New duty counsel not public defenders: LAO

Legal Aid Ontario is vigorously denying that a spate of hiring new duty counsel who are reportedly handling minor trial matters is a move towards a public-defender system.

“Legal aid is not moving to a public-defender system,” says LAO spokeswoman Genevieve Oger.

“Legal aid believes in a vibrant private bar,” she adds, noting the Legal Aid Services Act provides for a mixed system.

The comments follow suspicion among Ontario’s private bar that a slew of new duty counsel, some of whom are handling trials on minor charges rather than the usual focus on bail matters and first appearances, represents a long-feared move to a U.S.-style public-defender system. “What I understand is happening is they’re hiring not just extra duty counsel but they’re hiring in-house counsel to actually do trials,” says Toronto criminal defence lawyer John Rosen.

“It’s sort of a creep that’s moving up,” he says of the implications for the private bar.

It’s a trend defence lawyer Blair Drummie has noticed as well. “Duty counsel are doing trials in Brampton,” he says. “They’re going to start soon at College Park.”

Oger admits the hiring has been going on but says it follows a financial analysis that showed that in some places, it’s cheaper to hire staff duty counsel rather than pay private lawyers to do the work on a per diem basis. “In those places, it makes sense to hire someone full-time,” she says, adding LAO welcomes applications from the private bar for those positions.

Oger also notes duty counsel have generally handled trials less than a dozen times a year in the past. But do the changes herald a move to do that more often as some in the private bar suspect? Oger notes the duty-counsel manual has always allowed those lawyers to take any steps that may be appropriate to protect a client’s rights, something that can include trials (although the manual says trials are “beyond the normal function of duty counsel”). Asked if they’ll be exercising that option more often, Oger says: “Our mandate is to serve the low-income people of Ontario. . . . Many of the working poor are not eligible for certificates. . . . We have to try and find ways to serve low-income people. And so that could be expanded duty counsel.”

For people like Drummie, a big concern is the quality of representation as the number of legal aid certificates issued declines. “It’s an unfortunate thing they’re doing,” he says, noting the good reputation Ontario’s certificate system has always had.

According to Rosen, LAO’s approach may not be that cost-effective after all. “The reality is if you’re an employee, you’re going to work employee hours, you’re going to have an employee mentality,” he says.

Oger, meanwhile, acknowledges the general decline in certificates available to hire private-bar lawyers but says the decrease is in line with overall crime rates and activity in the court system. “This is not unique to Ontario. Crime is down across the western world.”

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