Ontario's Legal Aid Cuts: David vs. Goliath

When David walked into the Valley of Elah he was protected by God. He would need all the help he could get. David was to face the giant Goliath in single combat. Goliath clad in armour carried a deadly steel-tipped javelin; David had only a sling. The fight was short, David hurled a stone striking the giant in the middle of his forehead. Goliath fell and David won the day.

The underdog usually wins. But only in stories. Because the fable of David and Goliath is not true. In real life, David would have been slaughtered. In real life, there is no divine protection. In real life, the little guy rarely wins.

And what if David didn’t even have a magical sling?

In Ontario, we are about to find out.

In Canadian courts the David and Goliath story plays out every day.

The state is the giant. Its prosecutors are highly skilled and well-trained. The Crown, supported by the police, has the resources to investigate and collect evidence, fly witnesses across the country, hire experts, bring complex legal applications and appeal losses.

The accused, on the other hand, is hardly ever a trained lawyer and much more likely to suffer from marginalization and stigmatization. An accused person fights an uphill battle, hamstrung by oppressive bail conditions and a lack of resources. No accused has a private team of investigators, a legion of file clerks, or the ability to hire costly experts.

How fair is an adversarial legal system when only one of the adversaries is a giant?

And now the Doug Ford government in Ontario wants to make things even more unfair by eliminating lawyers for some of the Province’s most vulnerable litigants.

Last week, the Ontario budget slashed funding to Legal Aid Ontario by over 30 per cent. Adding to the cruelty, the $133 million cut takes effect immediately – there was no advanced notice. And to make matters even worse the province has directed LAO that no provincial money can be used to cover immigration and refugee law, leaving that program with a staggering and unexpected $45 million shortfall.

Criminal and family lawyers are waiting for the other shoe to drop. Even after the $45 million cut to immigration and refugee services there are still $90 million of cuts to come. LAO is already a lean organization that, due to historic underfunding, has already been forced to cut back the scope and amount of legal services it covers. There is no loose change to be found in the couch cushions. There is not $90 million of fat to trim from the bone. There will be more service cuts.

But it’s immigrants and refugees who will suffer first.

A refugee who has escaped desperate and dangerous circumstances will now face an equally dire situation in Canada. Many refuges don’t speak english and don’t have a sophisticated understanding of Canada’s legal system. Many immigrants have been persecuted or marginalized in their country of origin. Most live in poverty. And now most will not have access to a lawyer.

Ford’s cruel cuts come at an already dire time for immigrants. The federal Liberals have buried a hard-right turn on immigration in their omnibus budget implementation bill. The changes, the government says, close loopholes in the safe-third-country agreement. Liberal cabinet minister Bill Blair callously says the new legislation will end “asylum-shopping.” Experts call the changes a devastating attack on refugee rights.

The federal government has also been quietly increasing the maximum sentence for many criminal offences. Now, new marijuana and impaired driving penalties mean that entire new categories of offences are considered “serious criminality” and can result in immigrants branded as inadmissible to Canada, even when relatively minor punishments are imposed. This means permanent residents can lose their status, temporary residents will be removed, and refugees may be ineligible for a hearing.

Thanks to Ford these people now won’t even be provided the necessary protection of a lawyer.

Ford says that immigration is a federal responsibility and the federal government should pay the full cost. Whether he is right or wrong (spoiler alert – he is wrong) “for the people” Ford seems content to use vulnerable people as pawns in his financial and political fight with Ottawa.

It’s true that the federal government does provide some funding to LAO for immigration services. But not nearly enough to prevent the inevitable injustice. And Ford’s cuts don’t only come in the middle of the current fiscal year but after the federal government has set its budget.

In any event, given Trudeau’s right-turn on immigration issues and the approaching election it would be naive to expect a federal white knight.

The reality is that cuts to LAO do little to solve Ontario’s deficit issues, if anything they may end up costing the system more. But they do guarantee cold and cruel unfairness. And it is only going to get worse. As we have often seen over the course of history it is immigrants who will be at the vanguard of unfairness and danger.

Is seems the all levels of government want to make sure that David has no chance of winning any fight – let alone one against Goliath.

Wilson-Raybould was not wrong to record Wernick's call

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So it was the tape that broke Justin Trudeau’s back?

Speaking before a packed room of supporters, shortly after expelling Jody Wilson-Raybould and Jane Philpott from the Liberal caucus, Justin Trudeau explained that the “trust that previously existed between these two individuals and our team has been broken, whether it’s taping conversations without consent, or repeatedly expressing a lack of confidence in our government and in me personally as leader, it’s become clear that Ms. Wilson-Raybould and Dr. Philpott can no longer remain part of our Liberal team.”

Trudeau went on to say that a politician recording conversations is wrong and that Wilson-Raybould recording her conversation with the Clerk of the Privy Council Michael Wernick was “unconscionable”. 

And then there was a rush by many lawyers to agree that Wilson-Raybould crossed an ethical line and displayed a serious lack of judgement. There were even a threats to report her to the Law Society of Ontario.

But was it wrong for Wilson-Raybould to record her conversation with Wernick?

Let’s start with the low hanging fruit. The recording was not illegal. There is no law that prohibits taping a conversation that you are a part of. 

There are special rules for lawyers. The Law Society of Ontariorules prohibit the recording of a conversation between a lawyer and their client or another legal practitioner. But Wernick was not Wilson-Raybould’s client and he is not a lawyer. So best of luck with that, law society complainant.  

Just because there is not a law prohibiting an act does not make that act right or moral. Criminality should not and cannot represent the line of propriety in politics. A defence that no law was broken is usually the last line of defence for the morally bankrupt.

So the real question is if Wilson-Raybould’s actions were moral? Was taping the conversation the right thing to do? 

Like most things in life, context matters. Wilson-Raybould herself recognizes that taping Wernick was an “extraordinary” step that in normal circumstances would be inappropriate. This insight shows that she was not acting in a cavalier or precipitous fashion.

But more importantly, Wilson-Raybould was indeed facing extraordinary circumstances. 

Recall that after telling the prime minister that she would not exercise her independent authority and take the unprecedented step of overruling the independent prosecutors in the SNC case Wilson-Raybould was repeatedly pressed to change her mind.

It was not only made clear to Wilson-Raybould that the PMO wanted her to reverse her decision but that desire was linked to political considerations. 

After all, there was an election approaching and according to Trudeau’s senior advisor Mathieu Bouchard the PMO could have the best policies in the world but they needed to get re-elected.

The pressure, which the government does not even bother denying anymore, was constant. It came from the prime minister’s office, the finance minister’s office, and from the clerk of the privy council himself – Michael Wernick. They all were delivering a clear message from Justin Trudeau – over and over again.

It is in this context, after months of pressure and after she had made the decision that was hers alone to make, that Wilson-Raybould recorded her conversation with Wernick. A call she expected. A conversation that she knew may be important. And communication initiated by Wernick when Wilson-Raybould was away from her office and alone.

In this context just how was recording the conversation wrong?

In her testimony before the Justice and Human Rights committee Wilson-Raybould detailed the conversation. She said that Wernick told her that he had met with Trudeau and wanted to pass on where the prime minister was at. He said the Trudeau wanted to use every tool to remedy the situation and wanted to know why the remediation agreement was not being used. Wernick told Wilson-Raybould that Trudeau would “find a way to get it done, one way or another… he is in that kind of mood.” 

Wilson-Raybould told the committee that she again asserted her independence but Wernick, on behalf of the prime minster, pressed on. He said the prime minister was firm and warned of a “collision.” 

Following Wilson-Raybould testimony the justice committee recalled Wernick to clarify his evidence. He testified, albeit not under oath, that he did not have an independent recollection of the conversation and Wilson-Raybould’s description of the call was “not my recollection of the conversation.”

Wilson-Raybould did not release the tape until Wernick conveniently encountered memory problems. 

So, thank goodness that Wilson-Raybould did take the unprecedented step of making the recording or we still might be debating if this conversation happened at all.

Ask any lawyer – we all have a story about a tape, video or private communication that vindicated our client or proved the opposing party to be a liar. In those cases, there are not lawyers complaining about impropriety or threatening to make frivolous and foolish law society complaints. So why now?

The Wernick tape provided Trudeau and those who want to carry water on his behalf an easy out. The tape is a convenient way to avoid taking a principled approach to the SNC affair. It is a short-sighted way to move the conversation away from the real issue – the actions of the prime minister and the government. 

Maybe you’re a blind partisan. Maybe you have a fear that the SNC scandal could lead to a Conservative government. Or maybe you are cool with an erosion of the rule of law. In that case the recording is easy cover for your intellectual dishonesty.

The Wernick tape may provide an easy out for those defending the government but that does not change the fact Wilson-Raybould acted perfectly appropriately when she recorded it. 

SNC-Lavalin affair raises the issue of the role of former judges

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The SNC-Lavalin scandal has proven to be an insatiable beast with tentacles reaching deep into the political and legal worlds — perhaps even as far as the Supreme Court of Canada.

Politically, the allegations of interference with the justice system have deeply damaged the “sunny ways” Liberal brand and catapulted the Conservative Party ahead of Prime Minister Justin Trudeau in pre-election opinion polls. And, as most scandals do, the SNC affair has led to a series of high-profile resignations. Former minister of justice and attorney general Jody Wilson-Raybould may have been the first out the door, but her departure was quickly followed by the principal secretary to the prime minister, Gerald Butts, the president of the Treasury Board, Jane Philpott, and, most recently, the clerk of the Privy Council, Michael Wernick. 

The government, in its scramble to defuse the political crises, launched a half-hearted study into the allegations before the Liberal-controlled justice committee appointed Anne McLellan to advise the PMO on the role of justice minister and attorney general in cabinet.

But none of this, rightly so given that the rule of law is at stake, has quieted the continuing questions about Trudeau’s integrity and his leadership. 

And now there seems to be a rising grumbling that the legal profession should consider what activities former judges can be permitted to engage in after retirement. 

After all, the short history of the SNC scandal does reveal a who’s who of the legal profession. 

Former Supreme Court of Canada judge Frank Iacobucci, who is now senior counsel at the law firm Torys, was actively involved in SNC-Lavalin’s defence — even signing his name to a letter to the Public Prosecution Service advocating for a deferred persecution agreement.  

Wilson-Raybould hired former Supreme Court justice Thomas Cromwell to provide her with legal advice about the scope and application of solicitor-client privilege.

Even the PMO got into the former judge game by floating the idea of retaining former Supreme Court Chief justice Beverley McLachlin to provide a legal opinion on deferred prosecution agreements.

The re-examination of permissible post-judicial activities may all just be a convenient distraction for those who wish to turn the channel away from the actions of the prime minister and his office. But there may be some merit considering what activities judges should be permitted to engage in during their golden years. 

Should judges go gently into the good night of retirement? Or should they rage, rage against the dying of the light?

Should former judges have been involved in the SNC case at all?

Well, there are rules about what activities a retired judge can undertake after returning to practice. 

In Ontario, a lawyer who was formerly a judge of the Supreme Court of Canada, the Court of Appeal for Ontario, the Federal Court of Appeal or the Superior Court of Justice is barred from advocating in any court or before any administrative board or tribunal absent special permission that can only be granted in exceptional circumstances. Former judges of the Ontario Court of Justice are unable to appear before a court for a period of three years from the date of their retirement.

The Federation of Law Societies has also released a discussion paper on post-judicial returns to legal practice. 

But none of the rules — proposed or on the books — would have applied in the SNC case. And that may actually be a good thing.

Prohibiting retired judges from practising law carries hidden costs. Restrictions may limit the pool of qualified lawyers who would want to apply for judicial appointment — many potential applicants won’t want to view the bench as the end of their career. Limiting post-retirement work may indeed encourage judges to serve until mandatory retirement, which risks ossifying our courts and discouraging younger applicants. And limitations on post-retirement work ignores the fact that judges, even after retirement, can make valuable contributions to society through continued legal work. Rules that limit judicial practice could have the effect of discouraging the insight and expertise retired judges can bring to pro bono work and public policy development.

Some have suggested that former judges should not be involved in any litigation that may end up before the Supreme Court or cases that may become political. But it is impossible to determine to which cases that limit would apply until it actually happens. 

It seems that the solution to the perceived problem of post-judicial activities may create more problems than it solves.

Sure, there is always a risk that the public may perceive that the involvement of a retired judge in a particular case renders the legal system unfair. This is a valid concern and perhaps there needs to be public education about the current rules of professional conduct. But, in reality, judges are very comfortable disagreeing with each other and being disagreed with. Indeed, the PPSC did not seem to be swayed by anything Iacobucci said on the SNC case — the fact he was a former Supreme Court justice did not seem to move the needle at all.

The real problem may actually be with those in politics who seek to use retired judges as a political weapon. 

Former prime minister Stephen Harper did it when he released former Supreme Court judge Ian Binnie’s opinion on the Marc Nadon case — a case that the government clearly knew was going to be controversial. 

Iacobucci may have unsuccessfully advocated on SNC’s behalf, but it was the clerk of the privy council, as part of the PMO attempts to influence Wilson-Raybould’s decision, who wielded the name as a weapon, telling her that: “Iacobucci is not a shrinking violet."

And it was the PMO who was quite keen on the idea of “retaining an ex Supreme Court of Canada judge” to provide “cover in the business community and the legal community.”

So, while examining the scope of work retired judges should be permitted to engage in is not a bad idea, a better idea would be to insist on better and more ethical behaviour from our politicians.

Perhaps, it is those who were trying to influence the course of justice from inside the prime minister’s office and not the former judges who should go quietly into the night.

Gerald Butts' quarrel with Jody Wilson-Raybould's evidence falls short

Gerald Butts came to the justice committee not to bury Canada’s former attorney general Jody Wilson-Raybould but to praise her. He told the committee that he was not going to “quarrel” with Wilson-Raybould’s evidence and pledged not to say a “single negative word about her.”

And then he did just that.

In the folksiest way possible, Butts called Wilson-Raybould a liar who fabricated evidence. He really had no choice because Wilson-Raybould’s evidence, as confirmed by evidence of virtually everyone who has spoken about the SNC-Lavalin affair, paints a picture of a government content, when it suits it, to undermine the rule of law. 

Remember, Wilson-Raybould had testified that Butts told her the PMO needed “a solution on the SNC stuff” and told her that she needed to “find a solution.” Wilson-Raybould also testified that Butts told her chief of staff that “there is no solution here that does not involve some interference.”

This is damning evidence that the PMO saw the AG’s decision not to overrule the director of public prosecutions and offer SNC a deferred prosecution agreement as a problem that needed fixing. Butts testified that the only problem that needed solving was to make sure due consideration was given to a decision. He says he did not have a preferred outcome and did not utter the words Wilson-Raybould said he did.

Butts also testified that, contrary to Wilson-Raybould’s evidence, he never linked the SNC issue to electoral politics. He said his staff didn’t either, even though he was not present for those conversations, because they are all good people who would never do that.

There are not two truths here. Either Butts and his staff said these things or they didn’t. 

And then Butts went on to insinuate that Wilson-Raybould was not up to the job of considering the SNC issue. He told the committee that she made her decision too quickly and, since deferred prosecution agreements were a new law that had never been applied before, any reasonable person would want a second legal opinion. 

At this point, the double speak poisons Butts’ narrative because when there was criticism that the DPA regime was slipped into an omnibus budget implementation bill without study the government was quick to point out that it had consulted more than 370 participants and received 75 written submissions prior to enacting the DPA laws. Wilson-Raybould not only had the benefit of those submissions but the expertise of her department, a detailed briefing note from the prosecutors, SNC’s submissions and her own expertise.

Butts’ evidence that he just wanted Wilson-Raybould to consider other opinions stretches any notions of credulity. Butts suggested that they could seek a second opinion from former Supreme Court Chief Justice Beverley McLachlin. And what would McLachlin bring to the table on this issue — she has never dealt with the new remediation agreement provisions before either. 

A second legal opinion, friendly newspapers articles and outside counsel are more clearly a tool of pressure to achieve a preferred result rather than some noble intellectual exercise.

And then Butts dragged out the tired talking point that Wilson-Raybould did not raise her concerns. She did not raise a hue and cry. It is, implies Butts, her fault for not speaking out. 

Except that, according to her very credible evidence, she did speak out — over and over and over again. 

According to Wilson-Raybould, between September and December of 2018, she told Prime Minister Justin Trudeau that she had made her decision and told him to stop pressing her and then she told the clerk of the privy council office, the office of the minister of finance and operatives from the PMO the same thing. It is unfathomable, short of willful blindness, that Butts would be unaware of these conversations.

Butts delivered a master class in the art of character assassination with a smile. He clearly did quarrel with Wilson-Raybould’s evidence and said more than a single negative word about her. 

And Butts’ evidence is itself not without its flaws. 

Butts was undermined the very next day by Trudeau who did not explicitly reject Wilson-Raybould’s assertions. Trudeau even confirmed he did link SNC to electoral politics when he confirmed he told Wilson-Raybold that there is an election in Quebec and that he was “an MP in Quebec, the member for Papineau.” 

Butts testified he only learned for the first time, while watching the former attorney general's testimony, that she had made a final decision on Sept. 16. He used this lack of knowledge to justify why the PMO persisted in pressing Wilson-Raybould. But then, in the next breath, Butts claims that he was principally concerned about the fact that Wilson-Raybould only considered whether to pursue a remediation agreement for 12 days before she made her decision.

How can the quickness of a decision Butts did not even know about motivate his actions?

On a close examination, Butts' evidence falls short on almost every level. He is sure about things he can’t possibly be sure about, he is fuzzy on other important details, he contradicts himself and he is contradicted by others.

Butts sought to undermine Wilson-Raybould, but more importantly, he sought to blur the line of impropriety. It was not about politics, it was about public policy. It was not about questioning the decision, it was about providing second opinions. It was not imposing pressure but providing information. It was not a co-ordinated campaign but a confluence of independent concerned actors.

If a line is blurred enough, it becomes impossible to tell where it begins or ends and it becomes impossible to cross.

In the end, Butts may have raised a doubt in the minds of some about whether the government’s actions were well intentioned but improper or malicious and illegal.

And this is really where Butts’ evidence fails to provide any satisfaction. Because raising a doubt about government impropriety when the rule of law is at stake is a pretty low bar to cross when so much is at stake. 

We should not just have a doubt about whether the government acted improperly, we must be sure that it did not. 

Canada’s record suspension system is punitive and must be fixed

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It’s been more than 200 years since a hot iron was used to mark permanent letters on the bodies of people convicted of crimes in courtrooms across England – the birthplace of Canada’s common law system of justice. ‘T’ for theft, ‘F’ for felon, and ‘M’ for murder. Though this violent branding no longer occurs, we still mark people through the imposition of a criminal record that is often just as damning.

A criminal record is almost as visible a brand as the hot iron markings. An increasing number of organizations, employers, volunteer managers, landlords, educational institutions and government departments insist on criminal background checks as part of their hiring and management practices. This means even those with minor records cannot fully participate in society after they’ve completed their sentence.

Canada’s pardon system, as it existed prior to 2012, provided some relief from the stigma associated with the criminal mark. People could apply to have their record sealed and set aside in order to find employment, return to school, volunteer in their communities or secure housing.

This was not only a benefit to the individual with a criminal record, it was good for our communities too. The research is clear: Pro-social community engagement results in decreased recidivism and increased public safety.

Canada’s pardon system, as it existed prior to 2012, provided some relief from the stigma associated with the criminal mark.

But unfortunately, instead of moving forward on even more progressive pardon laws, the Harper government chose to use the file to further its law and order agenda. Changes made by the Conservatives eliminated pardons in favour of “record suspensions” and made necessary relief harder to come by – especially for those who are already poor and marginalized.

The current 10-step record suspension application is needlessly complex and burdensome. It is a procedural quagmire that is almost unnavigable for lawyers, let alone the general public. The wait times to apply are unnecessarily long: 10 years for indictable offences and five years for the most minor of offences. And then there is the cost of well over $600 to even apply for a record suspension. Bottom line: this two-tiered system means if you are poor, you are branded for life.

The simple truth is that Canada’s record suspension system is punitive and it must be fixed.

Those aren’t our words. They were spoken by Minister of Public Safety Ralph Goodale in January 2016 when he vowed to overhaul Canada’s punitive pardon system. Well, it’s been more than three years and Goodale’s own record has been one of shameful inaction. He has done nothing to overhaul the Criminal Records Act, even after aspects of it were found unconstitutional by courts in Ontario and British Columbia.

Advocates and people with criminal records have grown frustrated by the lack of initiative, but recently we were provided with a glimmer of hope by Sen. Kim Pate, who introduced Bill S-258, An Act to amend the Criminal Records Act.

Sen. Kim Pate, shown here visiting the segregation unit at the Millhaven Institute had introduced a bill that would allow criminal records to expire after a set time period without a complicated application process and with no fee. OTTWP

Bill S-258 builds on decades of research and public consultation to do the work Goodale refuses to do. The legislation would allow criminal records to expire after a set time period without a complicated application process and with no fee.

If passed, this bill would also automatically grant pardons to people convicted of acts that are no longer illegal. For example, the convictions for historic offences based on discriminatory laws or records for non-violent cannabis offences would not be a lasting mark of shame and oppression.

Like all legislation in its early stages, Sen. Pate’s bill can be improved upon through parliamentary committee study, but it represents a monumental step forward for fairness, public safety and evidence-based justice policy.

While the previous federal government offloaded the costs of pardons completely onto people with criminal records, in reality we all pay the price for this broken system. It is in the public interest to have a robust system of pardons, not only because of piles of research that demonstrate sealing criminal records supports reintegration but also because we all benefit from a system that allows for restoration.

The Liberal government seems content with the status quo, but just as we look back on the hot iron with disgust and revulsion, it should remember that future generations will view its inaction in the same way.

Michael Spratt is an advocate for progressive criminal justice reform and a partner at the Ottawa criminal law firm Abergel Goldstein & Partners.

Samantha McAleese is a social justice advocate, a PhD Candidate in sociology at Carleton University, and a member of the Criminalization and Punishment Education Project.