Why the Low Legal Aid Tariff is Unacceptable
Over time, the stated objective of the legal aid tariff of ensuring approximately the same range of choice and quality of lawyers to legal aid clients as are available to fee-paying clients of modest means will increasingly diverge from reality and become largely empty rhetoric if the level of the legal aid tariff diverges significantly from compensation levels of lawyers serving clients of modest means in areas of practice covered by the legal aid plan or engaged in other areas of practice or legal employment in the public sector.(1)
The increasing chasm between levels of compensation given to legal aid lawyers when compared to other participants in the criminal justice system is insupportable for three main reasons.
First, there can be no dispute that criminal defense lawyers perform work that is every bit as difficult, valuable and essential to the functioning of the criminal justice system as Crown counsel and members of the bench. There is no principled basis upon which the compensation paid to defense counsel should be so far below that paid to other participants in the justice system, much less that this gap should continue to increase. Defense counsel who represent legal aid clients are not somehow “less worthy” participants in the justice system, and the value of their work should be reflected in a reasonable hourly rate that keeps pace with other essential participants in the justice system over time. This has been recognized by the Ontario Court of Appeal in R. v. Figueroa. The Court expressed concern at the discrepancy between the legal aid rates paid to defense counsel and the rate to be paid to an independent prosecutor, implicitly understanding the poverty of the legal aid tariff. Both defense counsel and the independent prosecutor were expected to perform important functions, the Court noted, concluding that the answer was “not to reduce the rate for the latter to a rate which even the Crown acknowledges to be inadequate to the task.”
Second, the priority paid to Crown counsel and judges over the criminal defense bar speaks tacitly about the kind of society in which we live. The legal aid bar often represents the poorest, most vulnerable and most marginalized members of society, in what are often the most difficult circumstances of their lives. In the criminal law context, they have to face the vast resources of the state and the expertise of both the police and the Crown. Without a sufficient number of qualified lawyers to represent criminal defendants and provide some measure of balance in the system, the fairness and integrity of the criminal justice system will be undermined.
Third, and flowing directly from the first two points, the tariff must be adequate to ensure the recruitment and retention of qualified and exceptional defense counsel. One of the objectives of the Legal Aid Services Act, 1998 is “to promote access to justice throughout Ontario for low-income individuals” by “providing consistently high quality legal aid services in a cost-effective and efficient manner to low-income individuals throughout Ontario.” As previously mentioned, many of the most capable and experienced lawyers are no longer interested in legal aid services since the remuneration it provides is not worth their time. Moreover, the decline in effective hourly rates has made legal aid work increasingly unattractive for new lawyers, even as a means of gaining experience. High quality services “cannot be assured if a shrinking pool of lawyers willing to accept legal aid certificates forces (Legal Aid Ontario) to accept lawyers who may have limited or no experience in the relevant area of law in order to provide clients with at least some representation.”
[1} Holden-Kaufman Report, supra note 1, at 184
 R. v. Figueroa (2003), 176 C.C.C. (3d) 63
 Ibid at 22
 Legal Aid Services Act, 1998, supra note 8, s. 1(a)
 Business Case, supra note 9 at 30