Ontario judiciary takes on province in bid to raise legal-aid fees

From Thursday's Globe and Mail

A judge has ordered the Ontario government to pay a defence lawyer nearly double the regular legal-aid rate to fight a murder trial, stepping up a mini-revolt within the judiciary over the province's legal-aid fee structure.

In making the payment order, Mr. Justice Colin McKinnon of the Ontario Superior Court said he was rejecting the province's stand that judges have no business "appropriating money from the provincial coffers" to impose their view of a fair fee.

Judge McKinnon awarded defence counsel Catherine Huot a fee of $150 an hour to represent Allen Tehrankari as an amicus curiae (friend of the court) - well above the $87 an hour she would have received from legal aid.

Judge McKinnon said Mr. Tehrankari recently fired his lawyers and appears to trust no one but Ms. Huot. On account of the complexity of the evidence and the likelihood that the trial will take four months, he said, it is preferable that Mr. Tehrankari not represent himself.

The ruling was made a day after several lawyers with a steady clientele of terrorism suspects told a Federal Court of Canada judge that they can no longer accept legal-aid fees, since they do not provide enough income to even cover their office overhead.

In his ruling, Judge Green noted that amicus curiae "should be paid fair and reasonable remuneration."

The Ontario Court of Appeal laid the groundwork for these orders last year, when it granted lawyer Ricardo Federico $200 an hour for 140 hours of work in a search-and-seizure case.

However, Brendan Crawley, a spokesman for the Ministry of the Attorney-General, said a new "protocol" for legal aid issued last December emphasizes that, when public funds are spent on criminal proceedings, they ought "to be paid at the same rate regardless of the source of funding - be it through Legal Aid Ontario or the Ministry."

Frank Addario, president of the Criminal Lawyers' Association, said in an interview that the judiciary is using the only method it can to emphasize that legal-aid fees are inadequate.

"Judges are also saying that there was an implicit bargain between the bar and the government," Mr. Addario said. "The bar agreed to represent the greatest number of indigent litigants that is feasible at less than market rates - and the government agreed to fund the program enough that it wouldn't fall so far behind fair market rates that it would be like no payment at all. But the government has notoriously failed to keep up its end of the bargain."

Mr. Addario called a couple of increases to the legal-aid rate structure in the past 10 to 15 years "a pittance." In contrast, he said that judges, police, Crown prosecutors, justices of the peace and probation officers have all received generous increases over the past few years. Mr. Addario noted that the Ministry of the Attorney-General routinely pays outside counsel $200 an hour to prosecute cases or for advice. "This is over twice the legal-aid rate - and proof that the government is aware that they are seriously devaluing the work of defence counsel," he said.

Mr. Crawley said that, while the ministry cannot comment on individual cases, the courts have generally "found that legal-aid rates meet the Charter and common law requirements for the provision of counsel where this is necessary for a fair trial."


Our commentary in the Globe and Mail

Ottawa Mens Centre.com, from Ottawa, Canada wrote: Wow, Mr. Justice Colin McKinnon has shown incredible courage to make a "legal decision" that our govt politicians will not like.

Our government is using the word "terror suspect" to "call wolf" all to often, then they use "dirty tactics" such as attempting to destroy an accused right to a fair trial by attacking their legal aid.

Justice McKinnon's decision shows a "fair" perspective. If its good enough for prosecutors to be paid $200 an hour than its good enough for defence lawyers also.

Why should there be a different pay scale for prosecutors and criminal defence lawyers? There needs to be a resemblance of justice, "to be seen to be done". Justice McKinnon's order may not be popular with the government and no doubt they are already dreaming up a way to "work around the problem". Its the old story, you can fool some of the judges some of the time. Lets see what the government does now, odds are we will see the government attempting damage control by some "indirect means" like refuse demands for more judges but they have been doing that for a long long time, its an "indirect" attack on the judiciary by the government that asks judges to "get rid of cases". Its got to stop and the only way is to make sure the justice system is fair, free of political pressures, and functional. Of course, that's just another delusional dream. Ottawa Mens Centre dot com