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Boycott expansion raises alarm

|Written By Tim Shufelt

Imminent plans to expand the legal aid boycott to include additional charges and other levels of court could debilitate Ontario’s justice system and undermine public confidence in it, according to legal observers.

‘If this were health care, it would be difficult, but the government would solve the problem,’ says David Scott.

Negotiations between the Criminal Lawyers’ Association and the province, set to expire next week, have yet to produce anything close to an agreement, according to the CLA.

“It’s time to turn up the heat,” says CLA president Paul Burstein. “It will be a swift, noticeable, and provincewide expansion of the boycott - other cases and other levels of court.”

Burstein wouldn’t reveal specifics of the CLA’s resolution for a broader boycott, which so far has included only first-degree murder and guns-and-gangs cases.

While the proceedings stalled by the boycott involve the most serious of charges, it has affected only about 100 cases until now.

“Go to your typical Ontario court, and it’s absolutely business as usual,” says James Morton, head of litigation at Steinberg Morton Hope & Israel LLP in Toronto and an adjunct professor at Osgoode Hall Law School.

However, if boycotting lawyers begin to refuse legal aid cases involving lower levels of court, the impact could be dramatic, he says.

“The Ontario Court of Justice level is balanced on a knife edge. Even a small delay somewhere along the line in the Ontario Court of Justice level is going to affect procedure enormously,” Morton says.

Those holdups could have a “traffic-jam effect” in which delays could trickle down to proceedings for all types of charges.

“That could very quickly have a snowball effect across the province,” Morton says.

The duration of the boycott, now in its seventh month, should also have the province concerned about the courts throwing charges out for undue delay, something he calls a chilling prospect considering the severity of the cases that have been languishing.

“People can accept, in a general sense, fairly minor crimes being dismissed because of technical issues.”

The public generally recognizes the importance of ensuring the rights of accused to speedy trials, he notes.

But that recognition, he adds, is likely to give way to outrage if delays threaten a homicide prosecution.

“These are things that will upset folks, and rightfully so. I would be upset.”

Since there is no fixed formula to determine when trial delays infringe on an accused person’s constitutional rights, it’s hard to say when judges will begin to stay charges related to the boycott, Morton says.

The defence has to demonstrate prejudice, but at some point the delay is so long that a judge will infer it, he points out.

“I would say that we’re within months of getting to that point.”

The CLA, which last year rejected the government’s four-year, $150-million boost to legal aid, blames the province for the fact that talks have so far been fruitless.

“It can and should have happened by now,” Burstein says of an agreement.

The CLA’s position that the province, not the criminal bar, is responsible for ensuring access to justice and the right to fair trials is accurate and valid, according to David Scott, co-chairman of Borden Ladner Gervais LLP and past president of the American College of Trial Lawyers.

The province has failed to recognize the scope of this obligation, and successive governments at both levels have consistently dismissed the issue, Scott says.

“If this were health care, it would be difficult, but the government would solve the problem.”

But it’s an issue the province can no longer ignore, he adds.

“This will be disastrous before long. There’s no doubt.”

But he also notes that individual lawyers have an ethical duty, when contacted by those accused of crimes, to reflect on their needs and rights.

“Lawyers as individual professionals have an obligation to protect the interests of those who are at risk on a pro bono basis when it is required. That doesn’t go away just because there’s a legal aid boycott.”

According to Burstein, a number of senior criminal lawyers have accepted pro bono retainers from accused stranded by the boycott in applications for higher rates of pay.

So far, the courts have heard only two funding applications related to the boycott. Both of them were unsuccessful, Burstein says.

In the two cases, the same judge wasn’t satisfied the accused had exhausted all options in finding defence counsel. In order for a judge to rule on what rates may be appropriate, they first have to meet that test.

However, in a handful of other rulings unrelated to the boycott, judges appointing amicus curiae have set rates in the $200-per-hour range, Burstein says.

“Since the boycott began, no court has yet said that the legal aid rate is appropriate or valid.”

Meanwhile, the province has argued against the jurisdiction of judges to order higher rates for defence lawyers.

In a dangerous offender hearing in Sault Ste. Marie, Crown counsel John Zarudny argued such decisions would undermine the accountability of the government’s compensation regime.

“There is no accountability when you have individual lawyers in individual cities and towns around the province showing up in court and saying, ‘You made an order, Your Honour. . . . This is my rate, and you have to give me that rate.’ Well, with respect, the state says no.”

About 30 additional funding applications are currently before Ontario courts, including a group of 13 scheduled for hearings this week in Toronto. Another 50 are in various stages of preparation, says Burstein, who is confident that at least some of those applications will be successful.

“Once it’s been satisfied that an order is necessary . . . judges find the legal aid rate to be woefully inadequate.”

For more on legal aid, see That's History on page 6.

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