Ruminating about recruitment and retention

Ontario''s defence lawyers already thought that the provincial Crown Attorneys had won the lottery, but the latest round of raises has the rest of the bar fuming too.

Historically, the Crown Attorney (the most senior Crown in each jurisdiction) was paid a salary commensurate with that of a provincial court judge. However, these judges were once magistrates, lay members of the bar.

Top Crowns can soon make over $200,000, and by 2009 even the newer Crowns will make over $100,000.

The entry-level provincial Crown currently makes $66,839, while a new Federal prosecutor makes $54,580.

The starting salary in the Ottawa defence bar is $40,000 to $45,000. The only benefits are usually professional insurance, Law Society of Upper Canada dues and a cell phone to disturb you at your most private moments.

As the rumour mill first began surrounding the 45- to 60-per-cent Crown increases, so did complaints by the defence bar and the public defenders to Legal Aid Ontario. Ontario's public defenders have a starting salary of $54,984 with an upper limit of $97,505. Staff duty counsel also start at $54,984, while their supervisors have a base salary of $65,000. Their range is tight.

There is no reason that the pay scale for duty counsel and public defenders should differ from that of their prosecutorial counterparts.

Federal prosecutors have just certified their own bargaining unit: the Association of Justice Counsel (AJC). Within the ranks of the federal Crowns dissension also exists, because mid-range and senior federal Crown counsel in Toronto receive "isolation" pay of a 15-per-cent top-up. Toronto's Federal Law Officers of the Crown (FLOC) failed to be certified, but the AJC wants the Toronto lawyers to join their union, and the salary disparity may disappear through collective bargaining. The feds had a seven-year (something biblical in that) raise-free period in the 1990s, and had already felt they were behind the times. "Recruitment and retention," as they put it, had become a problem at the Department of Justice.

In the March 6, 2006, issue of Law Times I wrote that the 2002 increases to the Legal Aid Ontario hourly rate would evaporate, by virtue of inflation, by the fall of 2006. A 10-per-cent raise this year would only put Ontario lawyers accepting certificates in the same situation that they were in four years ago.

When a complainant waits a week-and-a-half to speak to the Crown about whether her husband can come home, when it can take two or three weeks to meet with a Crown about a shoplifting file, it seems to me that money should be spent on hiring more Crowns. I don't want to meet with an overworked Crown who is sifting through piles of files only to announce that my file is not there and I will have to re-schedule the meeting.

Are there recruitment and retention problems in the Crown Attorney's office? Recruitment must be a doddle, but if there are retention problems, it seems to me that the issue is the workload, not the salary. Ontario Crown attorneys are the best-paid prosecutors in the country.

Since the two five-per-cent increases in Ontario to the Legal Aid Tariff we did see an expansion of Ottawa's defence bar, and it is likely that this was reflected throughout the province. However, within months of opening their practices, many of these young lawyers founder and close their practices, usually for a government job.

The new Crown salaries will probably have a trickle-down effect, though I don't hold my breath to think that an increase of 45-60 per cent is coming the way of lawyers doing legal aid work. Presently, the most junior certificate lawyers in Ontario make $73.87 an hour doing legal aid work, and the most senior lawyers make $92.34. There is a 10-per-cent incentive in the North. Federal agents still make the astoundingly low rates of $60, $71 and $82 per hour, figures unchanged since 1990, when Kim Campbell was prime minister, and the feds have some difficulties finding agents. But unlike the lawyers doing certificate work, the federal agents can be confident of being paid for each hour spent.

There are serious concerns that defence work will not attract and hold talented students and lawyers. Even the Department of Justice worries about being competitive in today's market.

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

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