Editorial: Good news on legal aid despite lingering questions

Last week’s news that Ontario’s criminal defence lawyers were ending the legal aid boycott of the most serious cases was a welcome development.


Already, people accused of murder were finding it nearly impossible to find a lawyer. While the boycott initially involved the most senior defence counsel, junior lawyers soon joined in as well.

As a result, threats to expand the protest to other levels of court and less serious cases meant the justice system could easily have ground to a halt.

The Criminal Lawyers’ Association that spearheaded the boycott is certainly heralding last week’s deal with the Ontario government as a victory. Given that the tariff boost is only five per cent annually after years of minimal or no increases, that might not quite be the case.

But precisely because successive governments have dragged their heels on the issue for so long, the hike in the hourly rate is significant. In particular, the fact that the rate for the most serious cases is going up even more over the next five years - by 66 per cent - should help resolve long-standing complaints that criminal lawyers were essentially working for free on complex files that took large amounts of unpaid hours.

So it’s good news that Ontarians will be able to find a lawyer again and that defence counsel have made gains in their bid for resources that in some measure approach those available to Crown prosecutors.

Of course, questions remain. How, for example, will the government pay for the tariff increase? Will it, for example, take away money from other parts of Legal Aid Ontario’s budget? Does the pay boost mean some aspects of the so-called “legal aid transformation” promised at the time of September’s $150-million funding increase won’t happen?

Attorney General Chris Bentley says that’s not the case. But besides those questions, it’s unclear whether the latest increase will be enough to entice senior lawyers to take on the most serious cases again.

While raising the tariff for those matters will help, a key complaint from lawyers is that LAO limits the number of hours they can bill. So while it’s fine to make a reasonable rate for billable time, the unpaid extra hours they put in order to competently defend someone accused of a serious crime is an impediment to taking on those cases.

But in the end, the CLA showed real progress in unifying the defence bar on the issue. Given the gravity of the criminal matters at stake, it wasn’t easy for many lawyers to turn away accused people looking for help.

In the meantime, fears that the public would turn against lawyers already making what appears to be a generous $97 per hour didn’t materialize, a fact that’s a testament to how obvious the disparity between the resources afforded the Crown and those provided to the defence has become.

Finally, then, the government has acknowledged in a meaningful way what the rest of us have known for years: real access to justice requires a fully funded legal aid system. Let’s hope that as the details of the deal reached last week take shape, we see progress on that front.
- Glenn Kauth 

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