Yves Jubinville has spent about 125 hours working to prevent his client — a poor and mentally ill Hawkesbury man — from paying $700 in mandatory victim surcharges.
It’s work that would usually net the defence lawyer about $14,000. So far, though, he’s done it almost entirely for free.
Jubinville is among several lawyers who have taken to fighting the mandatory surcharge for next to nothing after applications for additional funding for constitutional challenges to the controversial surcharge have been rejected by cash-strapped Legal Aid Ontario.
Jubinville says it has pitted him and his client, Daniel Larocque, against a team of at least seven well-paid government prosecutors with seemingly unlimited resources for prosecuting and defending the constitutionality of the victim surcharge, while Jubinville’s application for special test case funding was rejected because he was told there wasn’t room in their budget for the costly legal fight.
Legal Aid Ontario’s current block rate for constitutional challenges is $282.50, Jubinville said, or approximately enough to cover two-and-a-half hours work.
Jubinville says that’s a problem.
“How is that a fair battle? How is that access to justice for people who don’t have the money to fight?” said Jubinville, who will learn in August whether he was successful in having the surcharge declared unconstitutional. “It’s David versus Goliath.”
Another lawyer, Paul Lewandowski, has launched a constitutional challenge on behalf of a deaf panhandler facing a $100 surcharge he says he can’t afford.
Lewandowski said he and his client, Tim McCooeye, felt strongly about wanting to challenge the surcharge.
“I think there is a greater public good that is going to be served,” said Lewandowski. “I do feel strongly that the law is poorly crafted, ill-conceived, and Mr. McCooeye exemplifies that.”
Legal Aid Ontario couldn’t speak to Larocque’s case specifically, but said the constitutionality of the mandatory surcharge is an important issue. A Legal Aid Ontario lawyer argued one of the first successful constitutional challenges to the law in Cobourg, said Wayne van der Meide, the regional manager who oversees the test case program.
The test case program provides funds for cases that Legal Aid Ontario characterizes as having broad implications for low-income Ontarians or disadvantaged communities. The potential cost of any application is weighed against the potential benefits, Legal Aid Ontario said.
Not all cases are accepted.
“As a publicly-funded organization, LAO has finite financial resources. We must carefully choose the test cases we can support. We focus on cases we believe will have broad implications and are likely to have the most impact on low-income Ontarians,” van der Meide wrote in an email.
Jubinville said he believes the mandatory victim surcharge meets that threshold.
“That is a concern to me because it is a quite serious issue that needs to be in front of courts, and that really touches every single convicted or discharged person,” he said. “Every client I have is facing the victim fine surcharges.”
Jubinville said it was “absurd” to believe that someone like his client could fight such a complicated legal challenge on his own.
“It’s another example of inaccessibility to justice for people who don’t have money. If I didn’t do it for free, he obviously doesn’t have any means to pay for it himself and he doesn’t have the capacity to do it himself. So what does he do? He gets $700 to pay within 30 days and that’s the end of that,” said Jubinville.
But lawyer Stuart Konyer, who is president of the Defence Counsel Association of Ottawa, said Legal Aid Ontario is not the “bad guy.”
“Legal Aid didn’t create this mess. It’s hard to fault them,” said Konyer, who called the mandatory surcharge “a bad law from the government” and a “terrible piece of legislation.”
“They don’t have enough money to cover serious cases where people are facing significant jail terms if convicted, so you can understand why Legal Aid looks at fighting the surcharge perhaps as not their top priority,” said Konyer.
Konyer said his association is working with Legal Aid Ontario on a strategy to share resources and ensure some limited funding is available for challenges to the victim surcharge.
Legal Aid Ontario said they have plans to relaunch a more robust and revitalized test case program in the fall.
Konyer, who himself has two destitute clients who are launching constitutional challenges to the law, said defence lawyers often spend many more hours than what they are paid for on Legal Aid work.
Challenging a law like the mandatory surcharge even though there are no guarantees of getting paid “is the right thing to do for a lot of the clients,” Konyer said.
“We believe everyone should have equal access to justice and we aren’t going to stand by and watch poor people get railroaded,” said Konyer.
