Fifty Ontario law professors are backing criminal lawyers’ boycott of major legal aid cases, signing a letter to Attorney General Chris Bentley demanding a boost to the legal aid rate.
The professors link the current legal aid rate, which is so low that most top criminal lawyers have shunned the system, with systemic delays that continue to clog the province’s courtrooms.
“There are numerous studies which have documented the compelling public policy reasons for increasing the rate paid to defence counsel in legally aided cases,” the letter stated.
“Many of the most vulnerable members of our society (for example, the mentally ill) are overrepresented in the criminal justice system.
These are the people who end up unrepresented or under-represented as a result of a chronically underfunded legal aid system. Not only does this offend a fundamental principle of our democratic system, it also has practical implications for the day-to-day administration of justice and its integrity.”
The letter noted that police, prosecutors, and judges have benefited from meaningful salary increases, but criminal defence lawyers have not received “fair resourcing” through legal aid.
Osgoode Hall Law School associate professor James Stribopoulos says he and Osgoode colleague Allan Hutchinson, a distinguished research professor at the school, hatched the idea to send Bentley an open letter in support of the boycott. They circulated the letter to all professors in the province, with 50 signing on.
“Law professors have a certain moral authority within the legal system,” says Stribopoulos. “We’re not partisan. In this debate in particular, we don’t have a vested interest one way or the other. We’re just thinking of the system as a whole, which is part of what we do in our jobs as academics - reflecting on the entire legal process.
“When you see something that strikes you as unfair, I think it’s incumbent upon law professors to speak out. To use some of that moral authority that we have, some of that clout, to weigh in on important matters of public policy relating to the legal system.”
David Tanovich, an associate professor at the University of Windsor Faculty of Law, says he signed the letter in part because of the experience of young lawyers seeking work in the area of criminal law.
“We have seen more and more lawyers refusing to take on legal aid certificates; we’ve seen firms dissolving into sole practitioners,” he says.
“What this has resulted in is less mentoring for young criminal lawyers: there are fewer articling positions, there are almost no summer positions, which means that students who come to law school with substantial debt and who can’t find articling positions or who face a realistic future of setting up their own practice, are going to be deterred from entering the criminal law field, even though that’s what they want to do.”
He adds that many of those who push on and start their own criminal law practice will do so with inadequate practical and ethical training.
“That causes serious problems in terms of adequacy of representation, adding to the length of trials,” says Tanovich.
Stribopoulos says legal aid has served the province well over the years, and credits Legal Aid Ontario for the work it does under a “very limited budget.” But he adds that the system has been “chronically underfunded” by successive provincial governments.
“We’ve really reached the point where enough is enough, and the boycott is reflective of that.”
He adds: “To think that you can chronically underfund an essential part of the justice system - the defence part - and not have it [have] an effect on the quality of the system, both in terms of efficiency and the quality of the outcome . . . I think is willfully blind, and so much so that it is almost bordering on the point of systemic negligence on the part of the government.”
Over 400 criminal defence lawyers in the province have now signed on to the boycott, refusing to accept legal aid certificates for homicides and cases involving gun-and-gangs or serious offenders.
They argue that the top legal aid rate of $98 per hour - when taking into account overhead costs and hours of work that are not paid out by LAO due to its restricted budget - is insufficient. The Criminal Lawyers’ Association has spearheaded the boycott.
Professor Don Stuart of Queen’s University Faculty of Law has taught criminal law at the school since 1974. He says almost all of his top students with goals of practising criminal law now seek positions as Crown attorneys.
“The actual reality of the legal tariff rate not being adjusted satisfactorily for so many years . . . is a tremendous power imbalance among lawyers,” he says.
CLA president Frank Addario says, “I am pleased that [law professors] are adding their expertise and their ability to think critically to the chorus of opinions from editorial boards, judges, and service providers who are convinced of the urgency of doing something substantive and comprehensive to fix the legal aid program.”