The Ontario Court of Appeal flatly rejected arguments from the Ontario government that judges should not be permitted to dictate pay rates for lawyers appointed to defend accused people.
On the contrary, it said that judges are much better situated than the Attorney-General’s ministry to decide how much lawyers should be paid to ensure justice is done.
“The court could not fulfill its function to administer justice according to law if it could create the role of amicus where that was necessary, but had no power to ensure that the role was filled because it could say nothing about the rate of compensation,” it said.
The Court of Appeal was ruling on three important test cases, two involving murder defendants and one a dangerous offender. An amicus curiae was appointed in each case on the basis that the defendant’s erratic behaviour or complicated defence was overwhelming his chances of obtaining a fair trial.
While the decision could theoretically result in millions of dollars being spent on legal fees, Criminal Lawyers Association vice-president Andras Schrek predicted that it will actually result in substantial savings.
“Runaway trials cost the system an awful lot of money,” Mr. Schrek said in an interview. “The Court of Appeal has just saved the justice system millions of dollars by giving trial judges the power to do what it takes to streamline the trial process.
Mr. Schrek said the province adopted a short-sighted position on amicus orders and was unable to see beyond its concern about losing the power to dictate their legal fees.
“When there is an unrepresented accused, trials take far longer than they need to,” Mr. Schrek said. “You have to pay the judge, the prosecutor, the court reporter, the court clerk and everybody else – it all adds up to many thousands of dollars a day.”
The decisions were an implicit rejection of Legal Aid Ontario rates that have been under assault from the defence bar, which claims that they are too low to attract to experienced lawyers.
However, a ministry spokesman, Brendan Crawley, said that the province recently raised the rate for experienced counsel on serious cases in an attempt to keep a roster of lawyers willing to undertake them.
Mr. Crawley added that Ontario’s position in the amicus appeals was designed “to ensure appropriate fiscal accountability and management of public funds.”
In one of the cases, the defendant, William Imona Russel, had fired so many experienced lawyers that Legal Aid Ontario refused to fund any new ones. Mr. Imona Russel was left trying to defend himself against a murder charge.
His trial judge –Madam Justice Maureen Forestell of Ontario Superior Court – ended up appointing defence lawyer Anthony Moustacalis to represent Mr. Imona Russel at a rate of $192 per hour – about $60 per hour above the legal aid rate.
At the time, Judge Forestell tore a strip off the province for opposing the appointment. She said that the “rigid, adversarial and unhelpful stance taken by the Ministry of the Attorney-General in this case risks jeopardizing approximately seven months of trial time and the associated costs.”
The Court of Appeal praised Judge Forestell’s approach in its rulings Tuesday.
“The expanded role of amicus would clearly allow the trial to proceed more efficiently, resulting in significant savings to the administration of justice,” said Mr. Justice Marc Rosenberg, Mr. Justice Stephen Goudge and Mr. Justice Robert Armstrong.
After Mr. Moustakalis was appointed, Mr. Imona Russel’s trial proceeded smoothly and he was eventually convicted.
“The Imona Russel trial took the better part of a year,” Mr. Schrek said. “Without the assistance of amicus curiae, that trial would have still been going at this time, with an enormous extra cost to the system.”