Legal aid for criminal law matters in Ontario: moving beyond the “loss of liberty” test

by Nye Thomas

In consultations with justice partners and LAO’s advisory committees, Legal Aid Ontario heard again and again about the need to expand criminal certificates beyond the “loss of liberty” test — largely because the impact of criminal conviction is much greater now than in recent years.

We’ve responded to these concerns by expanding certificate services into new substantive areas of criminal law and to areas that have not been covered by LAO or its predecessor agency since the 1990s.

More help for first time accused

For criminal accused, a first conviction can be a life-changing event even if the person does not go to jail. The consequences of conviction go far beyond the criminal justice system.

Why? There are many reasons. For example, many employers now ask for a criminal record check as a condition of employment. A criminal record can also prevent a person from travelling outside the country, hinder a person’s educational opportunities, prevent a person from volunteering, or have consequences for family court proceedings, to name but a few.

A criminal record—even for a minor criminal offence—can also have very serious consequences in the event a person is subsequently charged with another criminal offence.

Many accused facing their first criminal charges are either un-represented or under-represented. Full legal representation, including the ability to go to trial, is necessary to ensure these proceedings are fair and just.

Vulnerable client groups were identified as particularly important for LAO to focus on, on the basis that they face additional barriers to access to justice. To address these legal needs, LAO is now issuing certificates to financially-eligible first-time accused who:

  • identify as First Nation, Métis or Inuit
  • are dealing with mental illness or addictions
  • are experiencing domestic violence and charged with an offence related to their partner.

This initiative is just a first step. LAO will consider expanding coverage for first time accused in the future as resources permit.

Secondary consequences to criminal convictions

LAO is also expanding criminal certificate coverage for accused who face serious “secondary consequences” if they are convicted. These are circumstances in which an accused is unlikely to go jail if they are convicted but who might:

  • lose a job, professional accreditation, or eligibility for public housing and/or social assistance;
  • lose an educational opportunity that might affect their future employment;
  • be deported from Canada; or,
  • lose access to his or her children.

Ensuring fair and just legal proceedings

LAO’s criminal law initiatives provide full legal representation (up to an including trial) to eligible clients at crucial “tipping points” in the lives of low-income Ontarians charged with criminal offences. Our plan extends certificate services to ensure full representation for first-time accused and for accused facing serious secondary consequences. Low-income accused in these situations will now have full representation to ensure their proceedings are fair and just.

Visit our backgrounder detailing these initiatives to learn more.

Nye Thomas is LAO’s Director General, Policy and Strategic Research. Nye has been leading LAO’s financial eligibility project.