Accused could ask province to fund defence
York Region, June 11, 2009
York Region lawyers and others who practice at the Newmarket courts are now boycotting legal aid cases for some of the most serious criminal offences.
In rare move, the Criminal Lawyers Association announced June 1 that senior lawyers will decline legal aid cases for homicide and gun and gang charges.
By doing so, the association hopes to shine a light on a “notorious imbalance” between the paltry $98 per hour defence lawyers earn from the government for legal aid cases, compared to better resources afforded to police and Crown prosecutors, the association says.
Lawyer Edward Prutschi called the legal aid system “broken” but said he believes lawyers will not abandon legal aid cases they have already taken.
“Consistently, the government’s own experts have recommended substantial increases to the legal aid tariff, particularly as it relates to complex cases handled by senior counsel,” Mr. Prutschi said.
“Evidence suggests that paying senior counsel a fair wage for such cases will be revenue neutral to legal aid’s coffers as it will reduce trial length by narrowing issues and limit the correction of errors on appeal.”
“Our firm does normally accept legal aid cases in Newmarket and other jurisdictions, but we are following the mandate of the Criminal Lawyers Association and declining new legal aid cases where the charges are homicides or arise from guns and gangs project prosecutions,” said Mr. Prutschi, who often practices at the Newmarket courts.
Several lawyers, who have been involved in high-profiles cases at Newmarket, are participating in the boycott, according to the Criminal Lawyers Association’s website, It should be noted that those cases were not necessarily legal aid cases.
A defence lawyer working on a legal aid case earns about $98 per hour, Frank Addario, the association’s president said in an interview.
But, he added, that is before free hours of work and expenses are factored in.
The association has not said how much more per hour defence lawyers should be paid for legal aid cases.
But charity is no way to run a social program, Mr. Addario said.
In a letter to Attorney General Chris Bentley, dated April 17, Mr. Addario said he recognized the world is currently experiencing an economic downturn and that money is being used to maintain existing social programs.
“Legal aid is one of these social programs,” Mr. Addario wrote.
The province has been working hard to ensure the province has a strengthened legal aid system and that those involved are properly compensated, Mr. Bentley said in an interview.
“I think it can be strengthened.” Mr. Bentley said.
The legal aid tariff has increased 15 per cent in the past five years, he said. But that does not make up for freezes or cuts in the 15 years preceding those increases, he added.
There have been discussions between the association and the province, however, Mr. Bentley would not discuss details.
“We’re all trying to get to a better place,” he said. “Legal aid has never been an easy file for government.”
It is hard to say how long this type of boycott could last, Glenn Stuart, a practicing lawyer and legal aid expert said.
“I think our justice system is still fairly near the head of the pack,” he added.
If someone does not have the money to pay for a defence lawyer who is not taking legal aid cases, they could approach a lawyer who is not participating in the boycott or ask the court to order the Attorney General to fund their defence, he said.
But accused shouldn’t count on getting any breaks, such as claims the boycott violated their right to a speedy trial, Mr. Stuart said.
“I would be surprised if the court would count that against the Crown,” Mr. Stuart said.
Meanwhile, the province has released a seven-point plan to more effectively move what it calls “straightforward” cases through the justice system.
The announcement was made May 27 — five days before the lawyers’ association announced its boycott of legal aid cases and three days after the York Region Media Group reported a sexual assault case had been tossed out a Newmarket court because a defendant’s right to a trial within a reasonable time had been violated.
The seven initiatives were developed after a project at the Newmarket courthouse, as well as courthouses in North York and London.
The Newmarket courthouse, which serves all of York Region, was one of several in this province designated an “action site” to improve the pace of justice. The Ontario court in Newmarket has been mired by procedural delays that have resulted in several cases being thrown out because a judge ruled a defendant’s right to a trial within a reasonable time was violated.
The initiatives are:
• On-site legal aid and a simplified online application process;
• Two-stage disclosure: An initial package that will ensure everyone has information they need to make timely decisions and minimize unnecessary delays;
• Meaningful first appearances: The parties will agree if any work can be done up front so the first court appearance makes progress toward resolving the case;
• A three-appearance standard: The parties will know there is a three-appearance standard for straightforward cases, which will allow resources to flow to complex cases;
• Crown access commitment: All parties will commit to exploring if the case can be resolved early;
• Increased availability of plea courts when someone wants to plead guilty and;
• Direct accountability: Measures to hold offenders accountable to their community rather than going through the traditional court process.
But, Mr. Bentley could not say when those initiative would begin to take effect in Newmarket.
“They are starting to figure out the implementation schedule right now,” he said.
The government has said the action sites, including Newmarket, will each determine the best way to roll out the initiatives to best meet their needs. How those changes are implemented will vary site-to-site.
In a statement, Harold Dale, a Newmarket assistant Crown Attorney, member of the Newmarket local leadership team said the momentum for change is building.
“Taken together, these approaches will speed the pace of justice,” Mr. Dale said.
Mr. Bentley said by 2012, he expects 500,000 fewer court appearances every year simply to adjourn proceedings to another date.