VIP Access to Justice: Why state-funded counsel is crucial to our democratic identity.

• Author: Izadi, Melody
• Position: Columns: Criminal Law

Access to justice is always a live issue, no matter how developed a country may be. Luckily, in Canada, our justice system rivals some of the best in the world. However, there is still concern for those who represent themselves in the criminal justice system. After all, criminal matters have a unique way of affecting one's life with grave consequences if convicted: jail sentences, loss of employment, social stigmas or an inability to travel, just to name a few.

It comes as no surprise that, when up against the power of the state (Crown attorneys, police forces, expert witnesses), an accused person's best chance at ensuring a fair trial, resolution agreement, or sentence happens with competent counsel on their side. However, even with the most generous of discounts, retaining counsel can be an impossible financial burden to bear for many people. And so, the concept behind state-funded legal representation is born.

But there's a catch: one has to qualify for state-funded legal representation before one can get it. While that may appear sound in theory--not everyone should qualify for legal aid--the practical reality is that the cut-off for qualifying for legal aid can be frighteningly low.

Legal Aid Ontario boasts two main qualifications for a person to obtain state-funded counsel:

1. the Crown attorney needs to be seeking a jail sentence; and

2. the combined income of the person and their family members must be below a set threshold.

If a single person with no spouse or children makes more than $17,731 gross per year, they will not qualify for legal aid for a non-domestic abuse matter. If a person lives with someone, their combined salaries must be below $31,917 in order for the person to qualify for legal aid.

It is not hard to imagine the obvious gap created here: thousands of people who have a low annual income must either hire a lawyer they cannot afford, or they are forced to represent themselves. What's even more troublesome is that the Ontario government announced a $164 million dollar cut in Legal Aid Ontario's budget earlier this year. The result is that Legal Aid Ontario must reduce the number of certificates for state-funded counsel as well as funding for transcripts of proceedings, expert witnesses, or psychological testing.

The problems that can arise with a self-represented accused were clearly at issue and highlighted in the case of R v Sabir. A trial judge has a heavy duty to protect the rights of a self-represented accused...