The legal aid plan forces the litigant to give up asserting his rights. This is because the Quebec state forces lawyers to practice on a volume basis. A high-volume practice consists of quickly processing and settling a large number of files, in a short period of time. On the one hand, permanent lawyers have to deal with a large number of cases each year. On the other hand, lawyers in private practice are forced to process almost all files without a preparation budget, ie according to a flat rate (payable after the settlement of the file), which causes the volume.
The statistics are revealing. For example, in Quebec, for the year 2020-2021, the 18 lawyers in private practice who invoiced more than $140,000.01 to the Commission des services juridiques shared a total of 15,035 mandates. Or again, the 186 lawyers in private practice who billed between $50,000.01 and $100,000.00 shared a total of 65,245 mandates.
The current regime explains why the state underfunds the administration of justice. The latter manages to survive without reasonable funding only thanks to volume practices and the systematic deterrence of disputes. For example, the underfunding of the resources allocated overall to the operation of the Court of Québec, Criminal Division, is explained, in our opinion, by the fact that nearly 75% of its cases come under legal aid.
But it is when a litigant wishes to assert his rights that the machine malfunctions. The time to devote to the file then embodies the grain of sand in the gears. On the one hand, the permanent lawyer jeopardizes his objective linked to the “amount of work accomplished”. On the other hand, the lawyer in private practice must work for free since the preparation is not charged. It is therefore logical that very few lawyers accept legal aid cases where there is a dispute. This also explains the almost total disengagement of lawyers with special skills necessary for the holding of certain complex trials.
However, the fact that the state does not allow vulnerable populations to exercise a counterbalance against it creates systemic injustices, including the following:
over-judicialization due to excessive resolution of cases that would normally be contested or withdrawn;
an increase in abuses related to social profiling, which has a particular impact on vulnerable groups;
a likelihood that several miscarriages of justice will be committed, particularly in complex cases.
More and more litigants are postponing their cases, sometimes for years, in the hope of finding a lawyer who will agree to assist them effectively. Very often, these people end up resigning themselves and representing themselves. The current system is therefore also responsible for a waste of judicial resources and an absurd increase in delays.
The Quebec state must, at all costs, review the operation of the legal aid system. It must allow the litigant to quickly assert his rights — when this makes sense. By the same token, it must also hasten to correct the current situation and massively fund the entire administration of justice.
Otherwise, the protection of the public will continue to be at risk.