Section VI: A Framework For Evaluation

I. THE RATIONALES FOR THE IDEAL OF ACCESS TO JUSTICE

In evaluating the current condition and performance of the legal aid system in Ontario and how well-equipped it is to face future challenges in the years ahead, it is obviously important, and indeed necessary, to have a clear focus on some broad normative reference points or benchmarks against which both the performance and potential of the system can be evaluated. This was squarely recognized in the McCamus Report 1 in 1997, and in important background research that the McCamus Task Force commissioned. 2 I here set out briefly what I view as the most compelling normative justifications for an obligation on the state to ensure access to justice.

a) Access to Justice and the Rule of Law

The first and most important rationale for viewing access to justice as an important ideal is based on the close relationship of access to justice to the rule of law. The development of democratic societies has been accompanied by the adoption of the notion of the rule of law - the replacement of rule by arbitrary measures or by unchecked discretion with rule by law. While the content of the rule of law has been subject to much debate over the years, 3 even minimalist conceptions of the rule of law espouse as central the notions of "natural justice" or due process as these concepts are widely understood. If the rule of law is considered to be based on laws that are knowable and consistently enforced such that individuals are able to avail themselves of the law, then individuals must have the tools to access the systems that administer those laws. Thomas Hobbes argued that the rule of law must satisfy an obligation which Professor David Dyzenhaus has called the "publicity condition". This means that individuals, in committing their obedience to the sovereign's rule, are promised the protections and benefits of law. Dyzenhaus argues that the publicity condition is not so much an external limit on the sovereign's legal power, but what the sovereign has to do in order to exercise power through law. Dyzenhaus argues further that part of the obligation that attaches to the rule of law, especially as that law becomes more complex (as many of our laws have, including criminal law, family law, immigration law, and social assistance law) is for the government to provide the resources so that people can not only know the law, but also gain access to it. This publicity condition obviously does not imply that the state is under an obligation to ensure that every individual has a grasp of its entire set of laws. Actual knowledge of the law is not considered a right under even the most progressive liberal theory, so long as every person has an opportunity to know the law. This means that when individuals are unable to understand the law and its impact and are unable to exercise effectively their rights and responsibilities under the law, the state has an obligation to ensure that they have the resources to do so.

b) Access to Justice and Equal Freedom and Dignity of Individuals

The adversarial system, in allowing parties to represent their own cause, is often associated with the liberal idea of individual autonomy. However, given this prima facie preference for party autonomy, a state that is committed to liberal values will seek to ensure that each party has access to adequate and roughly equal legal representation, especially when they lack sufficient personal resources to ensure this. In a liberal state that did not ensure access to justice and the ability of individuals to adequately represent their cases, the goals of equal freedom and dignity of individuals and equality before the law would be threatened. This conception of access to justice is most compelling in certain contexts, such as when the coercive power of the state is marshalled against individuals (as in criminal law, immigration law, and child protection proceedings in family law). Related to the liberal ideal of equality of freedom and dignity is the liberal value that equal application of the law and respect for diversity of viewpoints in an increasingly pluralistic society may be the major common value shared by a society. Liberal legalism posits that laws made through a pluralistic process should be applied equally to all citizens, and should also respect vital interests of all groups in that society. Without adequate access to justice, individuals may not be able to ensure that their vital interests are respected. Access to justice is therefore a vital aspect of the primary shared value of plurality and, relatedly, equality before the law.

c) Access to Justice and Principles of Equitable Distribution

Where there are redistributive programs governed by the law, access to justice may require that people seeking access to these programs be granted legal assistance to do so. Social welfare and related programs are generally derived from values of distributive justice, and if there is no ability to access the law administering those programs, then distributive justice may not be served. Access to justice in this context requires that those who cannot understand or navigate the law pertaining to social welfare should have legal services provided by the state, otherwise the substantive equality goals of the social welfare programs cannot be realized. Other areas of law that safeguard equitable goals, such as employment law, family law, and anti-discrimination law also create claims on the state to provide legal services. Employment law may ensure, especially to the lowest wage earners, access to gainful employment. Family law may ensure the well-being of women and dependent children. Anti-discrimination law ensures that individuals are not denied rights on account of ascriptive characteristics.

d) Access to Justice, the Rule of Law and Economic Prosperity

While perhaps less commonly recognized in historical discussions of access to justice, enhancing access to justice and the rule of law is now widely recognized as having an important connection with economic prosperity. The ideals of access to justice and the rule of law encompass process values such as a) transparency in lawmaking and adjudicative functions; b) predictability: laws, once enacted or adopted, will be enforced in a predictable and consistent fashion; c) stability: laws that are intended or are likely to induce major reliance interests (including those relating to protection of property rights and enforcement of contracts) are not subject to frequent, convulsive and sudden changes; and d) enforceability: laws that are adopted are effectively enforced by government and/or effectively enforceable through the courts or other agencies of the state by private parties. These ideals also encompass institutional values that bear on the major classes of legal institutions involved in the broader justice system, such as appropriate forms of independence and accountability and a broadly shared sense of public legitimacy.

All these values affect important features of the economic environment such that, all other things being equal, societies that are peaceful, orderly, and law-abiding are much more likely to be a magnet for human talent and to enjoy high levels of investment and economic growth relative to societies that lack all or some of these procedural and institutional values. Importantly, as has now been empirically validated in many societies, a large part of the reason why people obey the laws (assuming that they are not inherently unjust in the first instance) is a sense that whether they agree with the outcomes in particular cases or not, they can feel confident that fair processes have been employed in investigating and adjudicating their legal rights and responsibilities. 4 Fair processes centrally implicate the access to justice ideal.

As these rationales for promoting the ideals of access to justice and the rule of law may seem abstract and distant from the daily concerns of average citizens in Ontario, it is perhaps helpful to concretize their importance by contrasting societies that place a high value on vindicating the values implicit in the access to justice and rule of law ideals with those societies that, for whatever set of historical or political reasons, do not. The increasing inequalities between developed and developing countries have rightly attracted increasing concern amongst scholars, public policy-makers, and international institutions in the post-war years, particularly over the past decade, where these inequalities, if anything, have become more sharply accentuated. In a widely celebrated book by Nobel Laureate Amartya Sen, Development as Freedom (1999), Sen argues that freedoms are not only the primary ends of development but are also amongst its principal means. Sen broadly conceives freedoms to include 1) political freedoms; 2) economic facilities; 3) social opportunities; 4) transparency guarantees; and 5) protective security, and their respective roles in the promotion of the overall freedoms of people to lead the kind of lives they have reason to value. In the view of Development as Freedom, the freedoms link with each other and with the ends of enhancement of human freedom in general by focusing on individual capabilities on the one hand and individual opportunities on the other.

From the perspective of Development as Freedom (which has become enormously influential in development circles and has now been translated into more than 30 languages), countries that routinely deny or fail to protect basic civil and political liberties and the other freedoms identified by Sen, whatever their performance in promoting economic growth, will fall short in any assessment of their state of development. It will be obvious from this perspective that promoting the ideals of access to justice and the rule of law are central ingredients in promoting the concept of development as freedom. 5 Sadly, on many measures relating to the rule of law and civil and political freedoms, many developing countries fall woefully short of the ideal.

Beyond debates about the ends of development, another striking feature of the debates about development in the past decade or so is an increasingly sharp focus on the importance of institutions to development (however development is conceived). This focus is often captured in the mantra "institutions matter" or "governance matters". For example, the World Bank's Governance Project involves compiling a large number of subjective measures of institutional quality - meaning data obtained from either polls of country experts or surveys of residents (now almost 200 countries) - and grouping them into six clusters: voice and accountability, political stability, government effectiveness, regulatory quality, rule of law, and control of corruption. The authors of the World Bank's Governance Studies have created indices that measure institutional quality along each of these dimensions as well as a composite governance index designed to measure the overall quality of governance in a society. They then regress three measures of development - per capita GDP, infant mortality, and adult literacy - on these indices and find strong correlations (indeed, strong causal relationships) between each of their sub-indices of institutional quality, including the rule of law, as well as a composite governance index, and their measures of development. In a recent iteration of this work, the authors report:

The effects of improved governance on income in the long run are found to be very large, with an estimated 400 percent improvement in per capita income associated with an improvement in governance by one standard deviation, and similar improvements in reducing child mortality and illiteracy. To illustrate, an improvement in the rule of law by one standard deviation from the current levels in Ukraine to those "middling" levels prevailing in South Africa would lead to a fourfold increase in per capita income in the long run. A larger increase in the quality of rule of law (by two standard deviations) in Ukraine (or in other countries in the former Soviet Union), to the much higher level in Slovenia or Spain, would further multiply this income per capita increase. 6

Drawing on the World Bank data, Rodrik, Subramanian and Trebbi, in a recent paper, 7 estimate the respective contributions of institutions, geography, and international trade in determining income levels around the world. The authors find that the quality of institutions "trumps" everything else. In their study, the authors use a number of elements of institutional quality that capture the protection afforded to property rights as well as the strength of the rule of law. To convey a flavour of the striking nature of their findings, the authors find that an increase in institutional difference between measured institutional quality in Bolivia and South Korea produces a two log point rise in per capita incomes, or a 6.4-fold difference - which, not coincidentally, is also roughly the income difference between the two countries.

In a more recent study by the World Bank, Where is the Wealth of Nations?: Measuring Capital for the 21st Century (2006), the World Bank measures the wealth of countries in terms of natural capital (land and natural resources), produced capital (machinery, equipment, etc.), and intangible capital (e.g., human capital and the value of institutions). Once one takes into account all of the world's natural resources and produced capital, 80 percent of the wealth of rich countries and 60 per cent of the wealth of poor countries is of this intangible type. Strikingly, the rule of law explains nearly 60 per cent of the variation in the residual category of intangible capital, while human capital explains another 35 per cent. The study's conclusion is salutary: "Rich countries are largely rich because of the skills of their populations and the quality of the institutions supporting the economic activity." In other words, the rule of law may be our most valuable intangible economic asset. But because it is intangible, it is largely invisible and thus at chronic risk of being undervalued and under-attended.

While this discussion of the salience of the ideals of access to justice and the rule of law to developed and developing countries respectively may seem orthogonal to my assessment of the state of commitment to the access to justice and rule of law ideals in Ontario today, it leads to a very simple point: it is easy for societies such as ours that over centuries have gradually strengthened their commitment to these ideals and made manifest their commitment in tangible ways through various public policies, to take that commitment and these policies for granted as simply a background endowment that takes care of itself. In my view, taking a longer-term perspective, this kind of complacency is likely to have serious consequences - both in terms of our collective commitment to the various freedoms that access to justice and the rule of law protect and to long-term economic prosperity. There is no basis for such complacency. The United Way, in an extensive recent study focused on Toronto, Losing Ground, documents the alarming increase in levels of poverty among different segments of the citizens of Toronto (especially single-parent families). The Government of Ontario, in its November 29th, 2007, Throne Speech, commendably committed itself to a poverty agenda to address these trends. The core mandate of the legal aid system of Ontario is to provide legal assistance to some of the most disadvantaged groups in our society: aboriginal Canadians, racial minorities, recent immigrants, single mothers, abused spouses and dependent children, and individuals with physical and mental disabilities. As former-Chief Justice Roy McMurtry of the Ontario Court of Appeal stated in his opening of the courts for 2007:

Legal aid is perhaps the single most important mechanism we have to turn the dream of equal rights into a reality. Indeed, our laws and freedoms will only be as strong as the protection that they afford to the most vulnerable members of our community.

A growing segment of Ontario society that is economically, socially, and politically marginalized and alienated from the mainstream of economic, social, and political life in the province and who view the law and its legal institutions and processes as something that is mainly used against them and not as one of society's most precious shared assets are likely increasingly to view the ideals of access to justice and the rule of law as empty promises that challenge their allegiance to the society and its institutions in ways that are likely in the long-run to impoverish all of Ontario's citizens who are committed to a civilized, compassionate, and prosperous society.

It is in this vein that I proceed to identify some disturbing trends that if extended into the future are likely to undermine, or at least compromise, our collective commitment to these ideals.

II. ASSESSING THE STATE OF THE COMMITMENT TO ACCESS TO JUSTICE IN ONTARIO

In the light of the important normative bases for promoting the related ideals of access to justice and the rule of law in Ontario, I attempt a provisional and general evaluation of the state of that commitment to date and its sustainability going forward.

In many respects, the legal aid system in Ontario, in all its dimensions, is a social program of which Ontario citizens can be proud. For the year 2006-07, almost one and a quarter million low-income Ontarians were assisted through various programs sponsored by Legal Aid Ontario, as depicted in summary form in the following table:

Summary of Legal Aid Services - 2006-07
Clinic Assists (Legal advice/brief services)130,310
Staff and Per Diem Duty Counsel Clients Assisted764,675
Certificates issued109,101
Community Clinic Case Files Opened17,628
Telephone Duty Counsel Hotline Clients Assisted53,223
Clinic Referrals - People assisted48,293
Total Number of Low-Income Ontarians Assisted1,123,230

The Ontario legal aid system is the envy of most other provinces in Canada and many jurisdictions beyond, as attested by the regular stream of visiting delegations to LAO from these jurisdictions to study and learn from its experience.

However, this said, a substantial measure of satisfaction in what has been achieved should not become a source of complacency as to the substantial challenges that the system faces in the future. In important respects, the system has never fully recovered from the draconian cuts that were imposed on it in the first part of the 1990s (briefly discussed in Section II above and in more detail in the McCamus Task Force Report, Chapter 2). These cuts entailed a capping of the overall provincial and federal allocations to the system, a reduction by half (from about 200,000 to 100,00) in the certificates issued, a significant reduction in the maximum hours allowable under certificates for various legal proceedings, and a 22 per cent cut in financial eligibility criteria for applicants for assistance. The financial eligibility criteria for legal aid certificates have not been adjusted since the 22 per cent reduction in 1996.

In the ten years that have elapsed since 1996, inflation has eroded the standard allowances by a further 23 per cent - a 45 per cent cut in real terms from the pre-1996 criteria - rendering the eligibility criteria seriously out of step with current cost of living levels and unrelated to any overarching conception of basic needs or a more general and coherent conception of poverty to which various social programs (including legal aid) might be anchored.

The following table shows current eligibility criteria and the criteria that would prevail if inflation adjusted from 1996 (but not restoring the 1996 22 per cent cuts):

FAMILY SIZECurrent LAO Net Annual Income Guideline (Based on 1996 Regulation)1996 Financial Eligibility Guidelines Adjusted for Inflation (2007)
1$13,068$16,316
2$21,852$27,284
3$25,440$31,764
4$29,352$36,649
5+$33,264$41,533

The following table compares OLAP/LAO revenue for 1995-96 with 2006-07, showing a modest increase in nominal terms, but a declining or at best flat federal contribution in nominal terms (and recognizing that a significant and commendable commitment by the provincial government in its 2007 budget to provide an additional $51 million over the next three years is not reflected in these figures):

LAO REVENUES (000's)1995-962006-07
Provincial Government192,105218,810
Federal Government59,70050,700
LFO19,99051,532
Law Society6000
Clients14,05011,657
Judgments, Costs and Settlements2,997407
Misc.5081,358
Application Fees581
Total295,931334,464

Crucially, on a per capita basis funding for legal aid in Ontario has declined by 9 per cent in real (inflation-adjusted) terms from 1996 to 2006 (from $30.76 to $27.77). In addition, as I explore in more detail in a later section of this Report, the hourly tariff chargeable under legal aid certificates, has been increased only modestly over the past decade and is now seriously out of line with any relevant market reference points and with cost of living indices over a longer time period. This has led to a significant decline-16 per cent between 1999-00 and 2006-07-in the number of lawyers participating in the certificate system, and a staggering 29 per cent fewer family lawyers.

Beyond the certificate system, I received numerous and well-documented briefs indicating that the modest salaries presently paid to clinic lawyers and duty counsel have created increasingly serious problems in recruitment and retention of suitably qualified and experienced staff.

By way of perspective, it is useful to compare rates of increase in per capita expenditures on legal aid services over the past decade with per capita expenditures on health care and public education (primary, secondary, and post-secondary) in Ontario over the same period:

PER CAPITA EXPENDITURE CHANGES IN CONSTANT 2007 DOLLARS 8
HealthEducationLegal Aid
19962,054.901,128.4330.76
20062,730.051,356.3827.77
% change+33%+20%-9.7%

In short, on the demand side, a sharply diminishing percentage of the population qualify for legal aid, and on the supply side, a sharply diminishing number of lawyers are prepared to provide legal aid services.

These trends have evolved in Ontario over the past decade and a half through successive governments of all political persuasions and through good economic times and bad which suggests a major and not transitory political challenge in putting the legal aid system on a more fiscally adequate and sustainable basis and to reverse what could become a vicious downward spiral for the system in the longer term. As the level of financial support has stagnated or declined in real terms, a major fiscal adjustment is required to bring financial eligibility criteria on the demand side into some realistic and ongoing relationship with a basic needs or poverty test, and to bring remuneration of legal service providers, on certificates or on salary, into some tenable relationship with, at a minimum, changes in the cost of living and ideally with various other market reference points in order to ensure the continuing participation of an adequate number of qualified lawyers prepared to undertake legal aid work. Once the system is brought into some reasonable kind of equilibrium, the ensuing challenge is to institutionalize a system where adjustments to eligibility criteria on the demand side and to certificate tariff rates and salaries on the supply side are made on a regular, rational, and incremental basis, rather than, as at present, on an ad hoc and episodic basis, often in response to crises of some kind (e.g., work stoppages by certificate lawyers) against unarticulated criteria and pursuant to a murky decision process that implicates in poorly defined ways LAO, the Ministry of the Attorney General, and the Provincial Cabinet. In this way, future governments will not face the formidable political and fiscal challenge of dramatic interventions to save the system from implosion.

In contemplating the feasibility of an enhanced commitment to the ideal of access of justice and the rule of law in Ontario, it is useful to situate the challenges that must be confronted in a broader political economy context. Legal aid, in contrast to major universal programs, such as health care and education, provides services primarily to low-income Ontarians on a means-tested basis. Under the increasingly unrealistic financial eligibility criteria noted above, the 2006 Annual Report of LAO reports that the certificate refusal rate was more than 22 per cent in 2005-06 (an approximate 26 per cent increase from the previous year) and that the highest number of refusals occurred in the area of family law, which had a nearly 30 per cent refusal rate. Numerous submissions to me identified the increasingly serious problem of unrepresented litigants attempting to navigate on their own the complexities of family law in the province. Civil claims more generally are now largely excluded from the purview of the system. In short, the legal aid system, despite the important normative rationales that underpin it, is not a system in which most middle class citizens of Ontario feel they have a material stake. As a percentage of the population, fewer and fewer citizens qualify for legal aid, and many working poor and lower middle-income citizens of Ontario confront a system which they cannot access and which they are expected to support through their tax dollars even though they themselves face major financial problems in accessing the justice system (as witnessed most dramatically in the family law area, but also in various areas of civil litigation). 9 As Chief Justice Beverly McLachlan of the Supreme Court of Canada stated in an address to the Council of the Canadian Bar Association, August 11, 2007:

The cost of legal services limits access to justice for many Canadians. The wealthy, and large corporations who have the means to pay, have access to justice. So do the very poor, who, despite its deficiencies in some areas, have access to legal aid, at least for serious criminal charges where they face the possibility of imprisonment. Middle income Canadians are hard hit, and often left with the very difficult choice that if they want access to justice, they must put a second mortgage on their home, or use funds set aside for a child's education or for retirement. The price of justice should not be so dear.

At present, it is too easy to caricature the legal aid system as being primarily devoted to providing criminal defense services to poor people - poor people who are presumptively bad, and are probably poor because they are bad - without sufficiently recognizing that adequate criminal defense services are a bulwark against arbitrary and oppressive behaviour by the state or its agents that are part of the daily life of citizens in many other countries (as I have noted above) and as a safeguard against wrongfully convicted accused (which even in Canada has been a tragic but too frequent occurrence). It also reflects an insufficient appreciation of the fact that criminal defense services account for only about a third of the legal aid budget, with the other two-thirds being devoted to family law, immigration law, and poverty law (which includes access to various social benefits, employment law, housing law, anti-discrimination law, etc.).

This leads me to suggest that both LAO and the Government of Ontario, through the Ministry of the Attorney General, need to accord a high priority to rendering the legal aid system more salient to middle-class citizens of Ontario (where, after all, most of the taxable capacity of the province resides). It is striking in this respect that the one jurisdiction in the world that spends dramatically more per capita on legal aid services than Ontario is the U.K., where annual expenditures on legal aid services are currently running at about 77 dollars (Canadian) per capita, compared to 27 dollars per capita in Ontario, almost three times as large. 10 This level of support has been sustained over time through governments of different political persuasions, and the level of political support is in significant part, in my view, attributable to the fact that many of the services provided by the U.K. legal aid system are not means-tested, and where they are means-tested, are means tested against much more generous criteria. For example, as I describe more fully in the next section, in the U.K. a network of more than 500 Citizens' Advice Bureaus, partly supported by the U.K. Legal Services Commission and partly by local charities and donors, operating under a national associational umbrella, provide a wide array of advice and assistance to citizens in their communities, often using volunteers and paralegal staff and a network of professionals, including lawyers, to whom referrals can be made on a non-means tested basis. The CAB service is known by 96 per cent of the public, and 41 per cent of the general public has used the service at some point in their lives.

It is true that in Ontario, some forms of summary assistance are provided without means testing, such as duty counsel services in the criminal courts and in the family courts; Family Law Information Centres provide some forms of advice and assistance on a non-means tested basis; various web sites operated by LAO or clinics provide public legal education materials; the Law Society of Upper Canada operates a telephone hotline service; and Pro Bono Law Ontario has embarked upon an impressive set of pilot programs utilizing volunteer lawyers to improve access to justice in some small claims courts and the Superior Court in Toronto against relaxed eligibility criteria. Some clinics also provide summary advice on a non-means tested basis. However, all of these initiatives are ad hoc, poorly integrated, not aggressively promoted to the public, and cannot reasonably be viewed as constituting a systematic effort to enhancing access to justice for the working poor, lower middle-income, and middle-class citizens of Ontario more generally. Without engaging the latter more fully as beneficiaries of the system, it is probably unrealistic to expect them to be engaged, at least to a greater extent than at present, as financial underwriters of the system.

While I am not proposing the transplantation of the U.K.'s Citizens' Advice Bureaus to Ontario, as I develop in more detail in the next section of my report, more systematic efforts could be made (and resources provided) to the clinic system to provide summary advice and assistance on a wide range of matters to citizens in their communities on a non-means tested (or at the very least much more generously means-tested) basis. More comprehensive, sophisticated, and accessible electronic information systems, accessible to all citizens of the province, should be developed. More sophisticated telephone hotline services, available to all citizens of the province, by way of analogy with the highly successful Telehealth service in the Ontario health care sector, should be developed. Another productive line of inquiry should focus on the promotion of private insurance markets for legal expense coverage, especially in family law and civil matters - in the U.K. such coverage is available at modest additional cost with most home-owners insurance policies and in Sweden such coverage is mandatory. A yet further strategy for rendering the legal aid system salient to the middle-class in Ontario is as a decentralized system of intelligence about dysfunctions in the broader justice system, which if redressed will benefit not only legal aid recipients but all citizens of the province that engage with these aspects of the justice system. 11

I believe that all these initiatives (and probably many more than imagination and comparative experience might suggest) should be explored (as I develop more fully in the next section of the report) so as to broaden dramatically the range of citizens who are direct beneficiaries of the legal aid system and who, hence, are likely to be willing financial contributors, as taxpayers, to its enhancement. In thinking through initiatives of this kind, I believe it is time that a kind of on-off switch mentality to legal aid services is abandoned. At present, on the demand side, for qualifying individuals, a full suite of legal services for particular legal problems is made available. On the supply side, more than 60 per cent of LAO's budget is accounted for through the provision of formal legal representation in court or tribunal proceedings by lawyers. One could readily imagine a system that has many fewer discontinuities in it - a system where some range of services (various forms of summary assistance) is provided broadly to most citizens of Ontario, a further range of services is provided against generous means-tested criteria, and a yet further range of services is subject to a more strict, but realistic, means test. In other words, the system should not be predicated, to nearly the extent that it currently is, on an all-or-nothing basis.

In pursuing this line of policy development, it is important to link it with another theme, which again I develop more fully in the next section of this report - greater integration of legal aid services. As empirical studies in various jurisdictions now amply demonstrate, individuals' problems often come in clusters, where one problem triggers a cascade of other problems. The initial problem may be a legal problem, but without early intervention this problem may trigger subsequent problems, legal or otherwise, such as greater demands on other social welfare programs, social housing programs, physical or mental health programs, etc. Early intervention is in fact cost-conserving from a broader fiscal perspective in that it preempts these cascades. But more than this, it calls for a more holistic or integrated institutional response where individuals with clusters of interrelated problems are not subject to endless referral processes that are tied to particular institutions (a silo approach) rather than particular individuals' needs and to referral fatigue that leaves many problems unresolved. In this respect, a reconceptualization and broadening of the mandate of the clinic system may be an important first step along the path to greater integration in the provision of legal aid and related social services.

It might, of course, be argued that striking out in these directions would entail an expansion of the scope of the legal aid system in Ontario and hence exacerbate the existing financial frailties of the system that I have described above. However, I believe that this paradox is more apparent than real. For middle-class citizens of Ontario to support the legal aid system with anything approaching the enthusiasm with which they support public health care and public education in the province, their participation in this system, other than as merely taxpayers who underwrite it, is a sine qua non for its future health.

There is another and more fundamental sense in which the attitudes of the middle-class, both as participants and taxpayers, towards the justice system in general and the legal aid system in particular need to be addressed and responded to. The general body of citizens of Ontario is entitled to assurances that legal aid resources are being expended to facilitate the smoother, more timely, and more effective resolution of disputes, rather than the opposite - underwriting seemingly interminable wars of attrition that may appeal to some lawyers, but to almost nobody else. In other words, the citizens of Ontario are entitled to assurances that legal aid resources are being spent cost-effectively. When they observe criminal trials that go on for months and sometimes years; when they observe that even in relatively mundane criminal matters eight to ten appearances and adjournments before substantive resolution of the matter are routine and not exceptional; when they observe family court proceedings that go on for months and often years, beset by endless procedural and evidentiary motions and adjournments, they have legitimate cause to doubt that legal aid resources that support such processes are being used cost-effectively. Moreover, they have legitimate cause to ask why costly legal aid resources are being used to prop up and sustain underlying dysfunctions in the justice system and in some cases to exacerbate them, rather than deploying those same resources to repair those dysfunctions at their foundations. In their daily economic and social environments, they are expected to adjust to ever more rapid processes of change, and they wonder why the justice system seems largely impervious to similar processes of change but instead, in their perception, resembles some baroque institutional period-piece from a by-gone age. I believe that these attitudes should be taken seriously, because they are largely true. The implications for reform of the legal aid system are that such reforms must be seen as part of a broader project of progressive and incremental reform of the justice system at large.


  1. Chapter 5.
  2. See David Dyzenhaus, Normative Justifications for the Provision of Legal Aid.
  3. See Michael Trebilcock and Ron Daniels, Rule of Law Reform and Development: Charting the Fragile Path of Progress, (Edward Elgar, forthcoming, 2008, chapter 1).
  4. See Tom Tyler, Why People Obey the Law (Yale University Press, 1992).
  5. See Amartya Sen, "What is the Role of Law and Judicial Reform in the Development Process?" World Bank Legal Conference, June 5, 2000.
  6. Daniel Kaufmann, Governance Redux: The Empirical Challenge 14 (World Bank, 2004).
  7. Dani Rodrik, Arvind Subramanian and Francesco Trebbi, "Institutions Rule: The Primacy of Institutions Over Geography and Integration in Economic Development," (2004) 9 J. of Econ. Growth 141..
  8. 1996 and 2006 were used because they were census years, making the population assessment more accurate.
  9. Civil Justice Reform Project: Summary of Findings & Recommendations, November 2007.
  10. The data refer to legal aid spending in England and Wales. Scotland and Northern Ireland have separate legal aid systems.
  11. McCamus Report, chap. 6.

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