Legal aid reformers should look to private bar, law associations say

Duty counsel system becoming overtaxed

Legal aid reformers should look to private bar, law associations say
Nathan Baker

Enlisting the services of the private bar is more efficient than loading more work onto duty counsel, the Federation of Ontario Law Associations told the government in a recent submission.

The submission focuses on the Legal Aid Services Act Review and is addressed to the Attorney General of Ontario, chair of Legal Aid Ontario, Law Society of Ontario and Alliance for Sustainable Legal Aid. The letter, signed by lawyers Terry Brandon, Nathan Baker and Valerie Brown, says Legal Aid Ontario should not be expanding duty counsel services except in very specific circumstances. 

“Legal Aid Services Offices do not work. They tend to cost more than the certificate systems in similarly provided areas of law, they are not reactive to changes in demand and they are susceptible to even greater increase in cost since the unionization of legal aid lawyers,” the organization said. 

It would be more effective to use duty counsel services to support the private bar, said FOLA’s letter, which said there has been “mission creep” on duty counsel that has slowed the justice system. 

“One need look no further than the public defender models utilized in other countries to realize the significant flaws in such systems. The private bar is able to react to changes in the legal landscape in a much more nimble way than the leviathan of a centrally run program,” FOLA’s letter added. “The ability to choose counsel of one’s own choice is integral to the criminal justice system and is enshrined in Charter litigation.” 

FOLA is also asking the government to consider more “transparency” in the certificate process, such as hourly rates tied to inflation and a financial eligibility test tied to an independent standard such as the Low Income Measure set by StatsCan. 

FOLA also suggested potentially tying the funding ratios between prosecution and defence services. 

“FOLA strongly supports the independence of LAO from the government. Justice must not only be done, but must also be seen to be done. The state cannot be responsible for both the prosecution of and defence of a person. There must be a clear delineation between these two equally important sides to the criminal justice system,” FOLA’s letter said.  “Similar work should be funded in a similar fashion.” 

The board of LAO should also represent a wide skill set from groups such as the Family Lawyers’ Association and the Criminal Lawyers’ Association, the group said. 

Nathan Baker, a member of FOLA’s Legal Aid Committee, says LAO’s focus groups on competencies have highlighted unique attributes of legal aid cases in contexts like criminal and family law.

“We acknowledge that legal aid has, has a part to play in that and ensuring competency. And what we don't want them to do is be spending their limited budget needlessly there,” he says.

Ultimately, Baker says, lawyers hope to preserve one of the major advantages of the province’s legal aid system: that certificates allow experienced and senior lawyers to take on complex cases.

“When we look at jurisdictions that have a public defender system, the problem is that they tend to squeeze and squeeze and squeeze until public defenders are vastly overworked, underpaid, and tend to be very junior lawyers just starting out in their practice,” he says. “[The certificate system] gives the person actual counsel of choice, and they have some freedom to choose a lawyer — as opposed to being assigned one who is also dealing with a large caseload that is ever expanding. And obviously, injustices happen when the system over taxes itself.”

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