Recently, an initiative was started by senior criminal defence lawyers in Toronto, Ontario to boycott all Legal Aid cases regarding guns and gangs and murders. This boycott of serious Legal Aid cases has now extended to the Thunder Bay and Kingston areas. The Bars in other major centres including Ottawa, Hamilton, and Windsor and even Norfolk are looking at a similar boycott of Legal Aid for these cases in the near future.
The reason for this boycott is quite simple. Since 1987, there has only been a 15% increase in legal aid fees for criminal defence lawyers, while during the same time frame Judges and Crown Attorneys have seen their pay scale go up by more than 100%. The reality is, Governments have been able to find funds for policing, crown attorneys and the judiciary, but there is no political will to fund Legal Aid which pays for the defence side of the equation.
In the free and just society there must be funding for both the prosecution and the accused. It should not be only the rich who can afford to be properly defended. At present, the top legal aid rate is $98.00 per hour. On the face this seems to be a lot of money but the defence lawyer must pay out of that $98.00 his office rent, all expenses, his staff costs, law society insurance fees ect. Further, that tariff is not paid on an eight hour a day basis, the legal aid tariff limits the number of hours it will pay for a case even if the lawyer works many more hours than the tariff allows. As a result, for years criminal defence lawyers have effectively been subsidizing the legal aid program.
Hopefully, the Ontario Government will respond and adjust the legal aid tariff to a more appropriate level immediately and implement some type of procedure to deal with the legal aid tariff on an annual basis; rather than leaving it up to the Government of the day to fund or not to fund in the future.
The reality is; that with the degradation of the legal aid tariff, more and more senior counsel will slowly refuse to do these types of cases. Further, a system of mentoring where a senior counsel takes on a junior counsel and teaches them the ropes is also disappearing because legal aid is no longer funding multiple counsels on a single case. Ironically, in such cases the prosecution now routinely has multiple counsels appearing.
If the Ontario Government refuses to deal with these issues, I strongly suspect you will see a broadening of the scope of the boycott in the future. Hopefully, this will not happen.
Shawn Swarts is a partner at the law firm of Cobb & Jones, who practices primarily criminal litigation. Should you have any questions for Ask A Lawyer, please direct them to the Simcoe Reformer or ask a lawyer of your choice.