LAO introduces ‘diabolically comprehensive’ block fees: Conway

Legal Aid Ontario announced the first phase of its implementation of new block fees, effective May 1, to the discontent, disappointment, and disbelief of many Ontario lawyers.

Initially, only certain standard summary conviction offences are covered by these new block fees, and LAO says they’re provisional. The block fee for a guilty plea on a summary conviction matter is $680; if a charge is withdrawn or stayed, it’s $945.

So what does this new block fee cover? Well, it’s diabolically comprehensive. That one $680 guilty-plea fee covers the bail hearing, any bail variations, reviewing disclosure, meeting with the client, counsel pretrials, judicial pretrials, Charter of Rights and Freedoms applications, plea and sentence, DNA applications, and the old acknowledgment fee.

It also includes basic disbursements, such as all those collect calls from the jail that just became more expensive. Wow. Only if there’s a Gladue hearing or if it’s a mental health matter will they pay more. It doesn’t matter if the resolution is on the day of trial.

Yet LAO has historically paid lawyers with four or more years of experience 12.5 per cent more for their work. Lawyers with 10 or more years of experience have received 25 per cent more. But that’s not the case with the new block fees. The rate is the same for everyone for these “standard” cases.  

In the 1990s, when we saw the first legal aid cuts in Ontario, we had a similar pay structure. The bail hearing was lumped in with the fees for the case. There was a massive flight from the plan, and about half as many lawyers accepted certificates after the cuts.

The intention must be to shift the work to the younger members of the bar because senior members aren’t going to receive adequate compensation from such low fees. The concern should be that for this to be worthwhile, lawyers will have to cut corners and handle many block fee matters at once, a practice previously referred to as “dump trucks.”

When the Criminal Lawyers’ Association reached an agreement with the government after the boycott of homicides and guns-and-gangs cases, significant increases to the hourly rates for those matters were to take effect over time. It wasn’t clear exactly what the new block fees would be, but they were supposed to reflect a typical case settled under the tariff.

The summary conviction charges included in the block fees comprise a long list of offences, including assault, assault with a weapon, assault police, breaches of court orders, and theft of credit cards, among many others. If the Crown proceeds by indictment, the matter doesn’t yet fall under the new block fees. The same applies if the client is a youth or if the matter actually goes to trial.

What this will mean for typical criminal practitioners is a considerable drop in income, a refocusing of their work on private and more lucrative matters, and in some cases, closing an unprofitable practice.

I have my doubts that the new lower level of remuneration will satisfy most junior counsel because of the number of hours it will actually take to complete the cases to the satisfaction of the client and in busy plea courts.

LAO is purporting to reward efficiency, but the timing of the resolution of a criminal case is hardly a matter within the unique control of counsel.

It’s dependent upon the client applying for legal aid and providing all of the paperwork they want, the police handing over disclosure to the Crown, the prosecutor vetting and in turn disclosing the brief, the Crown offering a reasonable resolution, and the court’s availability to deal with the matter.

If during the process of settling the case the lawyer is fired, LAO will pay counsel just $250 for all work done on the matter. That includes all those collect calls.

So while this is, according to LAO’s web site, a pilot project at this stage, it’s going to be a rough period for the defence bar. Funding problems appear to be anything but solved.

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

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