Shannon Kari, National Post
December 3, 2009
The ongoing boycott of major criminal cases by defence lawyers in Ontario over legal aid rates is now in its seventh month with the dispute being argued out both behind closed doors and in the courts.
The Ontario Ministry of the Attorney-General agreed late last week to enter into talks with the provincial Criminal Lawyers' Association to try to resolve the impasse over rates that have increased by 15% since 1987 -- a fraction of the pay hikes provided to everyone else in the justice system.
During the first six months of the boycott, there have been widespread calls from a variety of participants in the criminal justice system, including judges, for the province to increase rates to ensure that experienced and effective defence lawyers will take on legal aid cases.
"This will save the public money in the long run," stressed Paul Burstein, who was elected as the new president of the Criminal Lawyers' Association last weekend at its annual conference.
"The government's own reports make abundantly clear that the system saves bundles of cash by investing a little more in the lawyer," he added.
The one consistent voice in opposition to a rate hike has been Ontario Attorney-General Chris Bentley. Just one day before the province agreed to discussions over legal aid rates, Mr. Bentley said he would not rule out moving to a public defender system if criminal lawyers expanded the boycott.
"We will take whatever steps are required," he said.
Mr. Bentley has stressed there is no more money beyond an announcement in the fall that will increase the overall budget of Legal Aid Ontario -- although not necessarily the hourly rates -- by $60-million or about 20%, by 2013. The Attorney-General's message is reinforced in written documents filed before a court hearing today in Kitchener.
Ontario Superior Court Justice James Ramsay is being asked to order the province to pay at least $170 per hour to lawyers willing to represent the accused in two upcoming murder trials, instead of the top legal aid rate of $97 per hour.
The province is arguing that the judge should dismiss the request because it is up to the government to decide what defence lawyers should be paid. "The court should not allow itself to be drawn into what is essentially a labour dispute," writes Crown attorney John Zarudny.
After a lengthy search, which included promises of a $5,000 signing bonus, Legal Aid Ontario was able to find two lawyers willing to break the boycott, one of whom has never handled a murder trial.
The boycott was sparked by an ever-widening gap between defence lawyer compensation and others in the justice system. A provincial court judge makes about $260,000 annually in Ontario.
Nearly 450 Crown attorneys were paid in excess of $180,000 last year. Dozens of Justices of the Peace, who are not required to have legal training, made over $150,000 in 2008.
Defence lawyers point out that they have considerable expenses, similar to running a small business, which have to be paid out of the hourly rate.
But while most other participants in the justice system may support a significant fee hike, it is not clear if the boycott has been resonating with the general public in Ontario.
"We have been preaching to the choir," admitted one senior Toronto lawyer.
Mr. Burstein again stressed that the public is the ultimate beneficiary if there is a legal aid system that has fair rates and retains effective defence lawyers.
The public defender model has been studied by Legal Aid Ontario's own auditors and "it was always much more expensive than the independent service provider," said Mr. Burstein.
"You don't have to pay us benefits. There is no pension," he noted. "We also have an incentive to be more efficient."
Ensuring that qualified defence lawyers handle the most serious and complex cases will save the justice system money, said Scott Hutchison, a former senior prosecutor now in private practice (Mr. Hutchison is acting for the accused in the Kitchener hearing seeking higher rates for their lawyers).
"Experienced counsel know when to pick their fights," said Mr. Hutchison, who suggested this reduces the likelihood of frivolous motions claiming Charter rights are violated.
The overall funding increase announced in the fall may be swallowed up the present deficit at Legal Aid Ontario and new criminal laws passed by the federal government that may increase the volume of cases, said Mr. Burstein.
An independent mechanism to determine legal rates in the future, similar to what is in place for judges, police and Crown attorneys, is what is needed, said Mr. Burstein.
"It is unseemly that poor people in Ontario who are involved in litigation against the Attorney-General, have to depend on the largesse of their opponent for legal funding."
skari@nationalpost.com---------
BY THE NUMBERS
$97 Top hourly rate paid to any lawyer under a legal aid certificate in Ontario.
$160 What the top hourly rate would be if the province accepted the recommendations of the Holden-Kaufman report commissioned in 2000 by Legal Aid Ontario.
$192 The hourly rate the Ontario government pays outside lawyers it retains to act for the province.
$225 The hourly rate that a firm can seek in legal costs if it is successful in a civil case, for a lawyer with less than 10 years experience.
15 The percentage increase in the legal aid rate in Ontario in the past 20 years.
83 The percentage increase in the salaries of provincial court judges in the past 20 years.
57 The percentage increase in Crown attorney salaries in Ontario in the past decade.