Ontario's legal aid impasse requires compromises
SURELY NO ONE IS BEING well served by the current impasse between the Ontario government and the province's best criminal lawyers, which has seen most of the latter withdrawing their services because of the low hourly rates provided by Legal Aid Ontario (LAO).

The boycott of Ontario's legal aid plan by seasoned criminal lawyers doubled last week when virtually every experienced defence counsel in Toronto vowed to stop taking serious cases until there is a fee hike.

By mid-week, 140 lawyers had signed onto a boycott of future homicide and guns-and-gangs cases in protest of legal-aid rates that have steadily fallen further behind the cost of living, said Frank Addario, president of the Toronto-based Criminal Lawyers Association.

"Homicide and gun-and-gangs are obviously the most high-profile examples of how the criminal justice system does or doesn't work," Mr. Addario said. "We wanted to pull back the curtain on those cases because we have been holding it in place and hiding the problem for the government for two decades."

Marlys Edwardh, a prominent Toronto defence lawyer, said the boycott "will underscore, in the strongest possible way, that there is a need to bring senior, experienced people back into the complex cases. I think this is a very loud statement."

However, Ontario Attorney-General Chris Bentley warned in an interview that the boycott "could very well end up being counterproductive."

He refused to elaborate, but said his government cannot be expected to rapidly resolve a problem that was created by previous governments. "We have made some progress over the past five years with a 15 per cent increase in the fees, but the 15 years before were years of cuts," Mr. Bentley said.

Veteran lawyers who typically charge $300 to $500 an hour to private clients make $98 an hour for a legalaid case, Mr. Addario said, which results in them ceding the field to inexperienced young lawyers. "The cost is runaway trials, unreliable verdicts that lead to overturned cases, and a terrible expenditure of police and prosecution and judicial resources," he told The Globe and Mail's Kirk Makin.

Mr. Addario said that the justice system must resign itself to sprawling trials that are conducted by fledgling lawyers who lack the experience to make concessions and focus on key legal issues. "It's no slur on our younger members to say that they are being thrown onto cases often because there is no one else to take them," he said.

Ms. Edwardh said wrongful convictions may result from the growing imbalance between the resources available to the Crown and the defence.

"I see this as the straw that breaks the camel's back," she said. "We have not had meaningful legal aid reform. I think there are voices from the Attorney-General's office that perceive adequately funding the defence as being part of a soft-on-crime agenda. This is misconceived and it's misguided, but there is no other explanation."

The boycott is the most dramatic action the defence bar has taken in the past decade. It comes after three major reports into legal aid and systemic problems in the court system concluded that legal aid rates must rise in order to attract senior lawyers back to the program.

Ms. Edwardh said that besides barely covering the cost of law-office overheads, legal aid pays defence expert witnesses half of what they can receive if they are retained by the Crown.

"That is a very skewed and dangerous lack of balance," she said. "I have absolutely no doubt that, when the defence bar is unable to access the experts they need, what's at stake are wrongful convictions."

Without a doubt, the boycott comes at a time when the federal and provincial governments seem to be trying to outdo one another in being tough on crime, while doing little if anything to ensure that those who face criminal charges get fair trials.

But since the boycott is also taking place in the midst of a deep recession when governments are running record deficits, there's little hope for any significant boost in Ontario's current $350-million budget for legal aid.

As we see it, the existing legal aid rates should be made more flexible, with arbitrators empowered to order higher payments to senior defence lawyers who take on particularly difficult cases, such as those requiring expert psychiatric evidence or where identification is a key issue.

The arbitrators should also have the ability to set the payment rates for such experts and to limit the Crown and defence to one expert each. Juries ought not to be confronted with half a dozen experts supporting the Crown and just one responding for the defence.

It strikes us as patently absurd that we live in a society where the hourly labour rates we are charged for car repairs are roughly as high as the legal aid rates set for senior lawyers who'd normally bill at 10 times the hourly earnings of a mechanic.