McGILL LAW JOURNAL
[Vol. 15
The Ontario Legal Aid Plan
John D. Honsberger*
The Attorney General of Ontario, when he introduced the bill
for the Legal Aid Act, 1966,1 said that it was important and mo-
mentous legislation. The principle speaker for the opposition
in
the debate on the bill said: “I think that there are few members
in this House who will say that it is not an advance step over
anything we have known before, and probably will result in the
Province of Ontario having a system of legal aid as good as any-
thing that exists in the western world”. 2 One Toronto newspaper,
in its enthusiasm, called it “the most advanced social welfare pro-
gramme on the continent since Saskatchewan exploded medicare”.
1. Legal Aid in Ontario Prior to 1967
Prior to 1951, legal aid in Ontario was on an informal basis.
Lawyers in recognition of their duty to society and of the strong
tradition in the profession provided their services freely to needy
persons. Before the war, however, it was becoming apparent that
there was a need, particularly in the larger cities, for a more
organized system of legal aid. One of the methods employed to meet
this need was a plan of “assigned counsel” which developed
in
Toronto. Counsel would volunteer their services and, when required,
they would be assigned to defend indigent persons charged with
serious crimes.
The first statutory legal aid plan in Ontario was contained in
the Law Society Amendment Act, 1951.3 This was also a voluntary
plan. Lawyers contributed their services without remuneration. How-
ever, the government of the Province of Ontario contributed some
$30,000 annually from which legal disbursements were made. The
plan was administered by the Law Society through local directors
and legal aid committees in each of the countries and districts of
the province. In the 16 years of the operation of this plan, some
Q.C., Barrister-at-Law, Raymond S. Honsberger, Toronto.
i Bill 130, 14-15 Eliz. II, S.O. 1966, c. 80.
2 Legislature of Ontario, Debates, 1966, Vol. 3, p. 3858.
315 Geo. VI, S.O. 1951, c. 45.
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THE ONTARIO LEGAL AID PLAN
96,658 persons were represented in the courts through it, while
many more were given advice only.
In addition to the contributions made by the government of
Ontario to this early legal aid plan, the government provided finan-
cial assistance when an indigent was charged with a capital offence.
It paid, for example, a nominal per diem counsel fee, the costs of
the transcript of evidence at the preliminary hearing, the costs of
perfecting an appeal either to the Ontario Court of Appeal or the
Supreme Court of Canada.
In the early 1960’s, it was obvious that the voluntary legal aid
plan was not comprehensive enough to keep up with the real
demand for legal aid within the Province. All who needed legal
aid were not receiving it, and it was quite rightly estimated that
the demand would increase in the future rather than diminish. There
was also a growing conviction that legal aid was an integral part
of the administration of justice, and that access to legal aid should
be a “right” to those without sufficient means, not something in
the nature of charity.
In July of 1963, the Attorney General of Ontario established a
joint committee on legal aid composed of members of the Law
Society of Upper Canada and the civil service of Ontario. Its terms
of reference were in essence, to enquire into and report on the
existing Ontario legal aid plan, and to investigate and report upon
legal aid and public defender schemes in other jurisdictions.
The report of the joint committee was tabled in the Ontario
Legislature in April of 1965. It recommended a comprehensive legal
aid plan administered by the Law Society and subsidized by the
provincial government. In October of 1965, the Attorney-General
requested the Law Society to appoint a committee to propose a plan
to implement the report. This new committee drafted the bill for
the Legal Aid Act, 1966 4 which was enacted by the legislature on
June 28, 1966.
II. The New Ontario Legal Aid Plan
Viscount Jowitt said of the English Legal Aid and Advice Act,
a leap in the dark”.6
1949,r that it was “a bold social experiment –
With the advantage of the experience of legal aid in England and
4 Supra, n. 1.
r, 12-13’4 Geo. VI, c. 51.
6 Hansard, 5th series, Vol. 164, col. 163, House of Lords.
McGILL LAW JOURNAL
[Vol. 15
the work of the Ontario Joint Committee, the Ontario Legal Aid
Plan was by no means the same leap in the dark. It was, however,
an equally bold social experiment, and has become so recognized in
the two years or so that it has been in existence.
The new Plan became operational on the morning of March
29, 1967. On that date, legal aid offices in each county in the
Province were opened and legal aid counsel first appeared in the
criminal courts throughout the province.
The Plan is administered by a Director of Legal Aid appointed
by the Law Society, subject to the approval of the Attorney General.7
The province is divided into 46 legal aid areas which, for the most
part, coincide with the counties and districts of Ontario. In each
area there is an area director who is responsible for maintaining
an area legal aid office, the leases for which are all in the name
of the Law Society. The area director is also responsible for estab-
lishing and maintaining the duty counsel and legal advice panels
for his area.
Legal aid is provided in civil, criminal and quasi-judicial pro-
ceedings. A certificate may also be obtained for advice only. Thus
a legal aid certificate will be issued to a person entitled to legal
aid in respect of any proceeding or proposed proceeding in the
Ontario Supreme Court, a County or District Court, Surrogate Court,
the Exchequer Court of Canada, on proceedings under the Extradi-
tion Act 8 or the Fugitive Offenders Act,9 and where an application
is made for a sentence of preventive detention under Part XXI of
the Criminal Code.
A legal aid certificate may also be issued, subject to the dis-
cretion of the area director, where the applicant is entitled to legal
aid in any summary conviction proceeding if, upon conviction, there
is a likelihood of imprisonment or loss of means of earning a liveli-
hood; in any proceeding in a juvenile, family or division court, or
before a quasi-judicial or administrative board or commission; in
bankruptcy proceedings subsequent to a receiving order or an as-
signment; and generally for drawing documents, negotiating settle-
ments or giving legal advice wherever the subject matter or nature
thereof is properly within the scope of the professional duties of
a barrister and solicitor.
7 A.l employees of the Plan are employees of the Law Society. As of February
1, 19,69, there were 179 employees of the Society engaged in the Legal Aid Plan.
sR.S.C. 1952, c. 322.
9 R.S.C. 1952, c. 127.
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THE ONTARIO LEGAL AID PLAN
A wide range of appeals up to and including an appeal to the
Supreme Court of Canada may also be authorized subject to the
approval of the legal aid committee.
A legal aid committee composed of both lawyers and laymen
representing the community proposed to be served by the area com-
mittee may be appointed by the Law Society. The responsibility of
the area committee, in addition to approving certificates for appeals,
is to hear in the first instance appeals from the area director where
he refuses to issue or cancels a certificate. An appeal may be taken
from the area committee to the Director whose decision is final.
On the provincial level there is an advisory committee on legal
aid. It is composed of judges, lawyers, a person holding a responsi-
ble position in the field of public welfare, and such other persons
as the Attorney General may appoint. The committee is required to
report at least once in every year to the Attorney General on the
operations of the Legal Aid Plan as well as on the annual report
of the Law Society, which the latter is required to make concerning
the statistics, financial and otherwise general information as to the
working of the Legal Aid Act.
An application for legal aid must be referred to a welfare officer
of the Department of Public Welfare, unless the probable cost of
the legal aid required is $60 or less. The welfare officer considers
the income, disposable capital, indebtedness, requirements of per-
sons dependent upon the applicant and any other circumstances he
considers relevant. There is no longer any arbitrary means test such
as used in earlier plans. The only test is “need” and the need is
balanced against the cost of the legal aid required. Once the wel-
fare officer has examined the applicant, he reports to the area
director as to whether the applicant can pay no part, some part
or the whole of the cost of the legal aid applied for, and the sum,
if any, the applicant is able to contribute towards the cost thereof.
The area director may issue a legal aid certificate only when he
has received the report of the welfare officer and only where, in
the opinion of the area director, the issue of a certificate is justified.
It is, however, the area director, not the welfare officer, who makes
the final decision as to who receives legal aid assistance.
Once a person receives a legal aid certificate, he has the right
to choose his own lawyer from among those who are registered on
the different panels. Approximately one-half of the lawyers in On-
tario, representing a broad spectrum of the profession, are on one
or the other, or both the civil and ,criminal aid panels. This com-
McGILL LAW JOURNAL
[Vol. 15
pares with approximately two-thirds of the profession in England
who have volunteered to serve on the panels.
The right of a lawyer to choose his own client is retained. A
lawyer is not obliged to act for a person who presents to him a
certificate. A normal solicitor-client relationship exists between a
legally assisted person and the lawyer of his choice. Except in the
case of Duty Counsel, the court should have no knowledge whether
an accused or a party is receiving legal aid or is paying the entire
cost of the counsel who is appearing on his behalf.
Duty Counsel are assigned by area directors to all provincial,
criminal and family courts in their area. The Duty Counsel are
available to advise a person taken into custody, and before any
appearance to the charge, of his rights and to take steps to protect
those rights as the circumstances require. They attend to such im-
mediate problems as remands, bail applications and guilty pleas.
They also explain to those awaiting trial how they make applica-
tions for a legal aid certificate. The services of a Duty Counsel
are not dependent upon an accused person’s financial position. Gen-
erally speaking, Duty Counsel serve from a roster for a week or
two at a time.
A Duty Counsel is paid on an hourly or per diem basis, whether
he is a Duty Counsel in a court or a civil Duty Counsel who assists
an area director in the operation of the legal aid office. All other
solicitors representing legal aid clients are paid on a tariff arrived
at by taking three-quarters of what a solicitor would ordinarily
charge a client of modest means who had the ability to pay. The
present tariff provides, for example, a counsel fee of $250 per day
for an indictable offence, or in a Supreme Court civil action other
than an uncontested matrimonial action, and $18.75 an hour for
interviews and advice to applicants by solicitors in their offices.
A-11 payments are made from the Legal Aid Fund into which
is paid all moneys appropriated by the Legislature for the Fund,
all costs awarded to recipients of legal aid, and all contributions
made by recipients of legal aid who are required to pay any part
of its cost.
At least once in every fiscal year, the Law Society must submit
an estimate of the sum required to meet the payments out of the
Fund during the next succeeding fiscal year. The moneys are then
paid to the Law Society upon requisition. Once a year, the Provin-
cial auditor must examine and report upon the accounts and financial
transactions of the Fund.
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THE ONTARIO LEGAL AID PLAN
It will be seen that a vital attribute of legal aid in Ontario is
the attempt to maintain the independence of the profession. All
administrative decisions of a professional nature belong to the
Society. On the other hand, decisions such as the extent and kinds
of legal aid which will be provided, and which are in the nature
of political decisions, belong to the government.
I. The Measure of the Success of the Plan
The current provincial budget for legal aid in Ontario is 6.7
million dollars. For the fiscal year ending March 31, 1969, the Plan
was within the budget. The costs of the Plan, for any year, however,
cannot be accurately calculated for perhaps as long as a year after-
wards. It is estimated, for example, that there is a two year time
lag between the issuing of a civil certificate and the payment of
a solicitor’s account.
As of December 31, 1968, when the Plan had been in operation
for twenty-one months, 95,581 applications for legal aid certificates
were received and were granted. In addition, some 120,654 persons
were represented by Duty Counsel. Approximately 86% of all cer-
tificates issued do not require the holder to make any contribution
towards the cost of their legal aid. The remaining 14% are required
to contribute a part of the cost.
The statistics to date indicate that civil actions represent 57%
of all applications. Approximately 20 to 25% of all legal aid certifi-
cates issued relate to divorce actions, and about another 20% relate
to other matrimonial actions, or in other words, about 80 to 90
per cent of all civil legal aid certificates relate to domestic and
matrimonial matters. 0 With the new Divorce Act” there will un-
doubtedly be an increase in civil legal aid certificates. On the
other hand, many of the certificates issued in the first two years
of the Plan represented a backlog in divorce cases which should not
continue. Since the commencement of the Plan, a substantial number
of certificates have been given for proceedings under the Immigration
10 There is a high proportion of domestic and matrimonial cases in most
legal aid systems. In England after the Legal Aid and Advice Act, 1949 came
into effect the percentage was upwards to eighty per cent. It has declined to
about 75%. The Dallas Legal Services Project, which is a part of the Legal
Services Programme of the Department of Economic Opportunity, reported that
40% of its case load was matrimonial cases.
111.6-17 Eliz. II, 1967-68, c. 24.
McGILL LAW JOURNAL
[Vol. 15
Act’ 2 and the Workmen’s Compensation Act, 1 but in much smaller
numbers than those given for divorce and matrimonial proceedings.
About 50% of all legal aid applications for the province are
made in Toronto, at the County of York Legal Aid Office. Thirty
per cent of all these applicants do not receive a certificate because
their legal problems are solved during the initial interview or they
are not financially eligible.
The first stage of the new Plan might be said to have lasted
for about a year. It was a year of maximum effort in making the
plan fully operational. A provincial director and area directors were
recruited; staff were hired, offices opened, panels of lawyers and
area committees were set up, sophisticated systems and procedures
for accounts, records, filing and reporting were created and a
province wide programme for publicizing the Plan was carried out.
There was no attempt to start the Plan off in a small way and then
expand in the light of the experience gained. The complete Plan
functioned from almost the first day of its operation and a complete
range of the services and benefits available under the Plan was
simultaneously provided in every county in the province. The insti-
tution of the Plan and its operation during this first stage was a
remarkable feat of organization marked by no serious or unforseen
difficulties.
During the first year of the Plan, great inroads were made
in the backlog of civil litigation, particularly in the field of domestic
relations, which had resulted from the financial inability of a large
group at the lower levels of the economic scale to resort to the courts.
Apart from the obvious benefits to those who previously could
not afford the services of a lawyer- there have been substantial
benefits accruing to the profession. While the fees .offered are not
generous and no one can expect to get rich on legal aid, the Treasurer
of the Society at the time the Plan was introduced said:
Yet on the other hand, there will be no write-off of bad debts at the end of
the year in respect of legal aid work. If you do the work properly you
get paid for it, and apart from the direct payment that you will receive,
you may find the legal aid client of today will become a good private
client tomorrow, or he may recommend you to others.
Undoubtedly, the over all quality of legal work by the profession
in Ontario has improved since the inception of the Legal Aid Plan.
For example, a number of manuals for legal aid lawyers for use
in appeals and in the Family Court have been prepared by senior
12R.S.C. 1952, c. 145.
13 R.S.O. 19.60, c. 437.
No. 3]
THE ONTARIO LEGAL AID PLAN
members of the Bar for the guidance of junior counsel or solicitors.
Senior counsel acting as senior Duty Counsel regularly give valuable
assistance to the less experienced counsel who are carefully instructed
for appearing in Provincial Courts. In particular, there has been
a noticeable increase in the number of barristers specializing in
criminal law. It is said that 70% of all criminal cases in Ontario
now come under the Legal Aid Plan.
An indirect benefit, which in time might prove to be the most
valuable, is in the field of law reform. Through the Plan, the
government has, for the first time, a substantial financial stake in
the judicial process which hopefully will give to it a greater impetus
for law reform. Family law is a case in point. On the basis of an
annual budget of approximately seven million dollars for legal aid,
and considering that 57% per cent of all legal aid relates to civil
law, of which 80 to 90 per cent is for divorce and matrimonial
actions, the Ontario government has a direct annual financial interest
in the functioning of family law within the province of upwards
of four million dollars. This undoubtedly will influence the govern-
ment when it considers the recent and future reports on family law
by the Ontario Law Reform Commission.
The second stage of the Plan could also be said to have lasted
about a year, and coincided with the second year of the operation
of the plan. This was a period of intense evaluation of the Plan.
The very magnitude of the concept and operations of the Plan not
unnaturally resulted in the necessity to re-examine particular aspects
of it. There have been some complaints about the Plan both from
the public and the profession although these have been remarkably
few. Nevertheless, the Law Society has very noticeably acted with
vigour in examining all complaints and all areas where complaints
might be anticipated, if these areas of concern were not rectified.
The Society is determined, as it has often stated, to insure that
the administration of the Plan will be efficient in every sense, since
it involves public funds.
In July and November of 1968, two, two-day conferences were
held with area directors. At these conferences, the criteria being used
to determine whether a certificate should be issued were examined
and new guidelines were laid down in the light of the experience
in administering the Plan.
Also in July of 1968, a meeting was held of all the Deans of
the Law Schools in Ontario to consider the manner in which student
Legal Aid Societies might be incorporated into the Plan’s operations.
Proposed amendments to the Act and Regulations will ensure that
McGILL LAW JOURNAL
[Vol. 15
student Legal Aid Societies will be able to make a greater contribution
to the Plan.
In December of 1968, more than one hundred amendments to
the Legal Aid Act’ 4 and Regulations were submitted to the Attorney
General and have since been enacted. They, in no way, change the
basic philosophy of the Plan but will facilitate its administration
and, it is hoped, will go a long way in obviating some of the abuses
which have become apparent.
Careful consideration has also been given to the problems relating
to the collection of payments owed by contributory clients. As of
October 31, 1968, the total client commitments outstanding amounted
to $837,000. Of this amount, $331,000 was past due over 30 days.
This is a problem which is not unique to the Ontario Plan. In
England, 650,000 was written off in 1966 for bad debts under
its Plan. This represented 46,000 assessed contributions and 600,000
in costs assessed against non-assisted parties which could not be
collected. The future policy under the Ontario Plan, which takes
into consideration the fact that attempts to collect payments due often
prove more expensive than the amounts owed, has been defined as
follows :
1. every effort is to be made to trace delinquent clients,
2. certificates will be cancelled if a client is in arrears over 30 days, and
in
3. a “delinquent list” will be established. A person who has defaulted
payments will not be entitled to further aid.
The new collection procedures have been in force now for almost
six months. They have resulted in a substantial increase in the
percentage of accounts collected.
Early in 1969, a special meeting was held with the Deputy
Attorney General and senior officials of the Department of Social
and Family Services to discuss, in detail, the procedure, philosophy
and criteria, which the Department has been using to determine
financial eligibility of legal aid applicants. It was agreed to re-define
such factors as disposal
immoveable,
property as they relate to financial need for legal assistance.
liquid assets and
income,
A problem, which is currently giving the Plan some concern, is
the situation where an applicant accused of a serious criminal offence
selects an inexperienced counsel from the panels. This raises the
question whether the right to choose one’s own counsel is in the
interest of the client holding a legal aid certificate. The same problem
exists in other jurisdictions, and with other legal aid and public
14 Bill 12A, assented to June 27th, 1969, L17-18 Eliz. II, S.O. 1068-69.
No. 3]
THE ONTARIO LEGAL AID PLAN
defender systems. The following comment was made in reference to
the Poverty Programme in the United States but is equally applicable
to the Ontario Plan, as it relates to those in the lower levels in the
economic scale:
The ‘right’ to choose ones own attorney constitutes for the poor, a mirage.
Approximately 80 per cent of the recipients of legal assistance in the
neighbourhood law offices have never before consulted with an attorney
for any purpose and have no idea to whom they should turn. For these
people, choosing their own attorney means a game of “eeny, meeny, miny,
mo” with the Yellow pages. Furthermore, once an attorney is selected,
the client is bound to accept what comes his way, for he is not, in any
position to judge the effectiveness of the lawyer’s work. 15
There are at least two approaches which might be taken to make
the choice of a counsel or solicitor more meaningful to the client
holding a legal aid certificate. The present panels which distinguish
between those who have volunteered to work on the civil or criminal
side of legal aid could be further divided to indicate specialists
within these two broad fields. The legal aid applicant might also be
encouraged to ask for a certificate entitling him to advice only.
Where litigation might be necessary, he would have the opportunity
to get to know a lawyer before he had to chose a lawyer to take
his case to trial. This is the present emphasis in the administration
of the English Legal Aid Plan. There is, of course, a limitation in
the usefulness of this approach when dealing with the client needing
legal aid in a criminal matter. As a rule, time is of an essence,
and a quick choice of counsel is necessary.
Certainly, however, it is in the interest of both the client and
the Plan for a client entitled to legal assistance to be encouraged
to consult solicitors at an early stage in their problems through a
certificate for advice. The statistics indicate that there has not
been a sufficient use of this type of certificate. If it were used
more often, it is possible that many potential actions might be
settled without the necessity of resorting to litigation.
To make it easier for a person faced with the difficult task of
selecting a solicitor to conduct his business when he does not know
a solicitor, or does not know what types of work a solicitor does,
the Law Society is presently considering establishing a lawyer
referral service. Under such a plan, solicitors would offer their
services indicating the types of work on which they do, or do not,
wish referrals. Applications by persons who do not know a solicitor
15Marsh, Neighbourhood Law Offices or Judicare?, (1966), 25 Legal Aid
Briefcase 12.
McGILL LAW JOURNAL
[Vol. 15
are referred to solicitors on the panel, on a rotation basis, who
will give a preliminary consultation for a nominal fixed fee.
Another matter of concern to the Plan are the few lawyers who
have been able to attract very large legal aid practices particularly
in the field of criminal law. If a lawyer takes on too many cases
or too much work, the legally assisted client may not be receiving
the quality of legal services that was envisaged. Moreover, these
lawyers who have been able to charge $20,000 or more a year to the
Legal Aid Plan, leave the Plan open to the criticism that it would
be much less expensive to operate a public defender system through
salaried lawyers. To meet this criticism, the Law Society has recently
decided, on an experimental basis, that the number of legal aid
certificates in criminal matters one lawyer can accept shall be
limited to 75 in any fiscal year without the prior consent of the
Provincial Director. It was felt that one result of this action would
be to help to spread this type of work among a larger group of
barristers, and thus continue to enlarge the criminal bar which is
necessary for the good operation of the Plan.
The Law Society is strict in the supervision of its members
coming within the operation of the Plan and who are abusing it.
Some members have been warned that they risk having their names
removed from the legal aid panels. Others have been permanently
barred from accepting any further certificates under the Plan.
IV. Possible Areas of Conflict Between the
Profession and the Government
A matter which has yet to be examined to any degree, and which
must be faced up to soon, is the effect that legal aid will have on
the independence of the profession. Certainly, every effort was made
in the establishment of the Plan to maintain the profession’s
independence. Nevertheless, the very existence of the Plan provides
the possibility of conflict between the profession and the government.
The right of a legally assisted person to choose his own lawyer is
one area where the interests of the profession and the government
can diverge. The Law Society has always taken the position that
all lawyers are equally qualified, and some lawyers in the American
tradition have insisted that there is no limitation on what they
can do. So long as there are no accredited specialists in the profession,
there is some justification for this attitude. If, however, the profession
continues to resist accreditation and recognition of specialists and
continues to encourage the public to believe that every lawyer is
capable of any type of practice, the government might not continue
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THE ONTARIO LEGAL AID PLAN
to take a neutral position concerning specialization.’ 6 He, who pays
the piper, will call the tune.
Consideration will also have to be given soon to the matter of
how the tariff of fees will be periodically reviewed by the Society
and the government. More important, what will be the position of
the Society if, in some future revision, it cannot come to an agreement
with the government? Will the freedom of lawyers to opt in or out
of the legal aid Plan be recognized?
The most likely cause of a conflict between the profession and
the government will result from a failure to keep the cost of the
Plan within reasonably economic limits. Mr. John D. Arnup, Q.C.,
a former Treasurer of the Law Society, considered this problem
when speaking to the mid-winter meeting of the Ontario Section
of the Canadian Bar Association a year ago, when he said-:
The possibility.., of conflict between the professional administration of
the provision of professional services on the one hand, and the pressing
demand upon public money on the other is very real …
(The) division of responsibility makes a clear distinction between
those decisions which are political –
and I use the word in its broadest
and its proper sense – political decisions on the one hand, and administrative
decisions on the other. The Law Society must jealously guard its right
to make the administrative decisions of a professional nature. The govern-
ment must be vigorous and vigilant on its part to see that this Plan does
not cost the Province of Ontario more money than it can afford to pay.
Now how is this to be worked out if it turns out that the cost of the
Plan is more than anticipated? …
Now it
is my view, and I say it not dogmatically, but after due
consideration, that it is for the government to decide the extent of legal
aid which will be provided, not in the first instance of dollars but in
terms of the kinds of legal aid that will be provided … The profession
is dedicated to providing appropriate services at a modest cost and if the
Province cannot afford the aggregate of a full scale, across the board
legal aid plan, then the government will have to cut back the Plan by
making the political decision that in some areas
legal aid will not
longer be given.17
16 For a discussion of the problems in the roecognition and accreditation of
specialists in the legal profession, see the Honourable Edson L. Haines of the
Supreme Court of Ontario, Specialists within the Profession, (W&8), Law
Society of Upper Canada Gazette, (Sept.), at p. 11.
17 The Government and the Society, (1068), 2 Law Society of Upper Canada
Gazette, (March), at p. 12.
McGILL LAW JOURNALV
[Vol. 15
V. Legal Aid and the Chronic Poor
The one group whose need for legal aid is not being satisfied is
the chronic poor. This is a problem which is not confined to the
Ontario Plan; it is common to almost all legal aid Plans. In the final
analysis, the ultimate measure of the success of the Ontario Legal
Aid Plan may well be the degree of success it has in reaching out to
the chronic poor, who need legal aid and who, for the most part,
are not now receiving it.
Simply making legal aid freely and readily available
is not
enough. It assumes that the poor have the initiative to help them-
selves when the means are made available. The fact is that they
do not. The poor are different. They are different in their feelings,
attitudes and emotions. Above all else, an intense attitude of fatalism
and pessimism permeates every aspect of their lives. Their lack
of initiative to improve their position is characteristically marked
by an attitude of “What’s the use” instilled by a succession of personal
failures. There is a similar reaction on the part of the poor to the
suggestion that there are legal remedies which could assist them.
In the words of Senator Robert Kennedy, “the poor man looks upon
the law as an enemy.., for him the law is always taking something
away.”p
The failure of the low income groups to use the Division Court,
Ontario’s small-claims court, to some extent demonstrates
this
lack of confidence in the courts by the poor with their “what’s the
use attitude”, and their failure to think in terms of invoking legal
processes for their own assistance. It was originally considered that
these speedy and inexpensive courts with informal rules of evidence
and procedure, low filing fees and no necessity to be represented
by a lawyer, would be used by the poor to prosecute and defend
small claims. But the promise of the Division Courts has not
been fulfilled, for in actual practise there is little comparison between
the professed aims of these courts and the ends they serve. Justice
J. Skelly Wright, a judge on the United States Court of Appeals for
the District of Columbia circuit, in writing about the small claims
courts in the United States has said:
Those who have studied them have observed that they are primarily used,
not by the poor, but by business organizations seeking to collect debts.
A number of these organizations handle such a large volume of claims
that they have established collection departments which make routine use
of the courts. Thus it is primarily the business man, not the poor man,
who reaps the advantage of the inexpensive and speedy small claims courts.
Why has the initial purposes of these courts been subverted? Primarily
the poor
because the business concerns are aware of their rights and
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are not. Consequently, the poor are usually the defendants, rather than
the plaintiffs, in small claims courts. The poor lack the security and
the capacity to assert their rights even when they recognize the rights.
Indeed, most low income consumers are unaware of the existence of the
small claims court. They simply do not think in terms of invoking legal
processes on their side. They have no confidence in courts.’ 8
The Right Honourable Edward Heath in speaking of the English
legal aid plan said:
People should know their rights and know the protection that law can give.
If people knew their rights and knew the protection that law could give,
it would go a long way to get rid of persecution and racketeering that
is one of the afflictions of poverty and
to eliminate the inarticulate
frustration and resentment that still gives credence
to
the inveterate
fallacy: “One law for the rich and one law for the poor”. 1 9
This is, however, only part of the answer. The real problem is,
assuming that the poor know their rights, how can they be encouraged
to assert their rights. Moreover, it is not so much that the law
should be the same for the rich and the poor but that the burden
should be equal. Otherwise the equality may be the sort that Anatole
France had in mind when he said: “The law in all its majestic
equality, forbids the rich as well as the poor to sleep under bridges
on rainy nights, to beg on the streets and to steal bread.”
If the poor are to know their rights, to know the protection that
law can give and to acquire the initiative to assert these rights when
necessary, they must be first warned against the many common
forms of exploitation that surround them. The legal aid society of
Atlainta, Georgia as part of the publicity programme have had ad-
vertisements such as “They fixed my porch but they took my house”
or “I’d rather walk across town than pay 450 for a bunch of greens”
posted in the city buses. Not only do these advertisements warn
the poor, they also serve as a warning to exploiters.
To encourage those who continue to be exploited to assert their
legal rights, it may be necessary to take legal aid to the poor and
not to expect the poor to ask for it. A local legal centre staffed by
Duty Counsel could, for example, be taken, at no great expense, to
the poorest and most depressed areas. Social workers should be on
the staff of every such legal centre. In many cases, lawyers do not
have the patience, time and training to help these inarticulate people
who are not knowledgeable enough to either know the nature of
their problems or the questions to ask when referred to a lawyer. In
‘8 The New York Times Magazine, March 9th, .1969.
19 (1968), 1i The Solicitors Journal 533, at p. 534.
McGILL LAW JOURNAL
[Vol. 15
these cases, the social workers could help by interviewing the client
first. They could take down statements, collect basic data and docu-
ments which so often the poor are unable to do on their own, and
which is so time consuming for a legal aid lawyer, who is used to
relying more on his client to do some of the leg work in digging up
necessary information.
A warning of what could happen if lawyers neglect to meet the
needs for legal assistance for all levels of society was contained in
a recent editorial in The Solicitors Journal:
If we cannot meet the needs of the public, (including the poorest sections
of the community) for adequate legal advice and assistance, the politicians
will do the job for us –
and their way without our help, probably will
not be the best way for the public or ourselves. 20
VI. Conclusion
The Plan has been most successful in the field of criminal law.
Those in need of legal assistance have been easily identified. They
have not had to seek out legal aid. Duty Counsel in the courts of
first instance have sought out and have brought legal aid to those
in need of it.
In the field of civil law the number of divorce actions taken
by legal aid lawyers give some idea of how those without the
financial resources were locked into unhappy relationships which
those who were better off did hot have to endure. There is how-
ever a greater number in need of legal aid in the civil law sector who
have not been receiving it; the need has, however, been recognized;
measures to tackle this admittedly difficult problem are being
considered.
Although recognizing the danger and limitations of speaking
from a position that is not impartial, there is reason to believe that
legal add has done much to increase the stature of the profession
within the province. From the beginning, the zeal and the determi-
nation- on the part of the Law Society to make the operation of
the Legal Aid Plan as successful as possible has always been ap-
parent. The Compensation Fund to protect clients from defaulting
solicitors and the Legal Aid Plan have more than anything else
indicated to the public an awareness on the part of the legal pro-
fession of its responsibility to use the privileges given to it in the
service of society. The report of the Treasurer to this year’s annual
20 (1068), ,11l The Solicitors Journal 525.
No. a”]
THE ONTARIO LEGAL AID PLAN
meeting of the Law Society recognized this responsibility when he
said :
(I)t is fair to say that the operation of the Plan to date, has been
unquestionably successful. It is imperative that the spirit of co-operation
between the government and the Law Society with the administration of
(the Plan) should be maintained so that every Ontario resident will be
assured of his measure of legal aid security which is unique in the world.
The Ontario Legal Aid Plan which started as a “bold social
experiment” has, in two and a half years, become an integral part
of the administration of justice in the province. It has had at the
same time a far reaching and increasing effect upon the law itself,
the respect for which people hold the law and in the organization
of the legal profession of Ontario.21
(December), at p. 15; G. Parker, Legal Aid –
21 See generally, The First Annual Report of the Advisory Committee on
Legal Aid in Ontario, (1068); Andrew M. Lawson, Ontario Legal Aid – Bane
or Boon to the Criminal Bar, (1968), Chitty’s Law J. 258; Hon. John Robarts,
Q.C., The Ontario Legal Aid Plan, (1968), 2 Law Society of Upper Canada
Gazette, (March), at p. 10; John D. Arnup, Q.C., The Government and the
Society, (1.968), 2 Law Society of Upper Canada Gazette, (March), at p. 10;
Criminal Appeals Under Legal Aid, (1968), 2 Law Society of Upper Canada
(September), at p. 38; David J. Thomas, Q.C., Settling Accounts
Gazette,
under the Ontario Legal Aid Plan, (f1968), 2 Law Society of Upper Canada
Gazette,
Canadian Style,
(i1968), 14 Wayne L. Rev. 471; The Law Society of Upper Canada, Ontario
Legal Aid lan, Annual Report, (1968); G. Arthur Martin, Q.C., Legal Aid in
Ontario, (1967), 10 Can. Bar J. 473; Lee Silverstein, The New Ontario Legal
Aid System and its Significance for the United States, (1.967), 25 The Legal
Aid Brief Cose, No. 3, at p. 83; The Ontario Legal Aid Plan: A Symposium,
(.1067), 1 Law Society of Upper Canada Gazette, (May), at p. 8; John M.
Magwood, Q.C., The Berth and Growing Pains of the Ontario Legal Aid Plan
in York County, (1967), 1 Law Society of Upper Canada Gazette, (September),
at p. 33; G. Arthur Martin, Q.C., Legal Aid Certificates for Appeal, (1067),
1 Law Society of Upper Canada Gazette, (December), at p. 25; Province of
Ontario, Report of the Joint Committee on Legal Aid, (1065).
