Proposed Bill 161 not good news for low-income Ontarians or legal aid clinics, says Mike Shain

Michael Shain

AUNDECK OMNI KANING – The executive director of the Manitoulin Legal Aid Clinic doesn’t expect the proposed new Bill 161, Legal Aid Services Act, 2019 will be good news for low-income Ontarians and legal aid clinics.

“I don’t think this is going to be good news,” said Michael Shain in an interview with the Recorder. “I don’t think anyone knows what all of this will mean. And I don’t think it will provide a resolution to all the concerns. And as they say, the devil is in the details.” 

“You just have to take a look at what all the professors are saying,” noted Mr. Shain.

Mary Gellatly of Parkdale Community Legal Services, in an email to Mr. Shain dated March 11, wrote, “I’m following up on the (Association of Community Legal Clinics of Ontario) update on Bill 161 that we received March 6.”

“Law professors Janet Mosher and Amar Bhatia released a brief on the proposed new Legal Aid Services Act, 2019 (Schedules 15 and 16 in Bill 161),” wrote Ms. Gellatly. “This report was endorsed by 38 law professors from across Ontario. It is full of excellent research that people may find useful in their submissions on Bill 161.”

In a Toronto Star article dated March 10, it was reported that the Ontario government’s proposed changes to the legal aid system, “will have profoundly negative impacts” on the people served by the province’s community legal clinics, according to the report endorsed by the law professors from across the province. The lawyers’ report urges the legislature to reject the government’s proposed legislation. Instead, the authors call for “public, meaningful and open consultation with low-income and marginalized communities and their clinics about needed reforms to the legal aid system in Ontario.” 

In the executive summary of the lawyers report it states, “Schedule 16 of Bill 161, the Smarter and Stronger Justice Act, will replace, if passed, the Legal Aid Services Act, 1998 (LASA 1998) with a new Legal Aid Services Act, 2019 (LASA 2019).

The bill, if passed, will have profoundly negative impacts on the clients and communities served by Ontario’s community legal clinics and community-driven boards, they argue. These clinics engage in “clinic law” through: the determination of their communities’ legal needs; the provision of individual and collective legal services to provide access to justice in numerous and intersecting areas of law; and the development and reform of the law as it systemically affects low-income and other disadvantaged communities. 

“Bill 161 seriously weakens the ability of community legal clinics to engage in meaningful, sufficiently funded legal work to address the everyday violations of legal rights of low-income individuals and disadvantaged communities.”

“More particularly, if passed, LASA 2019 will significantly limit the scope of clinic law services in Ontario and thus fundamentally change the statutory mandate of community legal clinics; dramatically alter community legal clinics’ ability to engage in systemic law reform and community organizing aimed at the roots of low-income people’s everyday legal issues; weaken the ability of community legal clinics and their independent boards to adequately determine and respond to the needs of low-income and disadvantaged communities; and diminish opportunities to educate future lawyers in community-based advocacy.

“Furthermore, there is reason to believe that additional restrictions on the structure and scope of community legal clinics would flow from the implementation of LASA 2019 given the provincial government’s recent cuts to the legal aid system, the limitations placed on law reform and community organizing work during Legal Aid Ontario (LAO)’s implementation of these cuts, and the stated goal of the ongoing (and confidential) ‘Legal Aid Modernization Project.’ In particular, Schedule 15 of Bill 161 will cancel all existing funding agreements between community legal clinics and LAO, which must be renegotiated within six months of the bill coming into force. There is serious concern that such high-pressure, behind-the-scenes negotiations will result in further restrictions on clinic practice, funding and independence,” the professors’ report explains.

“In summary, LASA 2019 will limit the capacity of legal clinics and their boards to properly assess and address community legal needs, and the government’s approach will deepen and extend poverty and marginalization in the province. We strongly recommend that the Ontario Legislature reject Schedules 15 and 16 of Bill 161 and instead engage in public, meaningful and open consultations with low-income and marginalized communities and their clinics about needed reforms to the legal aid system in Ontario.”

The report noted as well, “LASA 2019 is not an improvement on LASA 1998. Indeed, from the perspective of providing community-based legal aid services, it is a serious regression from the model praised by the McCamus Review and the academic literature. The proposed legislation will strip out the very purpose of legal aid in favour of a dollars-and-cents approach to the lives of low-income people. By narrowing the definition of “clinic law” while expanding the discretion of Legal Aid Ontario to determine legal aid services, it will restrict the scope of existing clinic services.”

“This short-sighted approach threatens the basis of our legal aid system and will lead to more Ontarians losing access to basic rights in a context of growing income inequality,” it continued.

Mr. Shain noted there has been no response from the Attorney General. 

The Standing Committee on Justice Policy was to meet to consider Bill 161 and had intended to hold public hearings in Toronto on March 23 and 24.