Law Times

Page 6 JUNe 16, 2014 • Law Times www.lawtimesnews.com COMMENT Keep promise to take action on records ith news in 2012 that alleged Eaton Centre shooter Christopher Husbands had been working with chil- dren for the City of Toronto despite having a criminal record, it's not surprising authorities have erred on the side of caution when it comes to vulnerable sector checks. Of course, the other side of that issue has emerged recently with the Canadian Civil Liberties Association releasing a report decrying the ex- cessive tendency to release non-conviction information, such as police interactions in mental-health cases and withdrawn charges, in vulner- able sector checks. While Husbands' case actually involved a conviction, the response from the city was to tighten up the process that left it to new employees to turn over their reference checks and gave them up to three months to do so even as they began their jobs. The move, which was cer- tainly understandable, follows a trend noted by the CCLA of increas- ing reliance by employers on criminal background checks that too often lead to the release of both conviction and non-conviction records. It's an issue that pits safety against privacy and human rights. But with recent attention to the issue, Ontario's three main political par- ties have been promising to take action. There's good reason to remain skeptical given the likelihood Ontario's re-elected Liberal government will err on the side of caution, but it's good to see a fair prospect of action on the matter. Certainly, the CCLA has provided a possible way for- ward by looking at the B.C. model that provides for a centralized pro- cess for conducting vulnerable sector checks and assessments. It helps Legal aid among budget winners as Wynne re-elected hile there was lots to de- bate during the recent election campaign, it was clear that, beyond a little- noticed item in the May budget, justice was virtually absent among the issues discussed by the parties. Anyone who spends time in the halls of justice knows all is not well within Ontario's court system. On the criminal side, those accused of crimes are at a real disadvantage un- less they're essentially penniless and face jail. As the Criminal Lawyers' Asso- ciation noted in announcing its alliance with legal aid lawyers a few months ago: "If you want to assert your innocence by having a trial and you make more than $10,800, you are ineligible for legal aid. However, if you make $18,500 you can receive representation to plead guilty." It's not a very nice choice. And even those who qualify for legal aid find their counsel have a limited number of hours they can bill. Legal Aid Ontario issues some 100,000 certificates each year for a range of matters. Less than two per cent of cas- es involve major crimes and trials. Many deal with petty street violence and drugs and often involve those with substance- abuse and mental-health is- sues as well as other social burdens. There was a little-dis- cussed provision in Premier Kathleen Wynne's defeated and now-revived budget that would have raised the threshold for legal aid eli- gibility. Anthony Mousta- calis, president of the CLA, notes the Liberals reiterated their intent during the cam- paign without specifying the planned income cutoff. "Government math is a little differ- ent, but it looks like it would put another $150 million of funding over 10 years of which some $100 million would be in the first three years," he says. "That would add another million people to be eligible and double the number of certificates." Change is long overdue. Legal aid thresholds have been the same since 1996. By comparison, Alberta's thresh- old is $16,760 while British Columbia's is $17,760. The 2011 auditor general's review of government agencies noted LAO had struggled with an $8-million deficit de- spite its $354-million budget of which 76 per cent came from the province with the balance funded by the fed- eral government and the Law Foundation of Ontario. "Ontario has spent more on legal aid support per capita than any other prov- ince, though it has one of the lowest income eligibility thresholds and issues fewer certificates than most other provinces," the report stated. The good news is that since then, Mous- tacalis notes, LAO has cut overhead and is making progress even though many issues remain. "We still have a lot of concerns about people who are racialized and First Na- tions and many times who are first of- fenders and have no risk of going to jail. So they don't qualify for legal aid because one of the requirements is that they must have a threat to their liberty," he says. "The trouble is, as we've seen recently, a conviction, or even if the charges are dropped, could mean they lose their job or have trouble seeking employment later." Legal aid, of course, is a social program aimed at ensuring low-income people can have access to a similar level of legal counsel as someone who earns more. "The importance of a lawyer is that they can work with the prosecutor to make alternate arrangements and have the charges dropped," says Moustacalis. "Many of these people can't do that. They'll just plead guilty." Legal aid lawyers also criticize the one-size-fits-all approach that caps the number of billable hours at each stage of a file, especially since the restrictions ignore the demands imposed by the Crown and the courts that have doubled the amount of time required to manage a case. As usual, it all comes down to money. It's a shame the Liberals wasted so much of it on more politically visible issues like cancelling gas plants and subsidiz- ing leases. But with Wynne's victory, lawyers should at least see some improvements on the legal aid file. LT uIan Harvey has been a journalist for 35 years writing about a diverse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers.com. ©2014 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, com- pleteness or currency of the contents of this pub- lication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. 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Police quite reasonably note that they need ac- cess to information on issues such as a previous sui- cide attempt as it helps to determine their response when dealing with future calls. But keeping track of that information doesn't necessarily mean putting it into multiple databases or disclosing it in vulnerable sector checks. That's why we need clear guidelines across the various authorities and agencies to set out what information they can collect and how and when they can — and can't — disclose it. The Liberal government needs to follow up on promises to take action on this issue. — Glenn Kauth W W Queen's Park Ian Harvey

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