Legal Aid Funding to Increase Provincially

Provincial Legal Aid will be provided with $30 million per year from the Justice Department. This, coming after 13 years of federal contributions remaining stagnant at $112 million per year. 

“All Canadians — no matter their means — should have the right to a fair trial and access to a modern, efficient justice system,” Justice Minister Jody Wilson-Raybould said in a statement issued Wednesday. - via Toronto Star

Why is this important?

"Since there are no constitutional requirements under the Charter of Rights and Freedoms to provide civil legal aid outside of child protection cases, most legal aid programs end up giving a higher priority to providing lawyers to defendants facing incarceration in the criminal courts." via Global News

• This has created a gap that has left an inadequate access to justice for working people and statistically speaking, working women, as they are the demographic that largely applies for family legal aid. 

“The demographics are that family legal aid is used predominantly by women and criminal legal aid is used predominantly by men,” said Karen Hudson, executive director of the Nova Scotia Legal Aid Commission.- via Global News

• If a person is earning an income above what is noted on these eligibility charts, they cannot access legal aid, which means they cannot afford access to legal representation and are then forced to self-represent which has led to major delays in our court system. 

"David Price, a Superior Court justice in Ontario, figures about half the litigants undertaking family and civil law motions in his Brampton, Ont., courtroom are doing so on their own. “If they’re not able to supply the necessary evidence and legal argument, the judge’s task and the time required to perform it will be greater,” he said by email (Price stressed that his remarks were based on his own experiences, and that he is not a spokesman for the court). Self-represented litigants are less likely to settle out of court, the judge added, and the delay causes frustrations for everyone involved. “The judge is disappointed to find that fewer cases on the list settle,” he said. “The litigant is disappointed to find the judge cannot decide the case immediately.” - via MacLeans

If you or someone you know requires legal aid, please contact 1-800-668-8258, Monday-Friday between 8:00 a.m. and 5:00 p.m.

- Rachel Spence, Law Clerk

Visit our Toronto Law Office website: www.wiselaw.net

Ontario Court of Appeal Increases Compensation for Court-Appointed Lawyers

The Ontario Court of Appeal on Tuesday issued an important ruling regarding public payment of legal fees:

Judges have the power to not only appoint lawyers to represent the interests of accused people, but to set the fees they’ll be paid from the public purse, the Ontario Court of Appeal has ruled.

In a unanimous decision Tuesday, a three-judge panel rejected arguments from Ontario’s attorney general that judges have no business setting compensation for court-appointed lawyers because only the Legislature can decide how to spend money from the province’s consolidated revenue fund.

The decision in R. v. Russel is in some ways a major step forward in public funding of unrepresented persons, which has been an issue in Ontario for several years now. In 2009, Ontario criminal lawyers boycotted Legal Aid cases on the grounds that Legal Aid was underfunded and did not give them the resources to effectively represent their clients until the province agreed to increase funding for Legal Aid.

In Russel the Court of Appeal seemed to at least partially recognize this sentiment by agreeing with the trial judge who assigned payment to the lawyers operating as amicus curiae on Mr. Imona Russel's behalf at rates well in excess of Legal Aid rates, on the basis that his case was complex and that the client had been exceptionally uncooperative with previous counsel, which was why he no longer qualified for Legal Aid. (The question of whether Mr. Imona Russel's lack of cooperation would have been so great an issue in a relationship with a more generously compensated lawyer is simply too hypothetical to answer, and one both hopes and expects that most lawyers would be as patient as possible with a fractious client regardless of their compensation.)

Now, amicus curiae are not, properly, counsel to the defendant; in a situation such as this they advance legal argument on his behalf, but are not in any sense his client and therefore are not obligated to take instruction from him. The Court of Appeal rejected the Attorney General's argument on appeal that this constituted an end-run around the Legal Aid limits:

This submission fails for three reasons. First, the Legal Aid Services Act does not apply to amicus. Second, amicus were appointed because, in part, the legal aid scheme could not adequately respond to these cases, in large measure because of the conduct of the accused. Third, amicus does not perform the role of defence counsel. For example, we agree with the reasons of Forestell J. that the task asked of amicus in Imona Russel #1 cannot simply be equated with defence counsel. It was not. It was to assist the court in very difficult circumstances, in part by performing some of the services of defence counsel for a completely uncooperative client but also serving the much broader interests of the administration of justice as described below.

Of course, if amicus are not defense counsel, but the nature of the case required that they be paid more than defense counsel being compensated through Legal Aid, this then demands that we ask why counsel for Legal Aid were not paid as highly in the first place. The Court states that the events in Russel are exceptional because of the defendant's conduct, but criminal defense lawyers working with Legal Aid clients frequently have to defend clients only marginally less difficult (many clients with mental illnesses wind up on Legal Aid rolls). Does not the difficult nature of that work, then, following Russel, demand higher compensation?

- Christopher Bird, Toronto

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'Legal Expense Insurance' Coming to Canada?

The Toronto Star reports today that a German firm is seeking federal approval to bring a legal insurance plan to Canada.

The proposed, private insurance plan will cost approximately $500.00 annually, and will provide up to $100,000 coverage for legal fees and adverse costs orders in civil and criminal matters. Family law matters will be excluded.

The Star article notes:

...the federal government's superintendent of financial institutions has been asked to approve a plan that would allow Canadians to purchase insurance premiums for less than $500 a year, which would cover up to $100,000 in legal expenses, including the cost of a lawyer preparing and arguing a case court.

The types of cases covered could include wrongful dismissal and other employment disputes, tax problems, personal injury claims and property fights with neighbours, according to Barbara Haynes, chief executive officer of DAS Canada, the Canadian arm of the German company seeking to do business here.

This sort of plan may represent a positive development in addressing Ontario's chronic access to justice issues, particularly in view of the systematic deterioration of our Legal Aid system.

One wonders, however, how long it will take for taxpayers to demand a genuine "public option" for basic legal coverage. To borrow from a current American buzz-phrase, do you really want an insurance company bureaucrat coming between you and your lawyer?

The question is not just a rhetorical one.

Of course it is a good idea to make some form of financial coverage for legal services available to the public. Unionized auto workers have had basic, pre-paid legal services coverage for quite some time.

Our concern relates to the details, rather than the general concept of this reported proposal:

1. To what degree will insurance company approvals for specific legal procedures and actions be mandated by any ultimate plan?
2. Will the right for individuals to the legal counsel of their choice be preserved?
3. How will solicitor and client privilege be protected if ongoing reports by counsel to the insurer are to be required under an insurance plan?
4. What will the public's recourse be in the event of questionable denials of coverage?
5. Perhaps most importantly, how will the privacy of litigants enrolled in such a plan be protected internationally?

Canada's law societies and bar associations must have a place at the table in discussion and planning for these types of legal insurance vehicles.

Such insurance plans could represent a genuine breakthrough.

But we should proceed carefully - if we are heading down this road, let's get it right from the outset.

- Garry J. Wise, Toronto

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Quote of the Day: Legal Aid a "Triumph of Equality"

Frank Addario, President of the Ontario Criminal Lawyers Association, on the continuing boycott of serious criminal cases by the Province's legal aid lawyers:

Elected politicians have to declare themselves on access to justice for the poor. Governments that genuinely support equality must provide stable, long-term funding for legal aid programs. No waffling, half-measures or hedging will do.

Legal aid is modern social justice at its best. It is a triumph of equality when good lawyers accept such cases. It means that no matter how poor a person or how disorganized their life, a talented lawyer will speak for them.

In the legal system, at least, poverty takes a back seat. This beautiful ideal shows the rest of the world how we define justice. It's time to restore its sheen.

- Garry J. Wise, Toronto

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Ontario Legal Aid Boycott Continues

David Shulman at Law is Cool provides an update on Ontario criminal lawyers' continuing boycott of this Province's terribly underfunded legal aid system.

- Garry J. Wise, Toronto

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Will Massive Ontario Legal Aid Deficit Threaten Service?

Legal Aid Ontario faces a budget shortfall of $56 million, and service cutbacks to may lie ahead, according to a report today by the Globe and Mail's Kirk Makin:

The Ontario legal aid plan faces a staggering $56-million budget shortfall - a funding crisis that comes as it is already reeling from a boycott by senior criminal lawyers.

In an internal memorandum obtained by The Globe and Mail, Legal Aid Ontario president and chief executive officer Robert Ward warned that the impact of the deficit promises to be "very significant," and will soon necessitate a cash infusion unless quick action is taken.

The memo - written on April 9, 2009 - ascribed $40-million of the shortfall to a precipitous drop in funding this year from the Law Foundation of Ontario, which gives LAO interest payments that accumulate on its trust accounts, which are administered by lawyers.

..Association of Legal Aid Lawyers ...chairman Walter Van de Kleut said that government funding has failed to keep pace with inflation over the past two decades, a pattern that threatens the entire program.

"Now, we are learning there are plans to impose so-called 'efficiencies' to the program," Mr. Van de Kleut said. "They want to 'rationalize' legal services - which is business-speak for degrading existing funding. Just when the poor and unemployed need a hand up, they're getting a slap down."

- Garry J. Wise, Toronto

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Rachel's Bits and Briefs

Here are a few notes for the weekend:

Ontario Criminal Lawyers' Legal Aid Boycott Expands

An Ontario Legal Aid boycott by criminal lawyers has now expanded to reach Kingston and Thunder Bay, reports the Law Times. The Criminal Lawyers Association (CLA) is organizing quickly to effect change to a legal aid program that it argues has been “broken for over 20 years.”

“A lot of the work we’re doing for free. The Crown’s office and the judges are being compensated handsomely for the system to run, and we haven’t been compensated in the last 20 years adequately at all” stated Gil Labine, the Thunder Bay CLA’s Regional Director.

CLA President Frank Addario recently met with Attorney General Chris Bentley to discuss the association’s agenda. Mr. Bentley "was not able to commit at this time to the improvements that are critical to ensuring a sustainable and equitable legal aid system,” said Mr. Addario. Currently, Ontario's maximum legal aid rate is $98.00 per hour, which many lawyers feel fails to address their high overhead costs.

The Globe & Mail reports that over fifty Law professors have added their support to the boycott as has the Law Society of Upper Canada, which released the following statement directed towards the Attorney General:

“We believe that access to justice is not an abstract notion, but a constant public policy challenge that requires adequate public funding.”

(Image courtesy of http://www.cartoonstock.com/)

Is it Time to Update Your Passport Photo?

The Toronto Star reported July 1st that a Toronto woman was jailed, fined and detained in Kenya for “no longer looking like her passport photo.”

Suaad Mohamud Haji, 31, stated that she “has lost weight, changed her glasses and maybe looks a bit darker-skinned since the photo was taken more than four years ago.” She was held in jail for 8 days, required to post bail of $2,500.00 (U.S.) and has been waiting for 2 months to hear back about a hearing that could lead to further jail time.

The single mother of a twelve-year-old son flew to Kenya to visit her sick mother and upon her May 17th return flight, was detained. Ms. Haji stated in the article that she leaves messages for the Canadian High Commission every day and “nobody returns her calls.”

The Toronto resident faces a Court hearing July 21 and fears being sent back to jail if Canada will not vouch for her.

- Rachel Spence, Legal Assistant, Toronto

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B.C. Court of Appeal: No Fundamental Right to Civil Legal Aid

The British Columbian Court of Appeal expressly ruled yesterday that Canadians have no fundmental right to government-funded legal aid assistance in civil matters.

Madame Justice Mary Saunders delivered the Court's Reasons for Judgment: which upheld the September 2006 dismissal of a B.C. court action by the Canadian Bar Association "to force governments to provide adequate civil legal aid to poor people,"

Access to legal services is fundamentally important in any free and democratic society. In some cases, it has been found essential to due process and a fair trial. But a review of the constitutional text, the jurisprudence and the history of the concept does not support the respondent's contention that there is a broad general right to legal counsel as an aspect of, or precondition to, the rule of law.

Costs were also awarded against the C.B.A.

- Garry J. Wise, Toronto

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Ombudsman Slams Legal Aid Ontario, Province Sues Convicted Cop

According to media reports, the Ontario Government is suing convicted former Toronto Police officer, Richard Wills, to recover $1.2 M of public money spent on his "preposterous" defence of first degree murder charges arising from the death of his long-time lover, Linda Mariani.

Wills was convicted of the charges last fall and is serving a life sentence in the Kingston Penitentiary.

The whopping defence bill caught media and public attention after it was revealed through family court documents, filed as part of a separation agreement with his wife, that Wills was a millionaire when he surrendered to police.

It is alleged in the Province's lawsuit that Wills transferred his assets to his wife Joanne and sister Patricia Rogers, so that he would be eligible for Legal Aid. His wife and sister are co-defendants in the action.

In a contemporaneous development yesterday, Ontario Ombudsman, Andre Marin, released a scathing eighty-four page report titled “A Test Of Wills” yesterday.

The Ombudsman was scathing in his criticism of Legal Aid Ontario for its handling of the case. Quoted in a Toronto Star article today, Marin stated:

Legal Aid Ontario failed, and the Ontario taxpayers lost. So did the Ontario justice system...

Legal Aid Ontario chose to approve bills as long as the math was correct, without budget or limit, no matter how extravagant the costs or how needless the work... Worse still, it led judges, prosecutors and the ministry of the Attorney General to believe that things were in hand when they were not.

In his report the Ombudsman commented:

“People wanted to know how unconscionable sums of public monies came to be spent defending a man who, shortly before he was arrested, bragged about being a self-made millionaire.”

“He hived off his assets while abusing the generosity of tax-payers. He should have to reimburse the province for the legal fees wasted in his cause”

Read the National Post story “$1.5M in Public Money Spent to Defend Wills,” published October 31st 2007, for the details of the funding.

- Shashi K. Raina, Toronto

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Law 21 and Articling for Law Grads in Ontario

Jordan Furlong, lawyer and editor-in-chief of the Canadian Bar Association's National magazine has a new blog, Law21, that came to my attention via Connie Crosby.

How can he miss, with a provocative profile teaser like this?

In the 21st century, the practice of law is shaking loose from its traditional moorings and heading out into uncharted territory. Opportunities abound, but so do pitfalls. Most of the old rules won’t apply anymore, while some will matter more than ever.

Welcome to the new legal profession, powered by collaboration, innovation, and client service. This is your front-row seat.

Mr. Furlong's comprehensive analysis of the Law Society of Upper Canada's current task force review of Ontario's bar admision and articling processes is a must read (Part 2 is here).

On the topic of articling, I'll quickly opine that it is nothing short of nutty to propose an abolition of the articling requirement for law school graduates.

If the primary issue is that articling jobs are hard to find, surely the Law Society brain trust can bang heads with the Attorney-General's office, Ontario's private law firms, the Legal Aid Plan and the various, cash-starved community legal assistance clinics throughout the Province to create numerically unlimited, supervised articling placements (pro-bono or subsidized) that will actually do something about the chronic access to justice difficulties in this Province.

I personally can't imagine where I would have been on day one of my law practice in 1986 absent the benefit of the mentorship I received during my own articles from Douglas Lissaman, Gordon Atlin and Richard Belsito. Twenty-plus years later, I am still influenced by their lessons and very different philosophies.

The practical apprenticeship component of legal training in this Province is not just an anachronistic throwback to a kinder, gentler era - it is a necessary step in preparing new professionals for practice in the real world.

- Garry J. Wise, Toronto

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Legal Aid Spending Down

National Post reports that the legal aid spending was down 4% in 2006-2007 from the 2005-2006 spending level.

Apart from a drop in the overall number of applications for Legal Aid, the number of lawyers taking on Legal Aid cases also dropped by 9% over the previous year.

According to Statistics Canada, Legal Aid cost every Canadian $20 last year.

- Shashi K. Raina, Toronto

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Legal Aid Ontario's Most Difficult Case

The Defence for the terror suspects arrested in summer of 2006 for various terrorism charges is expected to cost the Province of Ontario more than $8 million dollars. With more than 14 accused involved, Legal Aid Ontario has described it as the "most difficult case to manage to date".

Guilty or not, tax payers will have to foot the bill.

Canada.com has the Full Report.

- Shashi K. Raina, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Pro-Bono Law Ontario Increasing Access to Justice Where No Qualification for Legal Aid

According to Legal Aid Ontario’s 2006 Annual report, over 1 million Ontarians received assistance through legal aid in 2006.

In 1996, legal aid's financial eligibility requirements were tightened by 22%. They have not been raised since.

This has resulted over time in fewer Ontario residents qualifying for legal aid, although many unqualified applicants remain unable to afford an average lawyer’s hourly rate and retainers.

Many who fall into this group have begun representing themselves. This has led to a backlog in the court system as a result of such litigants' unfamiliarity with both Court rules and available alternative services.

Some Canadian law firms have taken notice and are attempting to initiate change through Pro- Bono Law Ontario. The National Post reports:

Ontarians who can't afford to hire a lawyer will soon have another option, as Canada's biggest law firms look to take a small claims court program that provides legal assistance to those who don't qualify for legal aid and extend it to lawsuits in the province's higher court, the Superior Court of Justice.

It's a concerted attempt by the legal profession to improve access to justice and tackle the problem of self-represented litigants, who are clogging the court system.

Pro Bono Law Ontario, a non-profit organization that runs the program, will open a self-help clinic to be staffed by lawyers from local firms. It's designed to build on the success of the small claims court program, which has served more than 1,000 people since June and provided more than $500,000 in free legal services.

- Annie Noa Kenet, Toronto

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