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Courts grappling with LAO delays

|Written By Michael McKiernan

Criminal defence lawyers say Legal Aid Ontario’s new application system may be hindering the province’s Justice on Target project as accused wait longer to get through the process for a certificate.

‘Unfortunately, what currently appears to be happening is that there’s increasing appearances while people wait’ for a certificate, says Louis Strezos.

As part of its ongoing transformation, LAO closed regional offices while redirecting certificate applicants to toll-free telephone numbers and online portals.

The province’s Justice on Target project aims to decrease the number of pretrial appearances, but Louis Strezos, who chairs the Criminal Lawyers’ Association’s legal aid committee, says members have told him long waits for certificates are producing the opposite effect.

“The effect of the closures is conflicting at some level with the goals set by the attorney general in terms of reducing front-end set-date appearances,” Strezos says. “Unfortunately, what currently appears to be happening is that there’s increasing appearances while people wait.

You see it first with people trying to get through to a person at legal aid, and then the approval process seems to be much longer.”

A recent case in Sault Ste. Marie, Ont., where a defendant in youth court waited months trying to get his application heard, highlighted the issue. The 17-year-old charged with theft over $5,000 was referred to a 1-800 number shortly after his first appearance.

He couldn’t get through to anybody but reached a recording that instructed him to leave his name and phone number in order to get a call back, according to a recent ruling in R. v. P.(C.).

His second and third appearances were adjourned while he waited to hear from LAO. The youth also said he made several more attempts to reach someone by phone. By the time of his fourth appearance two months after the youth first went to court, the Crown attorney was anxious to move things along, according to Stacy Tijerina, the duty counsel who assisted the accused.

“The Crown was kind of apprehensive and saying, ‘Why has this been adjourned numerous times? Legal aid can’t take that long,’” Tijerina says.

Tijerina helped the youth, who can’t be identified, make an application for representation by counsel under s. 25 of the Youth Criminal Justice Act. Usually, the courts can only make such orders once legal aid has refused to grant a certificate. But in this case, Justice John Kukurin of the Ontario Court of Justice made the order anyway while noting the youth wasn’t to blame for the delay and that he found his account credible.

“Legal Aid Ontario is unquestionably entitled to establish its own protocols and procedures for processing applications for legal aid made by members of the public,” Kukurin wrote in the decision. “The present application system in place appears to be a recent major overhaul to the application process.

The hope is that any glitches that may be causing delay are temporary and due to the transition process. However, time marches on in the youth criminal justice court.”

Tijerina says the story has been the same in adult court since LAO closed its office across the street from the Sault Ste. Marie courthouse.

“You’d stand a matter down in court until they made the application and came back, and we’d know if they were accepted or not. That doesn’t happen anymore. It’s difficult for an adult, let alone a youth, to stay on the phone for hours and hours.”

In an emailed statement on the issue, LAO spokesman Peter Boisseau said almost two-thirds of applicants get a decision on the day they apply. He also noted LAO has recently discontinued its call-back service because it was ineffective.

“Agents returned calls at the end of the day but usually would not be able to reach callers. Rather than continue with voicemail services, the [client service centre] focused on placing more agents on the phones to answer live calls.”

 But Strezos says lawyers are seeing prolems that could have a ripple effect through the criminal justice system given the potential for Charter of Rights and Freedoms issues around reasonable delay.

“The longer people have to wait for legal aid approval or the more difficult it is to get through, it becomes a real access-to-justice problem. Unless the system can respond more quickly, we’ll see more of this occur.”

In Cornwall, Ont., criminal defence lawyer Donald Johnson says accused there are also finding it more difficult to get legal aid certificates. “At one time, we might get up to 10 a week coming in with legal aid certificates but now we’re down to maybe three to five a week.”

Many accused in Cornwall are unable to get a certificate before their first appearance because they need a referral from duty counsel, which adds an extra step to the application process. Having duty counsel act as gatekeepers to legal aid is something that makes Christopher Hicks uncomfortable.

The partner at Hicks Block Adams LLP says accused can feel pressure to agree to resolutions based on the superficial assessment of the case by duty counsel. “You can’t take the underprivileged people in society and shepherd them into guilty pleas without the benefit of any kind of legal advice whatsoever.”

Hicks ran into his own problems with legal aid earlier this year when his firm found itself on the brink of bankruptcy due to a $500,000 debt owed to it as a result of payment delays while LAO restructured its payment unit. The firm took out an emergency loan and only got help after a story about its plight appeared in the Toronto Star in June.

“They paid attention to us for a while and got us out of the financial hole we were in,” Hicks says. “But you’re always behind with legal aid. They undertake to pay between 30 and 90 days but they just don’t always get that done, especially with all the upheaval in the structure.”

Hicks says LAO’s new block fees introduced in May have complicated billing problems for legal aid lawyers. For example, he notes the inability to separate clients’ block-fee billings from their ordinary charges means lawyers have to wait to settle all charges before submitting their fees.

At the same time, Hicks points out that problems with the new online portal for block fees have prevented him from billing for them anyway.

LAO’s payment restructuring period was originally supposed to end in June, but that last estimate was later revised to September and now Boisseau says “the goal is to eliminate the backlog of overdue discretion accounts within the next 30 days.”

For more on this story, see "LAO cutbacks raise alarm" and "LAO vows to fix "unacceptable hotline waits."

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