The Ford Budget – A Call to Action By One Defence Lawyer to the Entire Defence Bar

By: Scott Reid

 

This month we saw the first Doug Ford budget.  To the surprise of no one, but the chagrin of everyone, the Ford government is cutting funding to Legal Aid Ontario (LAO) by approximately 30%.  There is no way to sugarcoat this cut.

It is catastrophic.

First on the chopping block, funding for immigration and refugee certificates.  Some of the most vulnerable persons in the world, fleeing war, torture, persecution based on race, ethnicity, gender, and sexual orientation, now will have no way to retain counsel to assist in seeking asylum in Canada.

Next up, employees of LAO.  It’s not clear how long until LAO starts cutting full-time positions, but clearly it’s just a matter of time.  The quickest and easiest way to save expenses is to cut staff.  I would anticipate that within a month or two, LAO will start a campaign of shedding its workforce through attrition (ie. without replacement hiring), as well as layoffs when it becomes apparent that LAO’s required savings cannot be achieved through attrition alone.

Finally, however, we come to the proposed savings through criminal certificates.  These cuts will not only hurt those accused of crimes (presumed to be innocent and often fighting an uphill battle to clear their names), but also the administration of justice, and the ability of defence lawyers to competently represent their clients.

The change to financial eligibility will mean fewer low-income defendants will qualify for LAO assistance in the first place.  What does this mean?  It means, first and foremost, that there will be many more self-represented defendants in court.

Trials for self-represented defendants take significantly longer than trials where the defendant is represented by counsel.  In my experience, about 50% longer.  What would be a two-day trial with counsel is set as a three-day trial without counsel. (For more on the many problems arising from  self-represented litigants in the justice system, see this blogpost by Marianne Salih: David and Goliath: the Unrepresented Litigant)

With a significant increase in the number of self-represented trials, but the availability of court space for criminal trials remaining the same, the result will be increased delays in getting all matters, self-represented and with counsel, to trial.  In the post-Jordan age where delay is the critical factor, it seems like the Ford government is shooting itself in the foot.  If it wants to reduce delay, an easy route would be to increase funding to LAO to allow it to fund counsel for more defendants, not fewer.

The reduced number of certificates being issued, however, will lead to a double-whammy of delay.  Now that fewer people will be receiving certificates, more defendants will no doubt be bringing Rowbotham applications to compel the government to fund their defence, lest their charges be stayed.

Interestingly, the Ministry of the Attorney General (MAG), which deals with such applications, used to pay counsel (if the application was successful) back to counsel’s first involvement in the case.  What did that mean?  Simply, that counsel would move the matter forward by reviewing disclosure, setting Crown and Judicial pre-trial conferences, and sometimes even setting trial or preliminary hearing dates, before receiving the ruling on the Rowbotham in a demonstration of good faith and an effort to move matters forward expeditiously.  Counsel understood that if the application was successful, they’d be paid for their work, and they were prepared to take the risk that if the application was unsuccessful, they would have worked for free.

Now, however, MAG has a different policy.  They will only pay for work performed after the issuance of the Rowbotham order, not before.  The impact of this policy change will be stark.  Chances are, counsel will no longer be willing to work for free for several months in the anticipation of receiving funding down the road.  Counsel will now, likely (and rightfully), refuse to move the matter forward until the application is decided which will, again, slow down the progress of matters through the criminal justice system.

Couple that policy with more Rowbothams being brought in the first place because of a reduction in LAO certificates being issued, and the crisis point for the criminal justice system appears clearly on the horizon.

On an interesting side-note, it is likely that as more such applications are brought, their success rate will at a minimum remain the same.  That means that more charges will either be stayed, or that more Rowbotham certificates will issue.  Rowbotham certificates are paid exactly like LAO certificates, but don’t come out of LAO’s pool of resources.  Where do the funds come from to pay for Rowbotham certicates?  MAG’s general operating funds, which, by the way, is where a substantial portion of LAO’s operating funds come from.

What does all of that mean?  Reduced funds for LAO will lead directly to increased costs coming out of MAG general operating funds.  Few, if any, savings.

One final note.  Another way in which LAO has decided to cope with budget cuts imposed by the Ford budget is to eliminate second counsel funding on homicide cases, and likely by eliminating or severely curtailing Big Case Management budgeting for EVERY case except for homicides.  Both of these decisions are disastrous for the defence bar, and hence defendants and the administration of justice at large.

Firstly, the junior / second counsel issue.  Walk into any murder trial in the province and you will likely see the same thing.  Two (sometimes three) Crown counsel prosecuting the defendant.  You used to see, usually, two defence counsel defending the accused.  Why?  Because murder cases present unusual challenges.  There are mountains of disclosure.  Dozens of witnesses.  Numerous and different types of experts.  Complex legal issues.  Expecting one lawyer, on either side, to deal with all of that is simply unreasonable.  There aren’t enough hours in the day to be in court from 10am – 5pm, then research legal issues, prepare for the next day’s witnesses, get some sleep, and do it all again.  Tasks have to be delegated.  There has to be a division of labour.

Now, the Crown will be able to prepare, but all of the preparation for the defence will necessarily fall on one counsel’s shoulders.  This change in policy will have one immediate effect – it will be far more likely that mistakes will be made.  It is inevitable.  Lawyers aren’t perfect.  They are human like everyone else.  When there are time constraints, choices have to be made.  Tasks prioritized.  What will happen when defence counsel has to make the choice between preparing to cross-examine a critical witness or researching a novel and complex area of law?  What happens if, as a result of that dilemma, something gets missed, and an innocent person is convicted of a crime they didn’t commit?

Furthermore, the second chair / junior counsel funding has always served to allow junior counsel to gain experience on complicated cases.  It allows them the opportunity to not only see experienced trial lawyers in action, but to get in on the action themselves, under the supervision of senior lawyers.  In other words, it allows junior lawyers to develop the skills and experience required to eventually work on complex cases as lead counsel.

The elimination of junior counsel funding eliminates the mentoring opportunity which is critical to experiential learning in the field of criminal justice.   It hamstrings the next generation of criminal defence lawyers, delaying their readiness to take the reins from the old guard.

Secondly, and perhaps more insidious is the anticipated elimination of Big Case Management (BCM) Funding for all cases except for homicides.  The BCM protocol has historically set budgets for large, complicated prosecutions.  It set out a number of hours the lawyer could use to prepare for preliminary hearings or trials.  It took the place of the LAO Tariff in large complex cases.

Let me provide you with a concrete example.  Imagine a project case, a large gang prosecution.  There will be dozens of police witnesses, perhaps hundreds of civilian witnesses, thousands of wiretap intercepts, hundreds of hours of witness statements.  All of that may be on top of surveillance video, expert reports, social media evidence, and real, physical evidence.

The LAO Tariff would give defence counsel nineteen (19!) hours to prepare for trial.  But, out of that allotment of 19 hours, counsel has to appear for various remands, conduct Crown pre-trial conferences, prepare a statement of issues (for preliminary hearings) and prepare or respond to applications at either the preliminary hearing or trial.

What are the odds that counsel, even experienced counsel, can do all of that in 19 hours?  In cases such as that, there can easily be more than 19 hours of wiretaps to listen to, or police interviews to watch.  How does LAO expect counsel to competently represent clients, who are presumed to be innocent and who often are factually innocent, when they cannot even review all the disclosure which applies to their client?  Under a BCM budget, LAO might allocate 200 – 300 hours for counsel to prepare for trial in such a case.

If this policy change comes to pass, it is a disaster waiting to happen.  Apparently LAO and the Ford government expect counsel to expend hundreds of hours working for free.  Or they expect counsel to simply not do the work and risk participating in a miscarriage of justice, or being found to have incompetently represented their client.

The question, then, is what is defence counsel expected to do?  Should we simply accede to the Ford government’s throttling of the rule of law?  Should we just do the best we can on the limited hours LAO will give us to defend the most vulnerable litigants in the system?  Should we vociferously, but politely, call on government to return funding and LAO to reverse their policies.

We could do any or all of those things.

Or we could take concrete steps which might result in a reversal of these misguided and short-sighted policies.

I call on all defence counsel in Ontario to engage in the following actions to bring home to the government and its bureaucrats the harm that these policies are having, not only to defendants, but to the justice system and the rule of law as well.

1. Refuse to do any work on a file until you are actually and fully retained with a Legal Aid Certificate. Do not do Crown pre-trial conferences.  Do not assist your self-represented client on judicial pre-trial conferences.  Do not review the disclosure.  Do nothing except adjourn you client until a LAO certificate is issued and you are retained.

2. In every case in which LAO is denied where you feel a certificate would have been issued under previous LAO financial guidelines, advise your client to appeal the refusal all the way up to the provincial office, and continue to adjourn your client until all appeals are exhausted. Continue to refuse to move the matter forward until you are retained.  Protect the record by indicating that were you retained, you would certainly be willing and able to do so, but given LAO and MAG policies, you simply must decline the Court’s invitation to participate until you are retained.  While the defendant will have to participate in these meetings, counsel does not.  These meetings will have to be redone with counsel once retained, and if counsel is not available, the trial dates will have to be reset.

3. Where LAO is refused on a full and final basis by the provincial office, bring a Rowbotham application in each and every case. Flood your court with meritorious applications.  Force the government to pay anyway and show Mr. Ford that there are no savings to be had by slashing LAO funding and burning the system to the ground.

4. I encourage all immigration and refugee lawyers to fashion their own Rowbotham I fail to see how immigrants and refugees have any less a right to a fair hearing than criminal defendants, particularly since many of them await their IRB hearings in detention and the consequences of their matters may be just as serious to them as to criminal defendants.  Force the government to fund your client’s representation.  Nullify any savings the government hopes to obtain by increasing the costs of litigating the funding application, followed by obtaining the funding you would have gotten anyway had they just issued you a certificate.

5. Furthermore, I call on defence lawyers everywhere to bring applications to properly fund your LAO certificate. Bring applications to courts of competent jurisdiction and point out that you either require a set number of hours to be paid on the LAO or Rowbotham certificate you’ve received, or you aren’t acting for the client.  Litigate this issue, and convince the courts that if you act under the Tariff, you’re acting incompetently and you refuse to do that.

6. On a related point, this requires solidarity. Fellow lawyers cannot undercut the movement by agreeing to take on cases at the Tariff hours where other counsel have removed themselves.  We must remain united in the face of perhaps the most devastating cuts to LAO in a generation, and if we do, we have the potential to reverse these cuts and have a positive impact on the administration of justice.  If those among our number undercut each other, take on clients for the short-term benefit of increasing their client base, the movement will fail.

7. Finally, consider bringing section 11(b) applications pro-bono for those clients of your who, after going through all the above steps, find themselves well past the Jordan Step back into the fray at that point, take up the call and show the government what their cost-cutting steps have truly cost.  An end to trials on the merits.  Show them that because of their decisions, serious criminal charges are being thrown out because of the delay the government caused by not properly funding LAO.

These are just a few suggestions.  No doubt you can think of many more.  Probably ones which are more effective than those above.  The point is to act, not simply to talk.