Unintended consequences must lead to increased legal aid funding
Troy Media - By Amjad Khadhair
Criticism of Bill C-10, the Safe Streets and Communities Act which has now become law, has for the most part centred around the supposed relationship between “tough on crime measures” and actual criminality.
There is, however, another reason Canadians should worry:
The extent to which its citizens have fair access to justice is one measure of a society’s adherence to the rule of law. Unfortunately, Bill C-10 will aggravate Canada’s current access to justice problem.
Raising the stakes
Like any human institution, the Canadian justice system is imperfect. Tightening punitive measures in a fallible system could aggravate the consequences of any error. While this may not be an issue of access to justice narrowly understood – as access to legal representation – it ought to still raise serious concerns about our system of justice in which access to justice is but one issue.
The stakes are especially high for aboriginal offenders, who are disproportionately incarcerated by our justice system. By reducing eligibility for conditional sentences, Bill C-10 may hinder access to more conciliatory approaches, like restorative justice, which sometimes depend on the availability of conditional sentences.
Over the long term Bill C-10 can be expected to increase the number of court appearances for criminal matters. Defence lawyers and their clients facing mandatory minimums and longer terms may have even less incentive to negotiate guilty pleas, and instead opt for – possibly lengthy – trials.
If, as some have suggested, mandatory minimums and longer sentences do contribute to recidivism and create “hardened criminals”, the increase in repeat offences will inevitably mean more criminal matters before more judges. Such an increase will only add pressure on our justice system already struggling with overburdened courts and lengthy delays.
Justice must be efficient and expedient. When it isn’t, the system imposes greater stress on individuals and jeopardizes time-sensitive legal matters. A legal matter can then start to feel more punitive than would have been the case, which can only foster greater public aversion towards, and cynicism about, the legal process.
Stretching resources thin endangers the rule of law
Given that most criminal offenders are from poorer socioeconomic backgrounds, more mandatory minimums and longer sentences will inevitably lead to an increased demand for legal aid – a service which defendants are typically entitled to when their liberty is at stake.
Even worse, without a significant infusion of new funding for legal aid, increased demand for criminal legal aid may reduce what is available for civil matters.
Ironically, because of Bill C-10, a wife who needs legal aid to divorce her abusive husband may be less likely to receive it than her spouse who requires counsel to defend himself from the charge of abusing her.
According to MP Kyle Seeback, Bill C-10 warranted public support because those “who are victimized or threatened by crime deserve their government’s support and protection.” Sue O’Sullivan, the new federal Ombudsman for Victims of Crime, justified her support in a similar way.
Ironically, while Bill C-10 was passed to support victims of crime, it may now indirectly harm (among others) those low- and middle-income victims seeking civil legal redress.
As a matter of ethical consistency, it is incumbent that the federal government improve access to justice in Canada by, for example, expanding legal aid and considering more innovative measures like legal expense insurance. Otherwise, greater demand for dwindling legal resources will negatively impact all Canadians in the long term, including the very victims of crime the government claimed it intended to assist with enactment of this legislation.
Legal aid and other efforts to improve access to justice are costly, but without a robust commitment to them we risk furthering injustice and endangering the rule of law in an ill-considered effort to get tougher on crime.
Amjad Khadhair is an intern with the Sheldon Chumir Foundation for Ethics in Leadership.