Report laments legal aid snag

Report laments legal aid snag

Most cases go to junior defence lawyers who lack experience, creating 'vicious circle,' authors find

Nov 29, 2008 04:30 AM

Tracey Tyler
Betsy Powell
Toronto Star

The defence of people charged in some of Ontario's biggest criminal cases – as well as millions in public money – is being placed in the hands of unseasoned junior lawyers, some with less than four years experience, a new report says.

More than half of all legal aid certificates issued in complex criminal cases are going to lawyers who have been practising fewer than ten years and lack the judgment needed to conduct trials in a focused manner, according to the report.

The report was released yesterday at a Queen's Park news conference by Attorney General Chris Bentley. It's aimed at moving large cases through the justice system faster and avoiding the fate of a recent corruption trial involving Toronto police officers, which collapsed this year after a decade in the courts.

Bentley was joined by the report's authors, Patrick Lesage, a former chief justice, an
Michael Code, a University of Toronto law professor who once served as assistant deputy attorney general.

After combing through data from the files of Legal Aid Ontario, Lesage and Code found approximately 28 per cent of defence work in big cases funded by legal aid is performed by lawyers with less than four years experience.

At the same time, the legal aid plan is attracting fewer and fewer senior lawyers. Most are unwilling to commit themselves for months or years to cases at rates that don't cover their overhead. The top rate is about $92 an hour.

"We appear to be trapped in a vicious circle: the longer criminal trials become, the less likely it is that leading counsel will agree to conduct them on a Legal Aid certificate; and yet having leading counsel conduct the defence in these cases is one of the solutions to the overly long trial," Code and Lesage write.

Among their 41 recommendations is a call for "enhanced fees" in complex cases, using criteria so restrictive that only "the most able counsel" qualify. Frank Addario, president of the Criminal Lawyers' Association, applauded the general principle of enhanced tariffs, arguing that paying more to lawyers will prove "revenue-neutral."

"What's paid out will be recouped over and over by savings on everything else that drives up the cost of complex cases," he said.

But while Bentley said both he and Premier Dalton McGuinty are determined to have "a faster, more effective criminal justice system," he made no promises yesterday beyond a vague pledge to get legal aid to "a better place." He's focused his attention on less expensive changes, including moving Crown attorneys into police stations to advise police in the early stages of a case.

Doing so, said Bentley, addresses a recommendation by Lesage and Code that police and prosecutors work more collaboratively on issues, including the disclosure of evidence to defence lawyers.

That was one of the troubling areas cited by a judge in the police corruption case that precipitated the report. In staying charges against six drug-squad officers, Justice Ian Nordheimer quoted a letter from RCMP Chief Superintendent John Neily, imploring the Crown to help manage the mountain of documents in the investigation. He got no response. Nordheimer blamed the Crown for much of the delay that led to the stay. The Attorney General has appealed.

Bentley said yesterday Crowns will be assigned to police stations in Toronto, Peel, Ottawa and Windsor.

But some defence lawyers involved in large-scale prosecutions are skeptical.

"The Crown and police can't be any closer than they already are," said defence lawyer Richard Posner. "Police have access to Crown attorneys around the clock."

Daniel Brown said special prosecutors have been involved in the earliest stages of several gang projects, yet Ontario is still experiencing lengthy trial delays.

Inmates win court food fight

Inmates win court food fight
Durham police agree to augment prisoners' lunch during hearing after lawyers launch complaint

Nov 18, 2008 04:30 AM

Betsy Powell Courts Bureau

"I'll have the Chicken Neptune."

That was the joking response of a prisoner in an Oshawa courtroom yesterday after Durham Regional Police Service reluctantly agreed to feed seven inmates more than a granola bar and juice box during lengthy court proceedings.

But the issue is no laughing matter, say the defence lawyers who complained their clients would be too hungry to follow their preliminary hearing, scheduled to begin today and last five weeks.

In September, defence lawyers, led by Daniel Brown, brought an application in an Oshawa court asking Justice David Stone to order Raymond Martin and six co-accused – who face a variety of drug offences – be provided additional food and drink in order to "meaningfully participate" in their preliminary inquiry.

But before the application could be heard yesterday, Kevin Inwood, a lawyer for Durham police, announced the force will add a sandwich and apple to the daily menu of the seven prisoners in order not to delay or disrupt the proceedings.

The force "wants to make it very clear they maintain they are not required to do so," Inwood told court. Durham police believe it is the province's responsibility to buy prisoners lunch and it is refusing despite agreeing recently to pay all court costs by 2012, he said, adding the cost "ought not to be borne by the taxpayers of this region."

Since August, inmates of Durham Region's five courthouses have received one granola bar and juice box at lunch.

The force changed the menu "to save staff time, reduce waste, provide a more nutritional meal and save money," an internal media briefing note said.

Previously, the inmates were given a cheese sandwich on white bread and can of pop.
While the lawyers declared victory yesterday and withdrew their application, they said the larger issue looms in courthouses across Ontario where penny-pinching policies are taking a bite out of food budgets.

"This concession by the Durham police is only in this particular case," said Brown. "Are we going to have to waste court time in future cases to litigate the same issue over and over again? I think the answer is yes."

The prisoners receiving the extra food are spending all day in court in addition to being driven for an hour to and from Central East Correctional Centre in Lindsay.

Before the deal was agreed to in court, Stone said he had no authority to order the province or Durham to provide more food. But he said if at any time he found any parties weren't "present" due to a lack of food, he could shut down the court.

Durham judge reconsiders prisoners' lunch menu

An Oshawa judge has ruled that seven inmates being tried on drug conspiracy charges will have to be given more food during the day while they're in court.

The decision came after defence lawyers argued their clients have a hard time staying alert during proceedings because of a slimmed down prisoner menu that Durham Regional Police implemented this past summer.

Detainees usually get a full breakfast at around 5 a.m. and then dinner at 7 p.m. Inmates used to get a sandwich and a pop halfway during the day but now all they get is a granola bar and a juice box.

"It's pretty bad when you have to starve and go to court," one prisoner told CTV Toronto as he was being hauled away.

The prisoners are held in a provincial jail and have their cases tried in provincial court but security is handled by Durham police. Durham police are expected to feed the inmates but recently, their food budget has dropped from $3 to $1 per person.

Defence lawyers say prisoners need to concentrate on their case when they go to court but that becomes hard to do when their stomachs are growling.

Lawyers have taken to asking for court delays until their clients are properly fed.

"You can't order either one of the parties to provide food but you can halt the proceedings until food is provided," said defence lawyer Daniel Brown.

Durham police officials say the prisoners' budget was cutting into their operation.

"Bear in mind, (the) $90,000 we spent on lunches last year, that's one policeman on the street," Supt. Michael Ennis told CTV Toronto in September.

Durham police argue the lunch tab should be the responsibility of the corrections ministry, not them.

Officials say the seven inmates who were granted a larger lunch menu have been segregated because of fears the decision would cause riots by other prisoners who were not granted the same consideration.

With a report from CTV Toronto's Austin Delaney