RSS FeedOntario AG responds to continuing Legal Aid boycott
The boycott of legal aid by the Criminal Lawyer’s Association continues. I reported a few days ago that the CLA would not endorse the government’s plan to inject $150 million into Legal Aid on the basis that the funds did not come close to making up for losses against inflation that criminal lawyers have endured since 1987 (among other reasons).
Below is the latest letter from Ontario’s Attorney General Chris Bentley in response to the CLA’s rejection of the plan.
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Dear Member of the Bar:
As many of you know, legal aid has been an ongoing passion of mine, throughout my 25 years as a criminal defence lawyer and during my time in government. That’s why I was pleased to announce that the McGuinty government is investing $150 million over the next four years. This 21% increase to Legal Aid Ontario’s base funding means that Legal Aid Ontario will receive an additional $60 million in year four and every year thereafter. This investment means that the government’s contribution to Legal Aid will rise from $288 million per year to $348 million per year.
We understand that to get legal aid to a better place, we have to properly support lawyers.
This is the largest investment that the province has made since the beginning of legal aid. We are committed to ensuring that the poorest Ontarians get the legal support that they need, when they need it and in the way that they need it. I am confident that the Bar shares these goals. This investment will support poverty alleviation. It will also help drive significant reforms in our family and criminal courts—which will themselves help Ontarians needing assistance.
The transformation plan targets four key areas: creating a central role for legal aid clinics in poverty alleviation; fostering a faster, less confrontational and simpler family justice system; promoting justice effectiveness through the use of block fees; and improving the approach to big cases.
The members of the Bar, including the Alliance for Sustainable Legal Aid, asked us for two things: an additional investment and an assurance that they would not simply be presented with a reform plan that was a fait accompli. As a result, we will immediately establish an Advisory Group in each of five areas: family, clinics, large criminal case management, standard criminal cases and immigration law. Your advice as front-line service providers, on the advisory groups will inform how best to achieve our mutual goals.
There are a few parts of our announcement that I would like to clarify:
- We have been explicitly given direction to develop and seek approval of an indexation mechanism. This has always been part of our legal aid renewal plan. The implementation would take place in 2013 (our investment rises every year until then);
- We understand that appropriate support is required for service providers to assist Ontario’s vulnerable and are open to the Advisory Working Group’s advice on the best way to provide that support so that we get experienced counsel in family and criminal matters. There was a specific commitment to look at models such as the British Columbia big case model if the advisory group so advised;
- This historic investment in legal aid is not the government’s “opening proposal” as some have suggested. This is the single largest increase to legal aid funding ever in Ontario. In fact, it is one of the largest single justice sector investments in history. The discussion from here forward needs to be about how to make the funding work as well as possible; an over 20% increase to LAO’s base budget is unprecedented and significant in the best of times. It is extraordinary in these times.
- The Major Case Management Office is being created to provide the required accountability and quality control that the Bar has supported. The government is responsible to ensure that cases progress and that the rights of the accused are protected.
- Legal Aid is responsible to ensure that the accused who need counsel to defend themselves on serious charges but cannot afford them have access to counsel. To the extent that members of the private bar remain unavailable to do these cases, a large case office will have to develop the permanent capacity to do them. The capacity and role of this office, will, therefore, depend, on the availability of private counsel.
We are committed to a legal aid system that provides support to Ontarians when they are at their most vulnerable. This investment will ensure that a vibrant legal aid system is able to assist those in need, now and in the future.
Sincerely,
[Original Signed By Hon. Chris Bentley]
Hon. Chris Bentley
Attorney General
Legal Aid boycott to continue
I spoke too soon when I congratulated the Criminal Lawyers Association on convincing Ontario Attorney General Chris Bentley to boost funding to Legal Aid Ontario to the tune of $150-million over the next four years.
It turns out that the battle will be continuing. Despite the funding boost, the Criminal Lawyers Association board has voted in favour of maintaining the boycott of legal aid.
Frank Addario, President of the CLA, argues that the cash infusion is merely a stop-gap measure which does not address the underlying concerns of the criminal defence bar. In a communique to Association members, Addario pointed out that when broken down, legal aid lawyers would be receiving a raise of 5% or less over the next four years.
This wouldn’t come close to correcting the income disparity between legal aid lawyers and Crown attorneys. It also wouldn’t address the many years of funding freeze and funding rollback that sparked the boycott in the first place. Addario explains:
If the population, the crime rate, the complexity of cases and inflation all remain stable in the next 4 years a 20% increase in funding will not eliminate the 60% loss against inflation since 1987.
Besides the money, there were other important reasons for the board’s decision to maintain the boycott. Expect a formal announcement later this week or next.
Legal Aid to get a much-needed funding boost
After years of neglect, the Legal Aid system in Ontario has been scheduled for an overhaul. On Tuesday, Attorney General Chris Bentley will announce $150 million in new funding for Legal Aid, as well as significant changes to the way the system works.
Legal Aid Ontario (LAO) is an independent, publically funded organization which is dedicated to improving access to justice in this province. With a current budget of about $288 million, the infusion of $150 million into the system over the next four years represents a huge boost.
Kudos are due to the Criminal Lawyers Association and senior defence lawyers across Ontario for taking dramatic steps to raise the public’s awareness of the ongoing injustices in the Legal Aid system. Kudos are equally due to AG Chris Bentley for listening and taking action to correct them.
Many members of the public don’t realize what legal aid money is actually spent on. The new funding will not only be used for criminal defence. In fact, much of the money will probably be directed towards family law services, such as helping people below the poverty line protect the best interests of their children. Among other things, LAO also funds: community clinics (such as the one I work for), duty counsel in court, aboriginal services, compensation for injured workers, tenant rights protection, compensation for victims of crime, and other victims services.
As for the actual changes, we can only speculate until they are officially announced on Tuesday.
However, Bentley has hinted that he will be moving towards a block-fee system rather than an hourly rate for criminal lawyers. Interestingly, this is the system that was previously in place; it was rejected in favour of the hourly wage with maximum hour caps for particular types of work, such as trials, bail hearings, and Charter applications. The block-fee system was criticized for creating an incentive to work as many cases as possible while putting in as few hours of work as possible into each. It remains to be seen how the AG will address these concerns.
It is also expected that in the family law arena, changes will promote more collaborative dispute resolution, such as mediation. This would be a positive step that would free up court resources and make the family law process much less adversarial.
Another change which I am personally hoping for is a Provincial program under s. 802.1 of the Criminal Code that would allow student legal aid clinics to work on summary conviction cases which are punishable by more than 6 months in jail. Having smaller clinics do this type of work would relieve some of the burden on more experienced lawyers, who could direct their efforts towards defending more serious offences.
See also: $150m More Legal Aid for Ontario
When lawyers go on strike
Can lawyers go on strike? You’d think no, not if they have their own practices. But effectively that’s what many defence lawyers in Ontario are up to these days. Maybe they don’t make as many headlines as garbage collectors in Windsor or Toronto who walked off their jobs around the same time. But the consequences of their action can be more far-reaching than overflowing trash bins on Toronto streets. And unlike unions, defence lawyers don’t have the advantage of labour mediation.
It all started with a Criminal Lawyers’ Association Board resolution on June 1, 2009. In it, the CLA requested “senior Toronto members not to take legal aid certificates in Guns & Gangs and homicide cases.” According to the CLA website, the “purpose of this public resolution is to highlight the notorious imbalance in the system between police and prosecution compensation and resources and legal aid defence counsel compensation resources.” Read the letter [pdf] from Frank Addario, the President of the CLA, to Chris Bentley, Attorney General of Ontario for background information and statistics.
The issue here is simple. Ontario Crown lawyers received a 57% pay increase between 1997 and 2007. Legal aid lawyers got a 15% increase since twice as long ago. Prices went up 75% in the same period. Yes, it means that in real terms legal-aid pay went down a lot. Many defence lawyers effectively work on legal-aid files pro bono part of the time. A criminal lawyer who mentors me said Legal Aid only paid for two hours for the bail hearing we did last week. He spent a day working on it. The issue is simple. It’s the balance of power between the Crown and the accused.
Justice means the state accusing you of a crime does not have preponderantly more resources on your case than you do. We are all entitled to justice. Who will disagree with this? Are we, as a society, prepared to pay for justice for all? Even for the criminally accused? Legal Aid’s budget in Ontario was $309 million in 2006. Is it too much? Too little? It clearly translates into too little on a case-by-case basis. And we as a society, at least in Ontario, have been reluctant to open our pockets wider. Today, defence lawyers resort to shock tactics to attract our attention to this issue. It’s about justice for all, don’t you think?
(post sponsored by advicescene.com)
CSIS Snooping on Calls to Your Lawyer
Could CSIS be snooping in on your calls? Routine harassment has been noted where they could not make a legal case. And if they can violate solicitor-client privilege, anything is possible.
The concept of solicitor-client privilege goes back at least 400 years in the common law, and is one of the most well established concepts of privilege in our legal system.
The Canadian Security Intelligence Service (CSIS) was recently caught listening and recording conversations with Mohamed Zeki Mahjoub and his lawyer since the Egyptian refugee and terrorism suspect was released on bail over a year and a half ago.
When challenged by Justice Carolyn Layden-Stevenson, CSIS lawyer Jim Mathieson agreed that any such recordings would stop, and records would be erased.
But other defence lawyers have now raised some very serious concerns. Dennis Edney, who represents one of the Toronto18 and Omar Khadr said in response,
How can we trust that the system is working appropriately? Every lawyer in this country who’s involved in issues of national security has no way of knowing whether (the Canadian Security Intelligence Service) is monitoring their calls.
See the rest of the post over at Slaw.
