Legal Aid Ontario''s decision to curtail payments for defendants in mega-trials will leave Ontario with a fundamentally unfair justice system unless the government or the courts find a solution, say defence lawyers.
Last week, LAO announced that as of Dec. 1, it would stop paying legal costs (fees and disbursments) for those facing large scale prosecutions beyond the bail hearing when case budgets exceed $75,000 for a single accused or $500,000 for more than one accused.
Legal aid is legally obligated to meet its $309-million budget, however, a mid-year review discovered the small but growing number of large-scale prosecutions has left the entire system $10 million over budget.
Previously extremely rare, the number of mega trials - mostly gangs and guns and terrorism-related cases - has soared by 400 per cent over the past five years, according to LAO. These cases make up just one per cent of legal aid certificates each year but account for 24 per cent of legal aid's criminal expenditures. Some individual cases are costing the system more than $3 million.
"Without new guidelines our Big Case Management program in 2006 would increase by more than 53 per cent to $29 million from $19 million per year," says Janet Leiper, chairwoman of Legal Aid Ontario.
Peter West, chairman of the Ontario Bar Association's criminal law section, says Ontario's legal aid system was once admired by jurisdictions all over the world, but has completely fallen apart, even as the police and Crown's resources for large-scale prosecutions seem to be growing.
"I think this will create a situation where individuals who are facing serious charges are not going to get a proper defence," says West, of Cooper Sandler & West. "Most of the evidence that takes months in court is led by the Crown attorney, and the defence has to be able to prepare and respond to that evidence and then prepare their own case as well.
"I think the government's got to make it a priority and they've got to find other sources of money to do what they've promised to do in the past."
According to the Ministry of the Attorney General's web site, the budget for prosecuting crime is roughly $207 million. However, Crown attorneys also use the police and other sources such as forensic labs to assist them.
Ontario Criminal Lawyers' Association president Louise Botham says legal aid is essentially forcing the issue by washing its hands of the problem.
"It then falls into the lap of the defence bar to find a way so that these accused people simply do not languish in jail without a lawyer," she says. "It's not a solution that we're happy with.
"Defence counsel may need to seek court orders to force the provincial government or LAO to cover costs of certain cases," she says. "I don't think [defendants] will go without lawyers. I can't believe that our justice system is going to find it acceptable for people who are charged with the kinds of serious offences that are going to warrant legal fees of over $75,000 to be self-represented."
LAO has watched carefully as its big-case-management program continued to outpace its available budget, and was eventually forced to act, says Leiper. It had already trimmed any fat by cutting $3 million in administrative expenses, delaying payment to lawyers, and getting tougher about which bills it accepts.
She hopes the cap will be a temporary measure and says LAO is working with the Ministry of the Attorney General on a high-level committee designed to come up with solutions or alternative ways for people to access the representation they are entitled to. In the meantime, LAO will continue to pay for any cases where they've already set a budget.
When LAO's current regime was set up in 1999, it simply wasn't designed to carry these kinds of cases because they barely existed, says Leiper.
Ontario isn't the only province trying to come to grips with the growing mega-trial drain. After the Air India case, British Columbia created a separate fund for exceptionally large cases.
That's one possible solution, she says.
"There's an incredible opportunity here for a number of legal aid issues to be addressed," says Leiper. "Not just in the criminal law sphere, but over the last number of years, some gaps have been emerging in our ability to serve people."
For instance, she says, LAO turns down too many low-income people because the criteria to access services are outdated. She says a single person who earns more than $16,000 after taxes may be making too much money to access services.
Ministry of the Attorney General spokesperson Brendan Crawley says the ministry is working with legal aid to ensure it has adequate sustainable funding, and has boosted LAO's provincial funding by $25 million since coming into office. Earlier this year, the ministry also asked former Osgoode Hall professor John McCamus to review how legal aid can effectively fulfill its mandate.
"The minister has every confidence that these cases will continue to work through the system in the normal course," says Crawley. "We don't believe any of these cases are in jeopardy."