Criminal Case, Legal Aid

Legal Aid Ontario announced drastic cuts to their certificate program today. While these cuts were focused on a number of areas of law, my focus as criminal defence counsel is on the impact to the criminal justice system.

Certificates and an Overview of Funding Cuts

For those unfamiliar, a Legal Aid ‘certificate’ is effectively a voucher that covers the cost of a lawyer for a certain number of hours (the number of hours depends on the type of service, the seriousness of the charge, and other factors). In the criminal law context, these certificates are issued to people charged with offences who qualify both (1) legally (i.e., are facing the prospect of jail) and (2) financially (i.e., are effectively below the poverty line). I have very strong opinions on certificate eligibility, but for today’s purposes, my focus is on the specific cuts announced today.

In April, the Provincial government reduced Legal Aid funding by 29%. As the largest provider of funds to Legal Aid Ontario, we in the criminal defence bar held our breath. It was immediately clear that Refugee Law services would take the biggest hit, but broad spectrum cuts were inevitable.

Today, only 60 days later, we found out that the cuts would include a reduction of certain funding ‘blocks’ (e.g., the number of guaranteed hours for helping indigenous clients have their cultural factors adequately before the Court on sentencing) and somewhat administrative cuts (e.g., the certificate ‘acknowledgement fee’). However, sweeping cuts were made to the bail services that certificate lawyers were authorized to provide, which has sent shockwaves through the justice system.

The Reasonable Cuts

I will start by saying that there are certain changes that I do not disagree with in principle. Until today, Legal Aid paid a $50 “acknowledgement fee” to any lawyer accepting a Legal Aid Certificate, which guarantees funding to that lawyer. Given that we are paid either an hourly rate or block fee according to a tariff structure, I will confess that I never understood the logic behind that $50 fee.

The most recent Annual Report issued by Legal Aid Ontario (2017-18) indicates that 56,777 criminal certificates were issued for the year. This was down somewhat from previous years, but provides the most recent point of reference. All things considered equal, at $50 per certificate, cutting the administrative acknowledgement fee would save $2.84M. However, the fee only applies to certificates that are billed hourly (e.g., all matters set for trial, youth matters, and particular more ‘serious’ charges), so there is no clear calculation to be made here without more internal statistics.

Rationale Behind the Changes?

I will pause here to say that the lack of communicated rationale for these changes is perhaps the most troubling aspect of the announcement.

Many of the cuts or changes seem, on their face, to be completely arbitrary. For example, Legal Aid Ontario recently piloted a program to speed up payments to lawyers once accounts are approved to a 14-day standard. The change to be implemented as of June 26, 2019 will see this turnaround time doubled. It is utterly unclear what benefit that this could possibly have to the Legal Aid bottom line, but particularly for lawyers in the early stages of their careers, this extended turnaround time for compensation could seriously compromise their well-being.

For two areas, DNA sentencing submissions and bail reviews, token ‘justifications’ were issued in the Legal Aid Ontario bulletin.

First, DNA sentencing submissions. Briefly, when being sentenced for certain criminal offences, a judge can order an offender to provide a sample of their DNA for databanking, to be used as an investigative tool in the future. Where the order is not mandatory, the test for the judge is to determine whether the privacy interests of the offender outweigh the interests of society, given the information before the court about the offending behaviour.

Until today’s announcements (and effective July 7, 2019), counsel retained pursuant to a Legal Aid certificate could bill for 2 hours (automatically applied if not an ‘hourly’ certificate) when the prosecution applied for DNA and counsel contested the order. This may seem inherently reasonable, but in practice, the entire process underlying a DNA ‘application’ would be a few minutes or less integrated into a typical sentencing hearing.

I could have easily included this in the ‘Reasonable Cuts’ heading, but for the apparent logic applied behind cutting the DNA funding:

Because of technological and legal advances, extra coverage for DNA sentencing submissions will no longer be available, and submissions can be covered under the current base tariff. The block fee base rate that includes DNA submissions will remain the same.

I am still scratching my head when I consider to which ‘technological advances’ this statement refers.

Second, bail reviews. This is effectively an appeal of an existing bail decision on the basis of a legal error committed by the justice at the bail hearing, or a material change of circumstances in the accused person’s situation (e.g., a new person is available to supervise).

Legal Aid Ontario offered this explanation:

Meritorious bail reviews will be funded at 5 hours per bail review (instead of 10). Certificate counsel will also resume applying for authorization before proceeding on bail reviews. In 2015, LAO increased bail review coverage from 5 to 10 hours to encourage the private bar to bring more bail reviews and address overreliance on onerous conditions of release. The additional hours did not result in increased bail review applications.

The logic here is apparently that they doubled the number of hours available for counsel to bill on a bail review to incentivize more bail reviews to be conducted by legal counsel, but more bail reviews were not brought, so they are slashing the funding in half.

To me, as someone with experience conducting bail reviews while funded by a Legal Aid certificate, the lack of additional bail reviews brought when the hours available were doubled leads me to two logical inferences: (1) 10 hours is still drastically insufficient for the drafting, research, meetings, other preparation, and court time needed to properly conduct a bail review (which is absolutely true, in my experience), and (2) lawyers on the criminal law certificate panel were only bringing bail reviews for their clients when there was merit and it was in the interests of justice, rather than exploiting the enhanced funding.

Despite these two plausible inferences, Legal Aid Ontario offers that because the increased funding did not result in more use of the bail review authorization, it follows that the funding is not justified. You will recall that an entire 60 days preceded today’s announcement.

Extinction Level Event for Civil Liberties: Slashing Bail Hearings

Without a doubt, the most significant change for most criminal lawyers will be the funding changes to bail hearings. The announced changes (effective July 7, 2019) are even more complicated by the obtuse language used to announce them:

Certificate lawyers may no longer bill for bail hearings on block fees. On these matters, duty counsel will continue to be available to provide bail services. For more complex tariff cases, including those in LAO’s Big Case Management program and matters set for trial, certificate counsel may bill for bail hearings.

As a defence bar, we are still reeling to determine when, if ever, Legal Aid Ontario will pay us to run bail hearings for our most vulnerable clients.

Since learning about today’s cuts this morning, I have been mulling it all over. I’ve spoken to colleagues on both sides of the criminal bar, and considered my own business structure. I have considered the difficult position in which the government put Legal Aid Ontario just 60 short days ago. I wasn’t going to write about this, nor publicly comment. But then I saw this tweet:

All accused people in Ontario will CONTINUE to receive representation in bail court. Staff lawyers (duty counsel) already do the vast majority of bails. Starting July 7, they’ll do more.

— Legal Aid Ontario (@LegalAidOntario) June 12, 2019

To me, this reads strongly as a justification for the cuts, which frankly did not need to be offered. Legal Aid Ontario and its staff have every right to be frustrated by the Ford government’s drastic and sudden cuts to their funding. As a Crown Corporation, unsolicited and completely false justifications for cuts to the certificate system are particularly egregious, and have caused me to rant for these 2000 words.

I have been practising in Kitchener-Waterloo for more than four years, after working for Legal Aid Ontario in Simcoe County. For the past approximately three of those years, our local duty counsel have had a strict mandate to never conduct a bail hearing for an accused person represented by counsel, whether on a Legal Aid certificate or privately retained. Full stop.

There have been times when I have had a client arrested when I am in a lengthy trial, in other jurisdictions, or otherwise unavailable, but because I have held the Legal Aid certificate for that accused person (i.e., the person presumed innocent of the criminal charge(s) and guaranteed reasonable bail under the Canadian Constitution), duty counsel have been forced to refuse service, despite being available in the very court where my clients appeared for bail hearings.

There is some upside to this approach. It ensures that accused individuals are afforded the representation that they prefer and get their counsel of choice, or another lawyer approved of as their agent at a bail hearing. The obvious downside being that sometimes this means a delayed bail hearing.

I cannot speak to all jurisdictions, because the majority of my practice is in Kitchener-Waterloo. However, K-W is one of the largest regions in Ontario by population, and our courthouse is quite bustling. This is the reason why I am quite comfortable in saying that “Staff lawyers (duty counsel) already do the vast majority of bails” is simply not true. In Kitchener, we see even the most experienced criminal defence counsel conducting bail hearings, in large part because our clients have been prohibited from using duty counsel services when they have retained a lawyer.

I will be quite clear: duty counsel are not the problem. Having worked as duty counsel in the past, I can speak firsthand about how gruelling and thankless that job can be. Duty counsel have a very limited timeframe (i.e., the day they meet the client) to handle a matter. In bail court, this means a rapidfire interview with the accused, their potential sureties (the person or people offering supervision), and making countless phone calls to arrange a bail plan and conduct the hearing. It is overwhelming. It is daunting. It is also the very reason why an integrated bail court system incorporating both duty counsel and the private bar is essential.

For the purposes of this post, I will choose to gloss over the fact that the bail funding being cut only guaranteed 2 hours per bail hearing, including preparation, meetings and interviews with sureties and clients, and conducting the hearing itself (my average bail hearing on even a simple case involves 4 hours, at a minimum). However, I mention this, because it shows how illusory the notion of cost savings is with today’s cuts.

There are two types of duty counsel in our criminal courts: Legal Aid staff lawyers and per diem duty counsel (private lawyers paid at the Legal Aid hourly rate to work as duty counsel on a day-to-day basis, as needed).

For per diem duty counsel, they bill their hourly Legal Aid rate for the number of hours actually worked. For example, this means that in a situation where a per diem duty counsel lawyer who starts a shift at 9am, meets a client, prepares a bail hearing, works through lunch, conducts that single bail hearing, and finishes at 5pm rightfully bills for 8 hours of work. This same bail hearing, taking all day, conducted by private counsel on a certificate would only cost Legal Aid Ontario 2 hours of work.

I use this simply as an illustration. Of course, the role of duty counsel is not so simple, and there are plenty of days when duty counsel will deal with many more individuals than the single bail hearing, whether running full hearings or not. However, the private certificate system offers cost certainty. Particularly, that the private lawyer will only bill when a bail hearing proceeds (not when hours are spent in court only for a matter not to be reached or for a bail plan to fall apart prior to or during a hearing) and it will be capped at 2 hours, irrespective of how long it takes.

Many of us have grinded through bail hearings for our Legally Aided clients over the years, working our hardest to secure their Constitutionally-protected liberty, while silently resenting the meager compensation offered by Legal Aid Ontario. We do this because we recognize how significant bail is to the ultimate disposition of a matter (I cannot count the number of times a client who is denying guilt pleads with me to assist them with a guilty plea to ‘get this out of the way’ if they are unable to obtain bail).

It is for these reasons why the Conservative party line of Legal Aid ‘paying another lawyer to show up for “2 hrs to bump aside the already available lawyer” is particularly egregious.

Not true. Full-time Legal Aid lawyers are already in bail court to represent the criminally accused seeking bail. LAO is no longer going to pay another criminal lawyer to show up for 2 hrs to bump aside the already available lawyer. Bad news for lawyers, good news for taxpayers. https://t.co/kIaazrZBPa

— Lindsey Park (@lparkpc) June 12, 2019

This is simply uninformed political pandering to people who (understandably) do not know any better. It is frustrating and short-sighted. It is misleading the electorate.

For new lawyers (or those new to criminal law), bail hearings are the bread and butter of a defence practice. For counsel with busy trial and appeal practices, many of us are simply unable to deal with bail hearings quickly and efficiently. However, there are always new, ambitious, and highly competent lawyers able to step in and take the time to prepare and represent our clients at bail hearings (with the consent of the client, of course). It is a way to gain litigation experience with a burgeoning practice, and to establish a reputation in the community. Today’s cuts have all but obviated that opportunity for young lawyers, unless they choose to act as duty counsel and experience the pressure cooker of being duty counsel in bail court. The significance of this cannot be understated.

All of this is to say that the downstream effects of the cuts to Legal Aid bail hearing funding are almost certainly far beyond what was considered prior to today’s announcement. It is also the very reason why there will be no logical justification offered by the government or Legal Aid Ontario for this radical, misguided approach to cost-saving.

What Next?

The oath that we swear or affirm to the Law Society of Ontario, as well as the Rules of Professional Conduct by which we are bound as licensed members of the Bar, include duties of integrity, competence, and promoting respect for the administration of justice, among many others.

Legal Aid Ontario has always functioned as somewhat of an ‘honour system’. Not every single docket can be audited in depth, nor can all claimed work be confirmed. However, the integrity of the criminal defence bar (it truly is not an oxymoron) has ensured the smooth functioning of the system.

It is this very integrity on which Legal Aid Ontario is seeming to rely. The majority of us will not leave our clients high and dry, and setting aside the already low tariffs for allowable hours on a certificate, we will continue to do pro bono work as we are able.

I always say, somewhat tongue-in-cheek, to my clients that if I only cared about money, I would have pursued another area of law, but I am passionate about helping vulnerable clients through the criminal justice system.

Despite this admittedly lengthy reaction post to today’s announcement, which will certainly affect my income, this remains as true as ever. However, I write this not as a reflection of concerns for my own practice and clients, but the criminal justice system as a whole. While many members of the public may misunderstand criminal defence lawyers at the ‘sleazy-do-anything-to-secure-an-acquittal types, nothing could be further from the truth.

The vast majority of my colleagues in the defence bar pride themselves upon their ethics, and we all have constant dialogue about performing our role in accordance with the strictest traditions of the profession. This means frank conversations with clients about what we cannot ethically do, and it means taking cases pro bono to ensure that an accused person does not ‘slip through the cracks’.

The problem with today’s announcement is that Legal Aid Ontario is promoting false information to the public to justify unjustifiable cuts that will have dire impacts on the criminal justice system, and civil liberties as a whole. It undermines the role of the criminal defence bar, and for those of us who already perform countless unpaid hours for our Legally Aided clients, it feels quite insulting.

Access to justice in the criminal justice system is a political nonstarter. ‘Tough on crime’ will always gain more votes than ‘strong on civil liberties’. I am not naïve enough to expect that to change. However, the Provincial government’s cuts, and Legal Aid Ontario’s complicity in the short-sightedness thereof with the propagation of false information makes these recent cuts difficult, if not impossible to swallow.

The criminal justice system in Canada is ‘adversarial’ in nature, but is underpinned by the quest for truth. It is the reason that as defence counsel we cannot coach our clients to lie or even allow them to testify if we suspect that they may perjure themselves.

The cruel irony of today’s cuts is that they are underpinned by false information and a lack of understanding of the very system that Legal Aid Ontario is mandated to protect.