The solution to this challenge, according to the Review, is to expand the number of individuals who receive free legal services, in many instances without any examination of whether the person has the ability to pay. This is indeed a curious departure from the traditions of legal aid in Ontario. Free legal aid should be granted only to those who can demonstrably pay nothing. The moving force behind this radical change is the unrepresented litigant. In criminal law, this has resulted from the changes in financial eligibility and offences covered.
Applicants now can have fewer funds available to qualify.
Others do not face incarceration and accordingly do not qualify regardless of finances, regardless if their offence is indictable. The Criminal Lawyers' Association urged the Review to identify the reason that accused persons were appearing unrepresented in criminal courts and to attempt to identify whether they would have been unrepresented before the decimation of the tariff in 1996. Instead, the Review looked in total at those unrepresented accused without differentiating. What was missed at the outset is that from the perspectives of the Courts and the prosecution, it is really immaterial why an accused person is unrepresented. In the continuing fallout from Askov , what is wanted and in some cases required, is counsel to stand up with an accused in first appearance court, walk the accused to the resolution Crown and then to the plea court.