorporates the complexities and language of the Rules of Civil Procedure: jurisdiction, service, motions, default judgement.
The legal system also affects low-income people in systemic ways that accentuate the need for subsidized legal services. For example, low-income groups are heavily represented in the ranks of the criminal justice system, the mental health system, and the child protection system. How more disadvantaged and more marginalized members of our community are policed is a matter of concern for those involved in the criminal justice system, as are the effects of laws, neutral on their face, on someone who may be uneducated, someone who may be homeless, or someone who may be mentally ill. As many of the submissions to the Review have argued, low-income people need access to legal representation when they come into contact with the kinds of legal regimes that intrude upon people's lives in some of the most extreme ways imaginable: involuntary treatment, incarceration, the apprehension of a child. In sum, the lives of low-income people are regulated in ways that are overarching, complex, intersecting, and intrusive.
The Osler Report warned against drawing inferences from a middle-class standard when we consider what the legal needs of the poor might be. First, low-income people often lack the resources and skills necessary to investigate and follow up on legal entitlements and protections. Second, there are whole areas of law which apply only to low-income people. Third, there are often special legal needs that flow from the circumstances of a person's poverty. The discussion below highlights some of the areas of legal need experienced by low-income people that are examined in detail in Part II of this report. Also explored below are some of the special needs that various low-income communities in Ontario have identified for the Review.
Low-income people are heavily represented in the criminal justice system. Services in the area of criminal law, then, are important for those with low-incomes. Most lay people, and indeed even experienced lawyers whose practices do not include criminal law, do not know how to participate in a criminal proceeding. It is a procedurally and technically complex area of law where the need for legal assistance occurs at the various stages of processing a typical charge.
Many accused persons do not understand the role and duties of the police or the Crown. Access to counsel at early stages of a criminal proceeding can have a significant impact on the ultimate disposition of the case. For example, important issues arise at the time of arrest: Is there a right to arrest? Does the accused have to speak to the police? What are the implications of giving a statement to police when in custody? Can an accused or the property of an accused be searched?
If the police or the Crown declines to release the accused on or after arrest, a bail hearing will ensue. Representation can play a significant role in an person's ability to secure release. For example, counsel will ensure that the factors relevant for bail will be put before the court for its consideration. The importance of bail cannot be overstated. Release on bail allows an accused the opportunity to better prepare for the next stages of the proceeding. It also reduces the chance of accused persons entering an inappropriate guilty plea with serious consequences for them. As many submissions to the Review have indicated, pleading guilty to "get it over with" is an increasingly common phenomenon as many more accused are unable to secure legal representation to assist them in the bail process.
Criminal matters often get more complicated as they proceed, and unrepresented accused are in a difficult position when it comes to dealing with the Crown. For example, all criminal matters involve the mandatory full disclosure of the evidence against the accused to the accused or to his or her agent. Such disclosure may be difficult to secure. Further, on the basis on this disclosure, parties may want to negotiate a plea to a lesser included offence. Without experience in the criminal justice system, an accused will simply not know what this means or will not be able to understand the consequences that flow from such a decision. Many criminal matters involve an election by either the Crown or the accused. This will determine how the matter is to be tried. Accused persons need advice about this, and about how it relates to the plea that they want to enter.
Criminal proceedings often involve pre-trials and trials. They are about evidence. They are about legal burdens of proof and evidentiary burdens of proof, and the difference and relation between them. These are very sophisticated legal concepts. How is a witness called? When is a witness called? Who can be a witness? How is a witness examined? What should be entered as an exhibit? How is an exhibit entered? What are the defences that an accused can raise? What are the implications of the accused's testifying in his or her own defence? What are the strengths of the Crown's case and what are the weaknesses?
The consequences of a conviction can be quite severe, including the loss of liberty and other serious sanctions. Sentencing becomes a important issue at the end of the process if an accused is ultimately convicted. Legal representation will ensure that relevant factors and evidence will be put before the court. This can make a significant difference to the ultimate penalty imposed. For persons held within correctional institutions, needs for legal representation have also been identified. In the submission to the Review from the Correctional Law Project of Queen's University, these further needs for legal representation include proceedings involving facility discipline, inmate appeals, and parole board hearings.
The effect of the recent funding cuts to legal aid in Ontario has been to increase the number of unrepresented accused persons in our criminal courts. Many submissions to the Review were critical of this development. As the Ontario Judges Association pointed out in their submission to the Review, to expect an accused to conduct his or her own case is "manifestly unfair". Legal aid is vitally important to maintaining the integrity of the criminal justice system, in part because, according to the Ontario Judges Association, it brings some balance between the resources of the Crown and those of the defence. As one lawyer argued in his submission to the Review, the failure to properly fund the work of the criminal bar can result only in more Marshalls, Morins, or Milgaards, which cost the system in both financial and moral terms.
Marriage or family breakdown is a common social occurrence that crosses all religious, ethnic, and class boundaries. For low-income people, however, family breakdown is often accompanied by other problems that have a legal component: housing, income maintenance, or immigration sponsorship. More generally, family law regulates a host of relations, and it cannot be separated from the larger social problems of child poverty, domestic violence, or womenís general economic disadvantage. Nor is family law an exclusively private matter, because the state can play a significant role in family law proceedings.
In the area of family law, what issues for low-income people arise? In contrast to a criminal proceeding, this is a more difficult question to answer. First, family law matters are often lengthy and unpredictable. Second, there are a variety of ways in which persons could find themselves confronted with a family law matter-in part, because of the multi-party nature of the proceedings. For example, a father/husband/common-law partner, mother/wife/common-law partner, or same-sex partner/mother/father may litigate interests that could include applications for support, access, or custody. Children, the state, and others who stand in parenting roles, such as grandparents, also have standing to participate in many family law proceedings. Further, changes to the law or changes in circumstance can cause the parties to revisit old arrangements. In some cases, family law litigation extends over decades.
Many factors make family law litigation complex and confusing. First, a collection of statutes regulate the area of family law, including the Family Law Act, the Children's Law Reform Act, the Child and Family Services Act, the Hague Convention, the Reciprocal Enforcement of Support Orders Act, and the Charter of Rights and Freedoms. Second, family law litigation is paper-intensive. The ability to be able to express oneself in writing and to understand and organize a multitude of legal documents is a necessary pre-requisite to being able to participate in any family law proceeding. Third, family law proceedings can be separated into different court systems. Issues of support or custody can be dealt with in the Provincial Court. Divorce and property issues will be dealt with in the Ontario Court, General Division. Unified Family Courts will have jurisdiction over all family matters in the few areas of the province that have them. The issue of which court has jurisdiction is a complicating factor in any family law proceeding. Fourth, the law makes distinctions among adoptive, social, and blood relationships, and among persons who are married, persons who live together, and persons who have children together.
The family law area covers matters such as separation and divorce, and the related issues of property division; child, parental, or spousal support; and custody or access. As the Ontario Family Law Judges Association point out in their submission to the Review, the state initiates as much as 50 per cent of all litigation in matters that include child support applications and child protection proceedings. Family law also intersects with other areas of law such as estates, tax, criminal, income-maintenance, and immigration. Besides their great complexity and their significant, life-altering consequences, family law matters often involve volatile, vulnerable, or frightened litigants who find proceedings especially difficult to navigate.
In family law, many matters are settled with interim motions. To initiate a motion, a party will have to prepare many documents. These may include applications that address support, custody, property division, or the exclusive possession of the matrimonial home. Many legal questions follow from these categories. What is the matrimonial home? What is family property? How is property like a Canada Pension to be valued and divided? To what kind of support may an applicant be entitled? Does the applicant want a periodic or lump-sum support award? What is the tax treatment of a support order? How will support affect an entitlement to social assistance? What is joint custody?
Applications will be accompanied by Notices of Motion and, often, detailed financial statements. Sworn affidavits will set out the facts on which the matter will be decided. Notice must be given to the other side, and this must conform to the strict requirements of service set out in The Rules of Civil Procedure. Counter-applications from the respondent may then be filed before a court date is set.
If a party is dissatisfied with the judgement of the motions court, a trial may be scheduled. Parties then must organize evidence and the case law on which to build their arguments. Many of the same complexities typical of criminal trials exist in a family law trial. What are the rules of evidence? What is the burden of proof? Who should be a witness? How is a witness called? How is a witness examined? What should be entered as an exhibit? How do you enter an exhibit? What is the legislation and case law on which you rely? Where do you find them? How are they organized? Further, the issue of settlement must be explored, but proceeding in this exercise without representation is problematic.
The state can initiate family law proceedings. For example, many child support applications are brought in the names of social assistance recipients. This, in turn, can give rise to a custody or access application on the part of a respondent. The recipient (usually a mother) may then be required to challenge this, especially if there has been a history of physical, psychological, or sexual abuse by the respondent. Another way the state involves itself in family law issues may be with respect to allegations of neglect or abuse reported to a child protection agency. In these cases, the state, and often the child, will be represented. Parents, too, need representation in these investigations and proceedings in order to provide them with information, protect their rights, and argue their interests.
The low-income family that experiences family breakdown can have a multitude of legal problems that require a variety of legal services. For example, a family may not have the financial resources to maintain separate residences, which can create difficulties with respect to a family benefit entitlement. Women can be criminally prosecuted for social assistance overpayments when they have relationships with men, even though these men do not appear to conform to any commonly understood definitions of "spouse", "father", or "husband". Sole-support mothers may experience discrimination in housing because of their family status or the source of their income. The spectre of domestic violence or sexual assault may create needs for the intervention of the criminal law, restraining orders or supervised access. In the area of family law, legal needs are wide-ranging, and sometimes desperate.
CIVIL AND ADMINISTRATIVE LAW
Many of the areas of law subsumed by the term "poverty law" involve the practice of civil or administrative law. In their submission to the Review, the Workers' Compensation Appeals Tribunal wrote that "the validity and importance of legal aid funding is nowhere more apparent than in the workings of the administrative justice system," where issues in administrative law "provide or enforce benefits or legal rights or interests that are often of the most vital importance in individual people's lives, and many of these people live in poverty." This point is also emphasized by the National Council of Welfare when they argue, in Legal Aid and the Poor, that low-income people have a much greater need for civil law services than do people with average incomes.
As mentioned above, many Ontarians move in and out of poverty as their employment circumstances change. According to a study by the Economic Council of Canada, 27 percent of working-aged Canadians who are poor in any one year escape the condition the next. Administrative schemes such as Employment Insurance, Welfare, Workers' Compensation, and the Canada Pension Plan (CPP) play a significant role in assisting people when they leave the workforce on either a temporary or a more prolonged basis. The provision of legal services, information, and assistance in these areas is very important as it ensures that people understand their rights, entitlements, and obligations. For example, a person may need legal assistance when he or she lacks the necessary original documentation to make an application for Old Age Security (OAS). A widow may need information about limitation periods when she applies for a survivor's benefit under the CPP. An unemployed person may need assistance navigating the complicated procedures for entitlement, documentation, and reporting that are part of the Employment Insurance scheme.
In the more general realm of civil law, many submissions to the Review continue to reflect the observations made by the Osler Report with respect to the impact that civil law has on the lives of those with low-incomes: although legislation dealing with consumer rights, the relationship of landlord and tenant, social benefits, economic and other anti-discrimination rules, immigration matters, civil rights, and workersí compensation "is almost invariably expressed in general terms, ... a very high proportion of it affects poor people more directly and intrinsically than a person of means or affluence".
For example, many middle-class people will move from one apartment to another when they experience difficulties with their landlord. A low-income person will often not have this choice and will need to rely on the provisions of the Landlord and Tenant Act to assert his or her rights. In the area of employment termination, a low-income person must rely on the changing provisions of the Employment Standards Act to seek a remedy, whereas a middle-class person is in a much better position to negotiate a proper severance package. In the case of medical malpractice or traffic accidents, low-income people usually will not have a relationship with an insurance company who may advocate on their behalf to improve the terms of a settlement.
SPECIAL LEGAL NEEDS
The problems of poverty are shared by everyone who is poor, but some low-income groups experience additional barriers that contribute to even more hardship than their poverty would otherwise cause. We are not proposing to list factors or characteristics that represent the only barriers that people encounter in their struggles for equality and justice. That list would be long, complex, and intersecting. What we do want to do is use some of the information provided by the various background papers and submissions to discuss some of the particular needs for legal services experienced by particular communities of low-income people in Ontario.
For example, two background papers prepared for the Review canvass the needs for legal services for Aboriginal communities across Ontario. In the North, urgent needs exist for appropriate translation services because most people do not have English as a first language. Communities also need improvements in local court administration and increased availability of legal services. More fundamentally, there exist the problems of having a justice system imposed on people for whom it is not culturally relevant, and service providers who do not have a sufficient understanding of Aboriginal culture.
As well, Aboriginal communities have particular legal needs that flow from both the Indian Act and the Constitution Act relating to status, land, economic development, taxation, and treaty rights. There is also a need for legal assistance in the areas of law that govern hunting and fishing regulations.
In a background paper prepared for the Review by the Advocacy Resource Centre for the Handicapped, criminal justice, involuntary committal, and substitute decision-making were identified as legal areas of particular significance to persons with disabilities.
For example, in the area of civil law, people with mental disabilities face many situations in which they may lose the right to make their own decisions about fundamental aspects of their life, and, further, may need legal assistance to get access to their own financial resources in order to pay for representation. In the area of criminal law, persons with mental disabilities may be found not criminally responsible and held in custody, notwithstanding the nature of the offence. People with mental and physical disabilities also require advocates with particular legal, social, and communication skills.
Many elderly Ontarians are disabled or experience some form of physical or mental limitation. Many live in health care facilities or institutions. Legal issues of importance identified by organizations such as the Family Services Association of Metropolitan Toronto and the Advocacy Centre for the Elderly relate to these circumstances, and include human rights, powers of attorney, wills and estates, and issues relating to decision-making. Further, many seniors are dependent on services provided by large bureaucracies that may not be easily accessible to them.
Despite being guaranteed access to the courts in French with the amending of the Courts of Justice Act in 1984, francophone Ontarians face considerable institutional barriers when trying to access the justice system in French. These include legal aid offices not offering services in French of equal quality to those services offered in English; little or no bilingual signage or materials; the failure to identify French-speaking lawyers on Plan referral lists; and the unavailability of bilingual duty counsel.
While racial and ethnic minorities experience many of the same problems that other groups of low-income Ontarians face, the issue of race and ethnicity often exacerbates their difficulties. For example, issues of discrimination can factor prominently in the areas of housing and employment, or, indeed, the administration of justice itself. As the submission to the Review by the Metro Toronto Chinese & Southeast Asian Legal Clinic argues, many people of colour also experience language or cultural barriers in the legal system for which accommodation needs to be made.
Many submissions to the Review focus on the particular legal problems of women and their needs with respect to legal services. As the National Council of Welfare observed, women's "special problems loom large in the provision of legal aid services". Women, and especially women who are the single heads of households with dependent children, are overrepresented in the ranks of the poor. Legal issues often cluster in the areas of family and civil law, arising as a consequence of both this status and the poverty that accompanies it, and some of the legal difficulties that women face have been outlined in the earlier discussion of family law. Further, many workplace issues of particular importance to women, such as sexual harassment, pay equity and maternity leave, create the need for legal advice and assistance.
A legal aid system should focus on client needs, their range, and their diversity. The legal aid system should monitor the changing landscape of client needs and, more particularly, utilize the clinic system, duty counsel, and Plan administrators as potentially efficient means of doing so. The difficulty of identifying needs and their changing nature speaks to the importance of developing and enhancing the systemic ability to identify and measure them.
- The design of the legal aid system should be based on the assessment of the specific legal needs of low-income Ontarians.
- The design of the legal aid system, while reflecting these needs, should also address the diversity of special needs presented by such groups as ethnic, racial, cultural, and linguistic minorities, persons with disabilities; Aboriginal communities; women; children; youth; and the elderly.
- The legal aid system should enhance its central and local capacity to gather and assess information regarding client needs.
- The legal aid system should more effectively rely upon the clinic system, Plan administrators, and other service providers as a means of systematically gathering information with respect to legal needs.