In a recent article I explained that there is a battle brewing between Criminal Lawyers and the Province of Ontario. This battle is in respect to the funding of legal aid. In the past twenty years compensation to lawyers has increased only fifteen percent, at the same time the cost of living has exceeded more than seventy-five percent, and compensation for Judges and Crown Attorneys have increased more than one hundred percent. As a result of the governments failure to address this issue more than seven hundred Criminal Defence Lawyers across the province are no longer taking any murder and or guns and gangs cases. Essentially we are boycotting the most serious cases in this province.
Recently the Attorney General announced an increase in funding of five percent over the next four years to the Legal Aid plan. Although this appears to be a good start the devil is truly in the details. This announced funding would be split between the Legal Aid Clinics and the Family and Criminal Certificate System. Regrettably there is nothing in this announcement indicating that there would be any increase in compensation for the lawyers actually completing the work. It also should be noted that the announced funding increase would not cover the deficient that Legal Aid is presently running. In other words, although the government announced they were increasing funding essentially they were only covering the deficit that they had already agreed to pay.
The Criminal Lawyers Association of Ontario was asked by the Attorney General to end the boycott given this announcement, after meeting the CLA determined that the boycott of all serious cases would continue until serious adjustments to the Legal Aid system had been met.
To end this boycott the Ontario government must do a number of things:
1. Increase the hourly tariff to adequately compensate Criminal Defence Lawyers. As a fifteen percent increase over 20 years in sixty percent below the cost of living and since Judges and Crown Attorneys have been fairly compensated why should the Defence Lawyers work for free?
2. Legal Aid needs to put a funding review mechanism in place so that this crisis does not occur in the future. The Legal Aid compensation model should be adjusted at least bi-yearly through an independent commission that sets an appropriate rate. It is interesting to note that compensation for Judges, Crown Attorneys, Doctors, Nurses, all involve negotiation between the government and the respective parties. Legal Aid compensation is completely one sided with the government determining whether or not they're going to increase funding without any input from the other side. Accordingly, it is no surprise that funding has been routinely neglected for the last twenty years.
It is not fair to expect Criminal Lawyers to work for free as they are an intrical part of the Justice system. If justice is to work there must be three independent parties involved, the Crown Attorney doing the prosecution, the Defence defending the accused rights to the fullest extent possible and an independent judiciary to hear the cases. Our system will not work when two of the three sides are properly funded and one side has no funds to properly defend criminal cases. This is what causes injustice to occur and wrongful convictions to happen.
Sadly there is little political will to properly fund a system that helps people charged with criminal offences. This may be a politically expedient view however, in a free and just society where one is still suppose to be presumed innocent until proven guilty, it is necessary to fund all sides not just one.
Shawn Swarts is a partner at the law firm of Cobb & Jones, who practices primarily criminal litigation. Should you have any questions for please direct them to the Simcoe Reformer or ask a lawyer of your choice.