Here’s a quick question. Suppose we have a self-employed, successful physician charged with the sexual assault of a patient in one corner and an unemployed male on social assistance charged with the sexual assault of his ex-wife in another corner.
Which accused should enjoy the benefit of a gold-plated defence courtesy of taxpayers?
You win if you selected the physician. That’s right, the physician.
The unemployed accused will have the privilege of applying for legal aid and may enjoy the services of a lawyer paid less than $100 per hour with a cap on preparation time. The physician, however, is entitled to run off to the Canadian Medical Protective Association in order to retain senior counsel with virtually no limit to the hourly rates or the preparation time incurred.
Since the Ontario government subsidizes most of the premiums paid by physicians to the association, it’s the taxpayer who therefore pays for the bulk of the physician’s legal fees.
Is that fair? Here’s what former Ontario chief justice Charles Dubin said about the differential treatment in 1996: “Although it is in the public interest that any person charged with a criminal offence be properly represented, it seems difficult to justify public expenditures to place doctors on a different footing from other accused persons.”
What’s happened since Dubin made that statement 13 years ago? Not much. The association continues to receive large subsidies while the Ontario legal aid tariff has increased only 15 per cent since 1987.
But seriously, the government cares about legal aid clients, the people who, according to Legal Aid Ontario, have “little or no money left” after paying for “basic necessities like food or housing.” After all, in the last four years, the province has commissioned three different reports from distinguished experts: the Code- LeSage report, the Goudge report, and the Trebilcock report. That must have cost a lot of money. It’s just a coincidence that little of significance has come about as a result of those reports, isn’t it?
Or, silly me, is it a matter of politics? Where are the votes in giving more money to the criminal defence bar? Where are the votes in providing better legal services to people on social welfare? But providing subsidies to the medical protective association is good politics. The government wouldn’t want to provoke any disputes with doctors or teachers. That’s bad politics, as previous governments have discovered.
I’m not really begrudging the fact that physicians, many of whom are capable of paying their own lawyers, can readily obtain the Cadillac of defences via public subsidies. The real problem is a lack of fairness. Legal aid is a necessity for many people, as is health insurance. What’s the point of giving everyone rights if only the well off can obtain adequate representation to access or defend those rights?
In the meantime, we force LAO-funded lawyers to subsidize the system and expect them to perform to the best of their abilities when the fees paid are barely enough to cover overhead or achieve much more than a minimum wage. Even if these lawyers perform to the best of their ability, it’s not a fair contest. As lawyers, we know better than most that our adversarial system can only operate fairly if both sides are somewhat evenly matched in resources.
I suppose we should be grateful that the same Ontario government that can afford to blow $1 billion on an electronic-health system that doesn’t exist recently announced it’s going to add $150 million to legal aid over a four-year period. Then again, this is the same government whose lottery and gaming corporation takes in billions a year with a lot of that money coming from - you guessed it - the most vulnerable people who can ill afford to gamble and who in some cases rely on legal aid.
So while the number of lawyers willing to take legal aid cases shrinks each year and vast numbers of litigants appear in criminal and family courts without representation, it’s reassuring that the vulnerable wait for yet another report to come out and that our doctors have the very best legal services money can buy should they run afoul of any laws or negligently harm a patient.
Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is email@example.com.