Ontario judiciary takes on province in bid to raise legal-aid fees
From Thursday's Globe and Mail
May 29, 2008 at 4:36 AM EDT
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
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
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
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 MailWow, 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
- Posted 30/05/08 at 2:07 AM EDT