Omar Ha-Redeye

2Hi, Pulat. Thank you for having me.

4I'm doing well today. How are you?

7Yeah, thank you. I mean, I think you're right. We've known each other in many different contexts over the years. And we did a podcast as well on that site. We thought about doing video interviews as well. But I think, you know, given the time, that probably would have been a little bit too cutting edge. And quite frankly, as law students, we probably had to do some studying to get through law school effectively. So there was only so much we could do. It's great that you're doing this project and I look forward to your future episodes as well.

9And you're a big shot civil litigator. So look how far we've all come.

12Yeah, I don't think it's that simple, unfortunately, Pulat. I don't want to be constrained in that way. And I don't see these as being separate initiatives either. So a lot of what we're doing right now at the Durham Community Legal Clinic brings together many of those experiences and many of those projects that I've been involved in over the years. In particular, technology. I think this is going to be a crucial juncture for legal aid services and for clinics across Ontario. We are facing pressures from our funder under the guise of what's called modernization. And so our funder is expecting greater accountability, and part of that accountability as it relates to taxpayer dollars is whether or not we can improve our processes, do things better, and perhaps do it with some technology.

13And so can we actually provide taxpayers better value and better services to the public through technology? I strongly believe that we can, and we have a number of initiatives already underway at the Durham Community Legal Clinic that utilize and employ technology to help facilitate that.

15So all of the community legal clinics in Ontario, or I should say the 72 community legal clinics in Ontario, are funded primarily by Legal Aid Ontario. Okay, there are a few other clinics that have different funding that are focused on more specialized areas or different subsets of the law, but we are primarily funded by Legal Aid Ontario, which gets its money from two major sources. So the Ministry of Attorney General and then the Law Foundation of Ontario. The Law Foundation of Ontario, as many of us will know, gets their money from the interest on money in lawyers' trust accounts. And from that money, they fund projects like CanLII. They also fund the Legal Aid Ontario and the community legal clinics as well.

16So That's all very, very important to keep in mind, that we are part of that public interest and public-facing aspects of our legal system where we're trying to not just litigate. So we obviously represent clients, but we frequently engage in public legal education and providing legal training and providing resources to the public, and it's very much part of that same ecosystem of the Law Foundation, of Legal Aid Ontario, and even CANLII for that matter.

18So the main focus is to assist the low-income individuals in Durham region, which is a very large region, with their legal issues. Now, the best way that we can assist them is not just by looking at their immediate issue. So for example, it's very common, the vast majority of our files are in housing. So people getting evicted is a major, major issue, especially during the pandemic. And so the question shouldn't just be, okay, so you're being evicted, how do we actually mount a defense or a response? It's also looking at the root causes of that eviction, especially where these individuals are in poverty, and saying, are there ways that we can get you some job retraining?

19Can we find you some additional resources? Are there employment services that can be of assistance? If you have some substance abuse problems or mental health issues, are there some resources like that that we can help you with as well? And so using this holistic approach towards individuals' legal problems is the way that we really try to address poverty alleviation. And so it's not just legal issues for low-income individuals. It's the socioeconomic issues of individuals who are living in poverty that we are trying to address.

21Certainly, we are one of the very, very important institutions that help alleviate poverty. The origins of the clinics go back— or the clinic system go back to the '70s. So there's a very, very long history there. And part of the rationale there, beyond just poverty alleviation, is that we also do law reform. And provide submissions to the government in terms of various legislative changes because what we do is we give a voice to low-income individuals and a lens, a poverty law lens, to the legal system and the legal issues that we're facing. And so, you know, Pulat, we both know, we've heard this concept of access to justice being bandied around now for years.

22And so Chief Justices from the Supreme Court of Canada all the way to the Court of Appeal to Superior Court of Justice in Ontario they all recognize that we have an access to justice crisis. We hear everybody talking about that. The difference is the access to justice crisis for most Canadians is very, very different than it is for those who are living in poverty. In other words, it's not even a crisis. Access to justice doesn't exist. There is no justice in these people's worlds and in their lives. The legal system, and quite frankly, from their perspectives, the system as a whole has operated wholeheartedly and consistently to keep them in poverty, to keep them marginalized, and to keep them from fully participating in society.

23And so that is really what we're trying to transform. It's more than just, like I said, the legal issues. Poverty alleviation is about transformation of the living circumstances that individuals in poverty are experiencing.

25So it's probably useful for everybody in the public to be aware of this, but these negotiations are ongoing. Bill 161, which was passed earlier this year by the provincial government, effectively cancelled the contract between Legal Aid Ontario and every one of the 72 clinics in Ontario as of April 2021. So as of April 2021, we no longer have a funding agreement, we no longer have a contract with LAO. The rationale— don't get too alarmed— the rationale there is that we are going to be in negotiations with our funder as to what a funding agreement looks like. And so those metrics and that type of transparency is still very much up for discussion. So I'm hoping that conversations like the one that we're having here, Pulat, will inform those conversations.

26It's very important for not just the public, but for the legal industry to be aware that those conversations are happening, because we do provide an enormous benefit and enormous function to the legal system as a whole. And so if they're not aware, or if they're oblivious as to what's occurring right now in the clinic system, they may not recognize the pressures that we're facing. And very briefly, what I'll do is try to illustrate how we benefit, for example, the legal system. We all know some of the challenges that we're facing with self-reps generally, right? And that's part of the access to justice justice challenge. But when you're dealing with self-reps who are in poverty and may also have some mental health issues and/or some substance abuse issues or just issues related to poverty, because those individuals have very complex life experiences, when they are self-representing, it's an entirely different experience.

27In other words, the nonappearances to courts are significantly higher. The literacy level, so legal literacy and financial literacy, is often impaired. The ability to actually negotiate and to abide by an agreement may be compromised. And so having legal representation, which is part of what we do in that process, it usually facilitates and expedites the proceedings. It allows for counsel on the other side of a matter to actually have an individual who can help facilitate a discussion and a negotiated settlement. It allows, if it's not going to be settled and it's going to be litigated, It allows for the trier of fact. It allows for a judge to have coherent and organized legal arguments presented before them.

28And that's not necessarily— I mean, there's very, very sophisticated self-represented litigants out there. Most of them are not in the type of poverty and the type of circumstances that we see our clients in. And so those are the ways that we actually help facilitate access to justice and ultimately benefit the broader legal system as well.

30Certainly, yes.

32Our clinic does, yes. Personally, I don't, but our clinic certainly does. We have quite a bit of volume at the landlord-tenant board.

34So we also cover what we call social assistance. So that would include Ontario Works, ODSP, so people who are receiving government assistance. CPP overpayments, things like that. We do employment law, we do human rights, we do WSIB, and those are all part of the core clinic activities. We also have an Access to Justice Hub, and through that hub we have a year-long tax clinic, so a free tax clinic to any of the members of our community. And then we also provide additional legal services, for example, in small claims, in POA, and other legal services. And those legal services are beyond LAO. And so this is where we have a clinic plus model. We have LAO funding to fund our core services, but we offer some additional services beyond that in the interest of facilitating access to justice, even for those individuals that are above those LAO thresholds, because the financial eligibility for LAO is very low.

35It's in fact below the poverty line in most circumstances.

37So we use some creative arrangements for that to happen, and a big part of that is partnerships with other members in the community, other community agencies, quite frankly. So we have John Howard Society, we have Durham Mental Health Association, we have the Brain Injury Association, we have CDCD, We have a whole bunch of different organizations that actually, outside of the pandemic, provide on-site legal resource— or on-site social resources in the legal context. And there's also a very close partnership with the Region of Durham, so we have a good working relationship with them, and Durham College. Durham College is our local community college. They provide paralegal students. Those students do their placements at our clinic, and they also provide them legal services under supervision.

38It's a pretty complex arrangement, Pulat, so there's no simple answer as to how we do this quote-unquote extracurricular activities, but it is very much part of what we're trying to do to transform the community that we're in.

40We can, yes. We are a registered charity. We have been for decades, as far as I know. The clinic has been around for 35 years. It's our 35th anniversary this year. And has been a registered charity for much of that time.

42Certainly, yes. Not all community legal clinics are registered charities, but quite a few of them are. So, you know, we're certainly not going to say no to that money, and more importantly, we intend to put that money to good work. We are probably the most efficient use of taxpayer dollars in the system generally. So if we look at provincial funding, every $1 that goes to Legal Aid typically has about $16 of return for taxpayers because again, through poverty alleviation, we're actually doing all kinds of things such as getting people to file their taxes and then, for example, they're able to get the Canada Child Benefit tax. Okay, and then they can spend that money for their rent, for example, or for groceries or for other types of things.

43And so the services that we provide really have a magnification effect. And so if we're doing that with taxpayers' money, I think that donors as well would know that we're able to use that money effectively as well along the same lines for similar purposes.

45We certainly have a lot of support throughout the legal community, but in particular the judiciary, right? As you pointed out, the difference here is that the judiciary cannot be involved in social and political issues. And so when it comes to these broader discussions that we're all having about funding of community legal clinics, members of the judiciary are not involved in that. What might be worth remembering is that it wasn't that long ago, so it was a couple decades ago, when the Law Society of Ontario actually used to fund Legal Aid Ontario or fund the legal aid services in the province. So the history, our history prior to this being carved out by Legal Aid Ontario and having a separate agency, was that the bar, so the members of the legal community themselves, took direct responsibility for ensuring that these types of services were being provided.

46Now granted, it was a smaller society at that time, a simpler society perhaps, and there was a lot less members of the legal community, so maybe a little bit easier to organize in that respect. But if you look at our history and our traditions for the past 50 years at least in Ontario, there has always been a sense of responsibility for ensuring that this type of system is maintained. With the cuts that we've seen last year from the provincial government, many of those services have been compromised. We've all had to cut back on some of our services. And so I think it is an opportunity for many of us to do what we're doing here in this conversation, Pulat, which is to remind the legal community of the importance of the services that we provide, not just as we sort of alluded to in terms of poverty alleviation, but also to the integrity of the justice system as a whole.

48So let me clarify here. I, I think what I said was that the perception of our many of our clients is that the system was designed in that way. I think to a certain extent, there are some inequities in our system. We know that the legal system generally favors property holders over people who are not property holders. That's very much entrenched in terms of historical aspects of the law. The common law itself was very much rights-oriented towards those who had power. It was the Courts of Equity that really looked at those exceptions and created the softness, if you will, of the common law that looked at things like duress or undue influence and power imbalances.

49And ultimately, when we're looking at poverty, that's what we're talking about here is power imbalances. And so it's not that the law cannot address aspects of power imbalances or poverty within the legal system. It's that there are so many aspects of it that were not structured in a way to do so. In terms of broader society at large, I don't know. I mean, I think less so than perhaps other capitalistic societies. I'm not anti-capitalistic. but less so than other capitalistic societies, we do have a social welfare system. We do have a social safety net. And for many of our clients, that social safety net hasn't operated effectively for a number of different reasons. Some of it may just be that they don't know those resources exist.

50And so a big part of what we do is helping to facilitate those transfers and those introductions to ensure that they actually access services that historically they haven't been able to. But part of it is also distrust, right? So if you see the society that you've grown up around as being always against you, always shutting you out, not lending a sympathetic ear, then you're much less likely to consider that a partner, a community partner like a community legal clinic, is going to also assist you given the history of your experiences. What's different with what they do with us is that they come to us with a legal problem. So I'll use a different situation, right?

51So let's say someone had a job, it wasn't a very well-paying job, they were being harassed on their job and maybe being paid less than minimum wage illegally. And they come to us for help because they're in dire circumstances and situations. So this is before they're getting evicted, 'cause that's what's gonna happen down the road, of course, okay? This is before all the other problems in their life, that are gonna emerge, start to emerge, and we can jump in at that point in time and have conversations with them because of the solicitor-client relationship. In other words, let me put this differently. They may not be willing to talk to a social worker. They may not be willing to talk to the local aid worker.

52They may not be willing to speak to government agents or officials, okay, that might be operating in Service Ontario, Service Canada, to explore what services or benefits might be available because of the inherent distrust that they have accumulated over their lifetime. When they come to us with a legal problem, those boundaries and those barriers have to fall. I'm not saying it happens in every case, but in order for them to have effective legal representation or to obtain effective legal services, they need to recognize that everything that they share with us is confidential, first of all, is not going to be shared with anybody else, and then that allows them to start talking. And once they start talking, we begin to understand the fulsome nature of many of their circumstances and complexities and issues that they're facing, and then start to develop a relationship.

53And it's with that relationship that we can then encourage them to access other resources. That doesn't happen outside of the solicitor-client relationship. And I'll use a little bit of an analogy here for you, Pulat, which is going to be the Insite case, so PHS case that went up to the Supreme Court of Canada a few years back. And if you recall, the federal government was very much opposed to having safe injection sites because they felt that that circumvented their criminal law jurisdiction, whereas the provincial government was saying, "No, this is a health and safety issue." And it's one of my favourite cases to use to help illustrate this because Nobody wants to feel as if we're encouraging or promoting the use of intravenous drug use recreationally and all of the whole host of social and, quite frankly, economic and legal issues that typically fall or flow from that.

54Okay? But what the evidence was from the community agencies that were doing these safe injection sites was very different. And it was a similar narrative of what I've described to you here about the facilitation of a trusting relationship that allowed them to take these intravenous drug users and allow them to get help, get the counseling, and get the drug use problems under control, and to ultimately get them to be more productive members of society. What that case also, though, illustrated was that about 75%— I think that's the numbers that I'm recalling— of all of those intravenous drug users were the victims of sexual abuse. Okay? And quite often the victims of sexual abuse during childhood.

55All right? And I say this because it helps contextualize individuals who are in different difficult life circumstances. It's very easy to disregard or brush off and discount individuals who are not just intravenous drug users, but people who are homeless, or who didn't graduate high school, or who really haven't accomplished the types of things that you and I have in terms of our lives, in terms of getting university education and not just one degree but multiple degrees and ultimately getting a law degree. So for many of us in the legal profession, it can be challenging to relate to individuals who have continued to live all the way into their adulthood in circumstances where it doesn't look like they have accomplished or achieved much.

56But once you start peeling back those layers and once you begin to understand that at the root cause of many of these people's lives are some very, very deep and horrific traumas, OK, including sexual abuse. It's not uncommon. And starting quite often in the home, right? So very close family members who may have initiated this. We begin to, I hope, have a little more compassion and sympathy for the circumstances which people have found their lives in. It's not that they chose to go a certain path and to end up in the circumstances that they were in. It's that when they were quite often in very vulnerable circumstances and situations in their life, other individuals took advantage of them.

57And those other individuals may still continue to take advantage of them. So we've seen, for example, during the COVID-19 pandemic, that there are tenants who have had landlords approach them and say, well, you know, I understand that you lost your job, you can't pay rent, and that's a very common situation that we're seeing right now, and And it's not to say we don't sympathize with landlords in regards to their financial situations. But there are some— not a lot— unscrupulous landlords who are then saying, well, why don't we find another way for you to make rent? Why don't we use some creative methods to make rent? In other words, trying to solicit sexual favors. OK, so this is what we're really talking about here is the inherent power imbalances that emerge from people who are in the context of poverty which allow for other individuals to take advantage of them.

58And that's what we're trying to do here. I mean, in addition to all the other stuff that we're talking about here, that is the importance of that safety net. And what I can say, Pulat, is that the poverty in Ontario has increased. It hasn't decreased. And the amount of funding that we've seen for community legal clinics has not increased commensurate to those needs that we have seen in the community. So we are only making a very, very small dent in terms of what we able to do, or what we perhaps should be doing in the community, but that need is very, very apparent. And perhaps, I mean, this is worth highlighting because of the pandemic, that in the aftereffects of the pandemic, the economic recession and perhaps even the depression that we face, the need for enhanced funding— so in other words, even more support for legal aid and for community legal clinics— has never been more apparent than this time in in our entire lifetimes.

59We have never seen a pandemic like this in our life. And more importantly, the economic impacts from this pandemic are going to be something that Western societies have never seen. So the last pandemic that we've seen that is perhaps comparable to this would have been the influenza pandemic about a century ago. The financial and the economic circumstances of those times are very, very different than in 2020. And so we are going to expect some very complex and perhaps even long-term financial repercussions from this pandemic. And that's going to mean that we need to really look at and ensure that that social safety net that I was describing and I was talking about is there firmly in place and in fact is firmly supported by all levels of government and by members of the legal community.

61We don't. So the legal aid system, it essentially carves out family law and criminal law and uses a certificate model to provide those services. Okay, but you're right, you're 100% correct that a lot of what we do is to try to ensure that people have jobs have resources, have the funding that they need in other ways, so that we can actually avoid being in circumstances and situations of criminality. I think it's very easy to sort of think that people who are criminals made a choice and wanted to be criminals, et cetera. It's not that. The facts don't bear that out. It's usually desperation. It's not greed, OK, for the vast majority of people. There are individuals, of course, who resort to criminality for greed.

62But really it's desperation in most circumstances that push people in those directions. The other area that you touched on, family law, is also an area we don't provide legal services on per se, but we talked about the Access to Justice Hub, and so we do have some family law triage that we do through our Access to Justice Hub. Because again, most people's family law issues, which often does result in poverty, quite frankly, okay, they are social in nature. The legal components of a family law dispute is probably about 10%. 90% of it is financial and social issues that we can try to address through the various hub partners that we have that provide services, again, for free.

63And so again, what we see is often with our clients is that it's one of two things. They are either in a cycle of poverty, so it's intergenerational poverty, And in that intergenerational poverty, there is a breakdown in the family. So there's a family breakdown, and that's passed on to a generation, that's passed on to a generation, and it's a continuous process. Or the other type of circumstance or situation that we often see is, is not that. So it's not necessarily that type of situation, but some big trauma or impact had affected a family or an individual, and then the family breakdown still occurs. And so many of the clients that we see are also the result of a family breakdown.

64So whereas they may have had two incomes for a household previously, and maybe it was two minimum wage incomes, but it at least was two incomes. When you then have to split the household with one income and are still having to then potentially have dependents, and then maybe have all the financial and economic and social and psychological stresses of family law proceedings, which without representation can take an enormous toll, we see individuals whose lives really do end up becoming in crisis. And so that is also part of what we're trying to address in our clinic and our hub.

66So it's interesting because I mentioned previously about Law Foundation of Ontario being one of our funders indirectly through LAO, and because of the pandemic, the amount of money that are in lawyers' trust accounts is less. Obviously there's less legal transactions occurring, and so there's an estimated $70 million deficit for Legal Aid Ontario because of those Law Foundation of Ontario contributions. And so yes, we're having conversations, and this is all pandemic related, we're having conversations with the provincial and the federal government to see what can be done in this context, but it does demonstrate and illustrate how there are many ripple effects and unintended consequences and effects that are going to come from this pandemic.

67So the federal government does contribute towards Legal Aid, it does. Not as much as it has historically. I think that's a point of contention for the provinces, and we can only hope that they do more. And in this pandemic, there are some initiatives currently underway to try to get them to provide some of that emergency funding during the pandemic to ensure continuity, because right now we're dealing with a crisis. We're dealing with a crisis of funding where the clinics may not exist in the form that we are right now unless there is immediate action taken by the federal and provincial governments.

69Yes,

72To a certain extent, we already do this, right? So we actually provide, for example, tenant duty counsel services that are free on site with the Residential Tenancies Act, so the Landlord-Tenant Board. And that— so people walk in, they haven't retained us as a clinic, they see somebody there, they don't know that that person is employed by the clinic, quite frankly. They just know that somebody is there to help them. So we do that in a limited capacity already. I think, you know, to more and more— to address your question more broadly, if you go to the Human Rights Tribunal, for example, and I think this is where you start to see those issues more pronounced, where the vast majority of those cases emerge in the employment context, every single one of those employers is represented.

73Right? And I would say the vast majority, perhaps 90% of the employees, are not represented at all. And so that becomes a problem. That's an inherent problem within the tribunals. I think your proposal would help expedite proceedings at tribunals. It would make them more effective. It would be cost-effective to do it. I think it would actually cost the legal system less to fund clinics to expand our programs so that we provide free representation to all Ontarians. That would be amazing. Which is amazing, okay, before a tribunal, than it would be to actually still try to have all of these matters heard by people who are effectively self-representing themselves before those same tribunals. I think those questions, though, and those discussions need to come from the legal community.

74So we have an Attorney General right now in Ontario who is very supportive of the community legal clinics, which is a good thing. And he is receptive to ideas. And so if the legal community— that's where it has to come from, not from the clinics themselves, we don't have that type of agency or power— was to say, you know what, this makes sense, we just have to do it, and to make the economic argument about why it would work better, I can actually see that potentially having some traction in Ontario.

76Thank you, Pulat. It was a pleasure. Take care.