Province ordered to pay lawyers more money

Tracey Tyler Legal Affairs Reporter


November 18, 2010


The Supreme Court of Canada has rejected the Ontario government’s argument that $120.02 an hour is more than adequate for two experienced criminal lawyers representing a former Orillia hospital counsellor at the centre of a wrongful conviction claim.

Instead, Justice Ian Binnie has ordered the province’s attorney general to pay James Lockyer $225 per hour and his co-counsel Joanne McLean $175 an hour for their work on behalf of Jack White, whose case a Conservative MP has said is clearly a miscarriage of justice.

“In our respectful view, on a consideration of all the circumstances of this case, the rates proposed by Mr. Lockyer are fair and reasonable,” said Binnie, writing on behalf of a Supreme Court panel also comprised of Justices Morris Fish and Louise Charron.

A key organizer of last year’s province-wide criminal lawyers’ boycott of legal aid cases said the decision, released Wednesday, is important because the country’s top court has recognized lawyers can’t be expected to donate their services to the extent expected by governments, based on current pay rates under legal aid.

Legal Aid Ontario pays defence lawyers a top hourly rate of approximately $97 and has recently introduced an “enhanced” hourly rate of $120 for complex cases.

“The message is that the court views the assistance of counsel differently than the attorney general,” said Frank Addario, a Toronto defence lawyer and past-president of the Criminal Lawyers’ Association.

“Experienced judges are keenly aware that the system is better served by encouraging experienced and talented counsel to participate in public law disputes, particularly those that reflect on the integrity of verdicts,” he said.

The decision could affect other cases in the criminal justice system, most likely those in which legal aid funding is not available, said Addario.

It could serve as a guideline for judges who are asked to order the attorney general to pick up the cost of legal representation. These include cases in which a person wants to appeal a criminal conviction but has already served his or her sentence.

Many legal aid plans across the country have decided these cases are ineligible for coverage, Addario said.

An Ontario government task force into the management of complex criminal cases headed by former chief justice Patrick LeSage of the Superior Court of Justice and Michael Code, now a judge, suggested a system of enhanced fees might lure senior lawyers back into legal aid work.

Trials are likely to run more smoothly with experienced practitioners at the helm, LeSage and Code advised.

As of last month, 48 lawyers had applied to the province’s legal aid plan to be paid the new complex case rate and 18 of those applications were approved. Another seven were turned down and 23 were waiting on a decision.

In White’s case, the attorney-general conceded the issues were somewhat complex, having already been the subject of a trial, an arbitration hearing and five appeals. Lockyer and McLean, founding members of the Association in Defence of the Wrongly Convicted, have more than 50 years experience between them.

White was convicted in 1993 of sexual assaulting a female resident of the Huronia Regional Centre in Orillia. But court documents filed by the association contend he was the victim of retaliation by longtime staff members angry he assisted police with an investigation into another resident’s death and that he had co-authored a report criticizing co-workers for treating residents harshly.

Conservative MP Bruce Stanton (Simcoe North) has taken up White’s case, saying the evidence shows it was a miscarriage of justice and his conviction should be overturned.