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A Criminal Mind: Time again to increase the tariff

|Written By By Rosalind Conway

Only legal aid lawyers, their clients, and legislators know how poorlylegal aid work is compensated. I entered private practice in 1988 inthe heyday of legal aid in Ontario. We were paid block fees forservices that have not been covered since the early 1990s. A lawyercould attend court on the weekend, take legal aid applications fromeach client, and be paid for each bail hearing. We were often paid aspecific fee when a charge was withdrawn.

Now we rarely see private counsel on the weekends in Ottawa, because there is no guarantee of payment. When we are paid, we are paid for our time, not for our accomplishments.  And yet bail is the most important stage of the client's proceedings.
What happened to the plan that was so admired everywhere? Ironically, when the NDP government came in, everything began to change. It became known that there were five or six high billers around the province. It did not matter that these lawyers were popular and handled a great deal of work. Something had to be done.
The plan was drastically cut, and the impact on defence lawyers was severe. There were bankruptcies, business closures, and applications to become Crown attorneys. From 1992 to 1996, Ottawa lost one-third of its defence bar, and half of the women practising criminal law left. Morale was very low. The legal aid plan paid lawyers between $67 and $83.75 per hour, but the services covered were reduced.
Problems were province-wide. There were towns where no one took legal aid work. There were fewer and fewer articling students. There was a greying of the bar. This unhappy and unhealthy situation continued until lawyers in Ottawa and Brockville withdrew their legal aid services in 2002. They continued to help clients in custody, but stopped processing legal aid work. The strike went on for five months.
This resulted in a response from the Conservative government of Mike Harris: a five-per-cent raise was granted, with another five per cent compounded on that shortly afterwards. Rates rose to $73.87 per hour for junior counsel and $92.34 for the most senior lawyers. A 10-per-cent incentive was given in the North.
However, lawyers who don't do legal aid criminal work in Ontario may be interested to hear what legal aid generally doesn't pay for. For example, it does not cover travelling to the jail to see the client, it only guarantees payment for two hours to do a bail hearing and two hours to do a Charter argument (research, draft, serve, file, present evidence, and argue an application). Pre-trials with prosecutors are not necessarily compensated: they are part of one's total allowable hours.
It is hard to understand why legal aid no longer covers settling cases, unless a judge is present.
Recently, Law Times reported that a $6-million infusion was coming to legal aid in Ontario. According to the article, Legal Aid Ontario chairwoman Janet Leiper advised that this would prevent any drop in services: "Over time, the costs of providing the same service increases. The cost of doing business increases." Thank you. I agree.
However, it would appear that what is being put forward is the status quo: no increase for lawyers in private practice whose landlords, secretaries, and photocopy providers expect their annual increases.
By this fall, all of the ground gained by the withdrawal of services will have been eaten away by inflation. Legal aid lawyers are doing vital work dealing with the liberty of the subject. Rates are the same whether the charge is shoplifting or murder.
It is difficult for some clients to find senior counsel prepared to take on long and complex cases. Many clients who are impecunious never qualify for legal aid — their cases are not serious enough.  In many cases, considerable legal work is done for these clients pro bono. It is admirable that the lawyers do this, but it is not necessarily intentional.
A reasonable rate would be that proposed by the Holden/
Kaufman Report, commissioned by the province on April 1, 2000, when the board of Legal Aid Ontario appointed Robert L. Holden and the former judge Fred Kaufman to carry out an independent analysis of the legal aid tariff. They recommended the legal aid tariff hourly rate should range from $105 to $140, depending on the level of experience. That report had been due in November 2000, but was not released until Matt McGarvey, on behalf of the Defence Counsel Association of Ottawa, made an access to information request. Six months later, in June of 2002, the report was finally made public. The rate had clearly been too shocking for people to hear earlier.
Meanwhile, two things happened. Justice Sidney Linden, who was then chairman of LAO, released its business case, which recommended a gradual increase of rates commencing April 1, 2002, ultimately yielding rates of $85, $95 and $105 by 2005. This has not happened.
And in March 2002, a group of lawyers calling themselves the Coalition Supporting Tariff Reform released their own report. They concluded, "an hourly rate of $100-125 per hour over the three tiers would be the minimum hourly rate required to ensure a viable and healthy legal aid plan, ensuring access to justice for all Ontarians in need of legal services."
The group had a great deal of credibility: it consisted of the County and District Law Presidents' Association, the Criminal Lawyers' Association, the Family Lawyers' Assoc-iation, the Law Society of Upper Canada, the Ontario Bar Association and the Refugee Lawyers Association.
What to do? Civil litigators are charging $350 to upward of $450 an hour in one of Ontario's other big cities. Dedicated defence counsel only expect to be treated fairly. Of course, what I suggest would be fair would be to implement the Holden/Kaufman Report at once, and adjust those amounts for inflation. However, unless at least a 10-per-cent increase is implemented immediately, we will soon find ourselves in the crisis situation we were in back in 2002.

Rosalind Conway was president of the Defence Counsel Association of Ottawa from 2001-2004, she can be reached at rosalind.conway@magma.ca

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