A Criminal Mind: Legal aid changes put viability of private criminal practice at risk

The viability of private criminal practice in Ontario is at risk from changes to legal aid coverage even as Legal Aid Ontario denies on its web site that it’s bringing in a public-defender system.

The news follows a rumour in Toronto that duty counsel would now handle pleas where the accused is facing a period of incarceration of up to six months. On Jan. 18, LAO addressed these and other swirling rumours on its web site. It says duty counsel will only take on matters where they feel they have the ability, experience, and time to do so.

Even where the Crown has screened a file for jail, LAO doesn’t accept that there’s a probability of incarceration, which is part of its test for issuing a certificate for private counsel. In the article on its web site on myths and realities at LAO, it states: “LAO does not necessarily accept Crowns’ screening forms as absolute proof that if convicted, a person would go to jail.”

Defence lawyers, however, are finding that the legal aid certificate system is available for fewer cases and that duty counsel are taking on more matters.

Twenty years ago, clients who applied for certificates generally received them, at least in Ottawa. After the early 1990s, the test for eligibility was applied more stringently across Ontario and clients had to be facing a probability of incarceration and meet a financial-means test.

Now the situation is more complex. Clients who are actually in jail may not qualify for a certificate and it’s not uncommon to see counsel bringing payment applications for Rowbotham orders or seeking appointments as amicus curiae. Unrepresented indigent accused often have court-appointed counsel for the limited purpose of cross-examining vulnerable witnesses under s. 486.3 of the Criminal Code.

As I wrote in a column in early 2012, the financial-means test for a free criminal certificate dates back to 1996 without adjustment for inflation. A single person must have a gross income below $10,800 per year (although a client with an income below $12,500 is eligible for a contribution agreement). A boarder must have a gross income below $7,100 for a free certificate.

More generous financial eligibility criteria apply if clients resolve their cases with duty counsel. For example, for a single person, the financial cutoff is a gross income below $18,000.

The LAO web site now states that “certificates are only for the most serious cases.” To qualify for a certificate, the test is threefold: first, the client must meet a stringent financial-means test; second, the applicant must probably be facing incarceration; and, third, the case must be a serious criminal matter. But how serious does it have to be?

LAO considers aggravating and mitigating factors when determining whether to issue a certificate as well as the resources available in the region. Many common criminal charges no longer automatically qualify for certificates, including matters such as criminal harassment, possession of cocaine, and breaching court orders. There’s an interactive feature on LAO’s web site that lets lawyers and clients type in charges to see if they may be eligible for a certificate and there are columns of aggravating and mitigating factors.

The application process is therefore more complex and certificates are increasingly difficult to obtain. As a result, it’s likely more unrepresented accused will go to trial. This is the biggest threat to the private defence bar since the deep legal aid cuts of some 20 years ago. Those cuts resulted in layoffs and business closures and the combined effect of requiring that matters be serious and outdated financial eligibility criteria will likely make many legal aid-based practices untenable.

It’s difficult, then, to envisage how our system will function efficiently with the vagaries of certificate eligibility and it appears the objectives of Justice on Target will be difficult to achieve.

The impact on clients, criminal practitioners, and the courts of these new legal aid changes in Ontario will be dramatic. We’re already feeling them.

Rosalind Conway is a certified specialist in criminal litigation. She can be reached at [email protected].

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