Doug Ford's Legal Aid Guarantee

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Ontario has made deep cuts to the legal aid system. Deep cuts — to the tune of $133 million — that mean that many impoverished and marginalized Ontarians will now face prosecution, conviction, and the possibility of jail time without the assistance of a lawyer.

They include a 70-year-old woman with no criminal record who lives on a meager pension. She had too much to drink one night and got into a fight with her abusive partner. The police were called and now the Crown wants to brand her a criminal.

And man on disability who only has one lung and uses an oxygen tank. He was charged with failing to provide a breath sample because he could not blow enough air into the breathalyzer. Prosecutors want to give him a criminal record and ban him from driving. 

These are real people – I met with both of them last week. They were both denied legal aid and can't afford a lawyer. Stories like this are only the tip of the iceberg. Under Premier Doug Ford, our courts risk becoming factories of waste and injustice.

Perhaps Ford thinks that a fight with the poorest and most vulnerable Ontarians – because that is who depends on the legal aid – will be an easy victory. It is easier, after all, to punch down.

Immigration services

But this is one fight where there can be no winner. Ford's cuts are not just financially reckless, but will also result in wrongful convictions, as well as serious criminals escaping justice. Ontario will see immigration unfairness, vulnerable tenants left without any meaningful recourse to hold predatory landlords to account, and the shuttering of community legal clinics.

Back in April, the Ontario government slashed funding to Legal Aid Ontario (LAO) by 30 per cent. To make matters worse, the $133 million cut took effect immediately – there was no advanced notice – despite the fact that LAO's 2019 budget had already been finalized. And on top of it all, the province directed LAO that no provincial money can be used to cover immigration and refugee law, putting the onus on the federal government to cover the cost.

So, immigrants and refugees, many of whom have escaped desperate and dangerous circumstances will now face a hopeless situation in Canada. Many refugees don't speak English and don't have a sophisticated understanding of Canada's legal system. Most live in poverty. And now they will not have access to a lawyer through the province's legal aid system. 

It's unclear exactly how these cuts will manifest on the ground level, but already legal aid clinics are grappling with the threat of closure, and it is likely there will be changes to types of charges eligible for coverage. More people will therefore be forced to represent themselves. 

Unrepresented litigants devour justice system resources. Their cases take longer to wind their way through the bureaucratic court system and cost more to prosecute. So, a dollar saved through legal aid cuts will consume more resources at the end of the day. A pretty bad investment. And clogging court resources with slow-moving unrepresented litigants might mean more charges thrown out of court due to unconstitutional delay. Thank you, Doug Ford.

Unrepresented accused are also more likely to be steamrolled in our courts. You see, our justice system is adversarial and only functions if the adversaries – the prosecution and the defense – are equally matched.  An impoverished, marginalized, or unsophisticated self-represented litigant stands no chance against the well-funded state. With odds stacked against them, many unrepresented accused are coerced into pleading guilty, even when they are not. Because of Ford, there will be more wrongful convictions.

When the stark reality of his cuts was discussed on talk radio back in April, it seemed to get under Ford's thin skin. After almost "hitting three telephone poles," Ford called in to defend himself. At the end of that impromptu call Ford said that, "if anyone needs support on legal aid, feel free to call my office. I will guarantee you that you will have legal aid."    

Legal aid 'guarantee' 

Ford made his personal guarantee more than 50 days ago. Since then, he has not responded to emails, faxes, or text messages about how people who have been denied legal aid can take him up on his promise. Because he was never serious.

Maybe Ford thought his reckless cuts to the legal aid system would go unnoticed. But lawyers, judges, and the vast majority of Ontarians have taken notice, and most are opposed Ford's slash-and-burn philosophy.

Ford may not care about those in need, but he sure seems to care about his own political skin. So maybe, just maybe, there is still time for Ford to reverse course. Because there are never any winners in a war against a fair justice system.

MMIWG Report: Stop your conspiracy theories - it was genocide

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Some people believe the earth is flat. Some people believe climate change is a myth. Some people believe the justice system is colour-blind. All of those people are dangerously wrong.

There is no question that the justice system — starting with the police, through the court system and into our jails — is a deeply flawed institution infected by overt and systemic racism. 

For those living in willful ignorance of this sad truth, the last month must have made for a rude awakening. In two separate judgments, the Supreme Court of Canada cast a spotlight on racism in the justice system. And then the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls revealed that persistent and deliberate rights violations were the root cause behind Canada’s staggering rates of violence against Indigenous women.

The National Inquiry opened its report with a bombshell, calling Canada’s historic and current treatment of First Nation, Inuit and Metis people a genocide. It was a word that caused many to recoil in ignorant self-defence. Retired general Romeo Dallaire, who witnessed the Rwandan genocide, said of the use of the g-word in the report, "I'm not comfortable with that.” The Globe and Mail, in an unsigned editorial, also brushed off the genocide label. And, of course, Canadian journalist and a senior editor at the faux-intellectual online magazine Quillette, Jonathan Kayjumped into the debate writing that the use of the word genocide strips the term of any meaning.

That is until you look at the actual meaning of the word genocide and the National Inquiry’s analysis of the stark horror of Canada’s history.

Raphael Lemkin, who coined the word "genocide" in 1943, defined the term as the destruction of a nation or of an ethnic group through the “disintegration of the political and social institutions, of culture, language, national feelings, religion and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity and even the lives of the individuals belonging to such groups.”

Genocide is defined in the Genocide Convention as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

Canada’s recent history with Indigenous people, a history that is in living memory and, in some cases, is still ongoing, is one of residential schools, family separations, forced and coerced sterilization and destruction of language and policies designed to crush culture.

Can there really be a question, under any definition, that this is genocide?

These are the policies and conditions that have led to thousands of murdered and missing Indigenous women and girls. These are the policies that have led to a disproportionate number of Indigenous people who are chewed up and spit out by the justice system.

This is the culture that led an RCMP officer to ask an Indigenous girl, who was in the care of the B.C. child welfare system, if she was “turned on” by the sexual assault she was reporting.

The National Inquiry’s final report and the backlash against its findings make it clear that racism still infects the justice system. 

And the Supreme Court of Canada agrees. In the case of Barton, released days before the National Inquiry’s report, the court acknowledged the detrimental effects of widespread racism against Indigenous people within our criminal justice system. The court went on to plainly state what anyone who lives in the justice system trenches knows all too well: “Trials do not take place in a historical, cultural, or social vacuum. Indigenous persons have suffered a long history of colonialism, the effects of which continue to be felt. There is no denying that Indigenous people — and in particular Indigenous women, girls, and sex workers — have endured serious injustices, including high rates of sexual violence against women.”

And a week later, in the case of Le, the Supreme Court again reiterated that members of racial minorities have disproportionate levels of contact with the police and the criminal justice system — not because of their conduct but because of the colour of their skin.

The last few weeks, as the impacts of Canada’s systemically racist and genocidal policies have been laid bare for all to see, have been heart wrenching and disturbing.

Some will continue to insist that if you sail far enough you will fall off the edge of the earth. And some will deny climate change even as they drown in the rising oceans. And some will quibble over semantics in an attempt to preserve colonial and racist structures. 

If we are to take any steps forward toward true reconciliation, we need to reject conspiracy theories and old colonial attitudes and begin to come to grips with the full extent of Canada’s wrongdoing.

Take your stinking paws off the justice system you damn, dirty politicians

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The Canadian justice system is one of the pillars that supports our democracy. The rule of law gives people a legal recourse to hold those in power to account. As the French ecclesiastic, preacher, journalist and political activist Jean-Baptiste Henri-Dominique Lacordaire said, “Between the rich and the poor, between the master and the servant, between the strong and the weak, it is freedom that oppresses, and the law that sets free.”  

Lacordaire was right. The purpose of law in a free and democratic society is to liberate, not to restrain. Our legal system and its independence from political interference helps contribute to a just society where power is constrained so that freedom and safety are available to all.

But this is a fragile system, built on trust in its legitimacy. That, however, has not stopped politicians from trying to place their thumbs on the scales of justice.

The message to those seeking to interfere in the administration of justice must be clear. Take your stinking paws off the justice system you damn, dirty politicians. 

Please.

Because thumbs are pressing on the scales all too often and the attitude of those involved is a casual indifference to the long-term damage they are causing.

Let’s start with the low-hanging fruit — the SNC-Lavalin scandal. There can be no clearer example of attempted political interference. 

The facts of the SNC scandal are actually pretty straightforward. Jody Wilson-Raybould told Prime Minister Justin Trudeau that she would not exercise her exclusive, independent authority and take the unprecedented step of overruling the decision of the independent prosecutors not to cut SNC-Lavalin a remediation agreement. Wilson-Raybould was then 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 Trudeau — over and over and over again.

Even if one were to accept Trudeau’s constantly changing explanations and justifications for his government’s actions on the SNC-Lavalin file, the end result is clear: The government attempted to exert influence on a judicial proceeding.

But SNC-Lavalin is far from an isolated incident; it is part of a disturbing pattern.

There also have been allegations of political interference in the criminal prosecution of Vice-Admiral Mark Norman. And after SNC-Lavalin, it is difficult to blame those who have a jaded view of the government’s protests of innocence.

Even before charges were laid, Trudeau was weighing in, saying, “This is an important matter that is obviously under investigation, and will likely end up before the courts.” It is completely inappropriate for politicians to comment or opine on the direction of a police investigation. But Trudeau doubled down and told a town hall audience that the Norman matter was going to end up before the courts — even though the RCMP was still investigating.

But this all made more sense after it was revealed that Trudeau, furious over cabinet leaks about the shipbuilding contract with Chantier Davie Canada Inc., was the one who pushed for the RCMP to get involvedin the first place.

Then, after Norman was charged, it was revealed that supposedly independent prosecutors were cozying up to the Privy Council Office to discuss courtroom strategy. And then the government resisted the disclosure of relevant documents to the defence — including a 60-page memo sent by PCO clerk Wernick to Trudeau — a memo that had been entirely blacked out.

“So much for the independence of the [Public Prosecution Service],” said Ontario Court Justice Heather Perkins-McVey. 

One could certainly be forgiven for being left with that impression.

And then Parliament, seemingly unable to untangle itself from the justice system, unanimously issued an apology to Norman.

And while the Norman leaks angered Trudeau and led to an RCMP investigation, it seems that Trudeau has given a pass to the “well-placed sources” who leaked confidential judicial information to the press in an ill-advised post-SNC-Lavalin-scandal attempt to discredit Wilson-Raybould.

The leaks allege that Wilson-Raybould wanted to nominate Glenn Joyal, chief justice of the  Court of Queen’s Bench of Manitoba, to the Supreme Court of Canada. Trudeau thought Joyal was too conservative. Joyal had been critical of an expansionist view of the Charter. He thought, as many do, that Parliament should make laws, not the courts. This is hardly a controversial belief, but from this Trudeau extrapolated that Joyal was not “committed to protecting rights that have flown out of interpretation of the Charter of Rights and Freedoms, particularly LGBTQ2 rights and even abortion access.”

A sitting judge was smeared and the legitimacy of the judiciary and the judicial appointment process was damaged — all because the government was angry with Wilson-Raybould.

But inappropriate political interference in the justice system doesn’t follow strict party lines. The Conservatives, who have long used the justice portfolio as a political weapon, desperately implored Minister of Public Safety Ralph Goodale to intervene in the Terri-Lynne McClintic case. McClintic, a child killer, was transferred to a medium-security healing lodge. The proper procedures were followed, but the Conservatives disagreed with the transfer and saw an opportunity to score political points. 

The last thing we should want is politicians deciding where individual offenders serve their sentences. But the Conservatives, adorably unaware of the hypocrisy they would set themselves up for, begged to differ. They placed their thumbs on the scales of justice and then Goodale capitulated and McClintic was moved to a different facility.

So, maybe, the Conservative outrage over possible political interference in the SNC-Lavalin and Norman cases was all just theatre. This is after all the same Conservative party that, under Stephen Harper,  publicly feuded with Beverley McLachlin when she was chief justice of the Supreme Court.

All the politicians are behaving badly and there is a huge cost. 

The legitimacy of our justice system is fragile. Pull on one thread and the whole thing can unravel. But, of late, our politicians are not content to simply tug at one golden thread. Instead, we have seen the prime minister and his well-placed sources pressure and smear Wilson-Raybould, comment on that ongoing investigation, stonewall the disclosure of information, resist independent inquires and throw a sitting judge under the bus. The opposition sought to micromanage correctional decisions and the government cowardly bowed to that pressure.

This is a dangerous precedent that risks undermining an important democratic institution. Because, when the public loses confidence in the justice system, when the RCMP becomes a pawn of the government, when prosecutions are built on politics and when we lose trust in judges, there will be no going back. 

We will be left slamming our fists in the dirt screaming like Charlton Heston in Planet of the Apes, “We finally really did it. You maniacs! You blew it up! Ah, damn you! God damn you all to hell.”

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.