A Criminal Mind: The hardly new crisis of legal aid underfunding

Underfunding of Legal Aid in Ontario is hardly a new topic, but the crisis just deepened again when LAO sent an email to Ontario lawyers on Oct. 11, notifying them that payments are being slowed down, and that the certificate plan is already $10 million in the hole, halfway through their fiscal year.

The causes, LAO states, are mega-trials, large criminal prosecutions, and the short timelines of their own online billing system.

Yet there are other obvious causes. Let's be realistic. Inflation, population growth, increasingly complex criminal matters, and chronic underfunding all contribute to the shortfall.

The LAO e-missive, coupled with the Ontario Attorney General Michael Bryant's announcement that yet another study would be commissioned from Prof. John McCamus, signalled to Ontario lawyers that the two modest five-per-cent increases of 2002, the first real hikes since 1987, were all that they would see for a long time.

The other bad news, now public, is that 42 per cent more applicants have been refused coverage in less than two years, so pro bono work is burgeoning out of control.

The latest developments are reminiscent of the crisis that erupted when Askov was in its heyday, and a large chunk of Legal Aid's payables became due too quickly, because the Crown was clearing out its prosecutorial closets by withdrawing charges that were going to be stayed anyway. But that crisis also coincided with a 117-per-cent increase in people on social assistance, according to the 1997 McCamus Report.

Ironically, the CBC has just announced that we are living in a period of unprecedented prosperity.
But to return to the online billing: this was a system created and touted by Legal Aid. It was convenient for them, although it required training for us and our assistants. Initially, payments hurtled into our bank accounts within days, but now those halcyon days are over. LAO is moving to an "industry" (a.k.a. slow) standard of payment within 30 days for accounts billed within the tariff maximums.

Criminal lawyers had already been slashing their bills so the accounts could be considered for quick online payments. An example: two hours are allowed for a bail hearing (yes, including preparation, presenting evidence and arguing it). If you take a day to do this work, and if you want to be paid for that day, you wait about three months to find out if they want to pay for your time.

Prior to the announcement, I had been noticing, with that hinky feeling, that it had become more and more difficult to submit my bills electronically. The system would be down, or oversubscribed, and what initially took minutes was taking longer and longer to submit. I suspected LAO didn't really want me to submit my bills.
Historically, LAO has stretched its payables as it reached the end of its fiscal year in March. This year March came early.

Now lawyers are routinely refused junior counsel for preliminary hearings in murder cases, and I fear they will soon be refused juniors at trial. One area director told me they have trouble finding senior counsel to take murders. Lawyers are telling clients not to use up all their hours by calling them. Increasingly, one sees experienced counsel doing the DUIs and the domestics, where the real money is.

Junior lawyers feel the pinch, too. One novice lawyer told me that his expenses were double his receivables, so he has happily accepted a $65-an-hour contract, because it is government work and they are actually going to pay him for each hour of work.

The hourly legal aid rates in Ontario are $73.87 to $92.34 an hour, according to counsel's experience, whether the lawyer is working on a shoplifting or a homicide.

The Ontario government itself commissioned a report from McCamus in 1997, which recommended a mixed model of delivery, according to local needs, but his "blueprint" for services did not specify what should be done where, and how much lawyers should be paid.

In a 2000 report commissioned by Legal Aid, Robert Holden and former justice Fred Kaufman recommended that the hourly rates for lawyers should be $105 to $140. Then, in 2001, a second report commissioned by LAO was released - Justice Sidney Linden's Business Case - which recommended that rates rise to $85, $95, and $105 per hour by April 2005. Even that has not come to pass.

The Coalition Supporting Tariff Reform produced its own 2002 report, recommending hourly rates of $100 to $125 per hour, and concrete increases to the maximums, such as paying lawyers two hours to prepare for bail hearings in addition to paying them for all the time spent in court.

Why re-invent the wheel with yet another report? Enough already: raise the rates and increase the hours. Methinks the government is stalling. Money would be better spent on counsel for the indigent than on gazing mournfully into the gaping hole that has opened up in the plan.

Rosalind Conway practises criminal law in Ottawa. She can be reached at [email protected]

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