'Smarter and stronger'? New law is really a cruel gutting of access to justice for the impoverished

This column is an opinion by Michael Spratt, a partner at the Ottawa criminal law firm Abergel Goldstein & Partners, former vice-president of the Ottawa Defence Counsel Association, former Criminal Lawyers' Association Board member, and co-host of the legal and political podcast The Docket. For more information about CBC's Opinion section, please see the FAQ.

It appears that Ontario's Attorney General, Doug Downey, is a quick learner. The old saying isn't true, an old dog can learn new tricks.

After a rocky summer where Downey took political heat for slashing legal aid funding and publicly musing about messing with Ontario's judicial appointment process so he could more easily pick judges who reflect his values, Downey has finally learned to stop being so transparent.

It's a play right out of the Doug Ford handbook — don't listen to the half-truths he says, instead take a close look at what he actually does.

You see, Downey was all smiles this week when he introduced his signature justice legislation, the Smarter and Stronger Justice Act, billing it as a fix for Ontario's complex and outdated justice system. He said it would improve legal aid services and enhance access to justice.

Downey also announced that following this year's $133 million legal aid cuts, the government has decided not to pursue further funding reductions.

It all sounded like a breath of fresh air. But the devil is in the details.

It's true that Ontario's court system is in desperate need of modernization. In a damning report, Ontario Auditor General Bonnie Lysyk described a justice system that is outdated and inefficient.

She found that Ontario's jails have never been more crowded with people waiting for trials, yet our courtrooms are only used an average of 2.8 hours per day. Delays plague the system, and despite spending more money on Crown Attorneys, cases are taking about 10 per cent longer to complete than they did four years ago.

And unlike other jurisdictions, our court system is stuck in the 1970s. In 2018-19, almost 2.5 million documents were filed in Ontario's courts – more than 96 per cent of them on paper.

The utter failure of the double Ds – Doug Ford and Doug Downey – on the justice front has resulted in court delays, wasted money, and decreased access to justice.

So, back to Downey's new legislation.

Contrary to Downey's claims, it is devoid of any meaningful measures to move Ontario's justice system into the 21st Century. Under Downey's rule, the fax machine is still king of the courtroom.

But even more duplicitously, despite walking back $30 million in planned cuts to Legal Aid Ontario (LAO), Downey's legislation is a Trojan horse for his ultimate goal – a cruel gutting of access to justice for the impoverished.

You see, the Smarter and Stronger Justice Act fundamentally changes the purpose of the legal aid system.

Downey's new law literally replaces LAO's current goal, providing high-quality legal aid services to low-income individuals, with a new goal of ensuring value for money.

The new legislation also allows the government to more easily stack LAO's board of directors with hand-picked appointments. And if we have learned one thing about the Ford government, it's that it loves unqualified patronage appointments.

Most insidiously, buried deep in Downey's legislation is the downloading of millions of dollars of costs, currently borne by the government, directly onto LAO's shoulders.

There are a number of circumstances right now that allow a court to order the government to pay legal costs to victims, to youths, to amicus curiae, or to those denied legal aid but in need of a lawyer to ensure fair trial. And these appointments are happening more frequently as LAO tightens its belt and denies assistance to more and more people.

The Ministry of the Attorney General used to pay these costs when it was ordered to do so by a court. But not after Downey's new bill.

Much like Trump wanting Mexico to pay for his ill-conceived border wall, Downey's legislation says that, "Despite any order of a court requiring that the cost of providing services … be borne by the Attorney General of Ontario or the Crown in right of Ontario, the cost of providing the services shall be borne by [LAO]."

[Editor's Note: After this column was published, the Ministry of the Attorney General contacted CBC News and said that notwithstanding the wording of the Act, "The government will continue to cover the costs of court-appointed counsel at the legal aid rate. The Ministry of the Attorney General has provided Legal Aid Ontario with assurances that the funding protocol which has been in place between the Ministry and LAO since 2007 will continue, whereby LAO oversees the logistics and administration of payment to counsel continues and the government continues to cover the costs."]

The impact of this constitutionally dubious immunity clause would allow the downloading of millions of dollars in additional costs, probably more than the cost of the abandoned legal aid funding cuts, onto the backs of the very organization tasked with assisting Ontario's poor and marginalized populations.

And as Legal Aid Ontario pays more of these shifted costs, it would have less money to help impoverished accused … which would lead to more court-ordered costs and even less money to help the poor. It's a destructive feedback loop that would crush Ontario's legal aid system.

Downey says his new bill will modernize the courts, but it won't.

He says his new bill will increase access to justice, but it won't.

He says his new bill will strengthen legal aid, but it won't.

In fact, Downey has actually done the opposite. He did it quietly and covertly. And he proved that Doug Ford's dog can learn new tricks.

• This column is part of CBC's Opinion section. For more information about this section, please read our FAQ.