This forum is not purely dedicated to legal discourse. While I may attempt to 'raise the bar' with some pieces relating to law and being a criminal defense lawyer in Toronto, I also plan to use this blog as a medium to express my often critical thoughts on the daily grind that is life. Throw in some random videos and internet fodder, and the bar is sure to be lowered.

Sunday, 15 April 2012

Legal Aid or Band-Aid? Criminal Law and Ontario's Inadequate Public Funding System. Part 8 of 8

The only responsible conclusion that can be reached is that an immediate increase to the legal aid tariff is drastically needed, a position supported by many sources including the Holden-Kauffman report.  The authors concluded that a significant increase to the hourly rate was justified and required in order to prevent the ongoing erosion of the legal aid system.  They concluded that the tariff was utterly inadequate, that the hourly rates set out in the tariff were clearly too low and that, without major changes, the situation would likely get worse.[1]  This argument was made in 2000 and surely the circumstances have not changed significantly in the 12 years since. 
Holden and Kauffman’s recommendation, in 2000 dollars, was that the hourly tariff rates should be in the range of $105 to $140, depending on the lawyer's level of experience.[2]  Adopting the basic premise of their conclusion, and following my previous analysis, it is therefore my recommendation, when adjusted to 2012 dollars, that the suitable range for legal aid remuneration should be adjusted to approximately $135 to $180, again, depending on the lawyers experience level.[3]  The current rates inadequately range from $89 to $112.[4]
However, any argument for additional financial resources must assure the provincial government and the taxpayers of the province that the existing level of funding is being used in the most cost-effective and productive way possible, and that these resources are being utilized to facilitate more timely and effective resolution of disputes.  This is because the legal aid system, despite the important normative rationales that underpin it, is not a system in which most middle class citizens of Ontario feel they have a material stake.[5]  The middle class supports the program via their tax contributions, despite the fact that they will never, in all likelihood, use the system they are funding.  Because of this, fiscal responsibility is of key importance.
While the primary focus of this paper is an analysis of the immediate need for an increase in the hourly tariff rate, it must be noted that the tariff also caps the number of hours that a lawyer may bill for particular services.  Although beyond the scope of this paper, these problematic hourly caps are worth mentioning, if only in brief.  While these caps have been modified from time to time, they appear to be set using outdated means that fail to take into account changing rules of procedure and substantive law requirements.[6]  The average number of hours spent by criminal lawyers at all levels of experience on particular services generally exceeds the maximum number of hours allowed under the tariff.[7]   Therefore, legal aid lawyers are faced with the choice of having to subsidize legal aid even further, by working hours that will not be paid, or even more problematically, compromising their professional standards. 
Moreover, this recommendation assumes a system of periodic adjustments thereafter, incorporated into the budgetary process governing the financial relationship between LAO and the Ministry of the Attorney General.  Without a binding tariff review process to resolve disputes over future adjustments in the tariff’s hourly rate and hourly limits, these recommendations represent a limited response without long term value. 

            Due to the demonstrated importance of public funding for legal aid, enabling low income individuals to access the criminal justice system, it is time for the government to adopt their constitutional obligation and to provide adequate and deserving financial support to private practitioners taking on legal aid clientele. 
The Rule of Law, the applicable sections of the Charter, and express and implied statutory obligations, when viewed collectively with the associated jurisprudence, provide adequate and legal justification to denounce what is effectively a governmental usurpation of the rights of low income individuals when facing criminal sanctions at the behest of the state. 
The historically low legal aid remuneration scheme has seen the number of lawyers willing to accept legal aid certificates to drop, while demand for legal aid certificates is rising.  Criminal lawyers' flight from legal aid work is explicitly and directly linked to the low legal aid tariff and, despite modest increases, inflation has eroded the real-dollar value of the tariff while overhead costs have continued to rise.  The traditional rates paid under the current legal aid tariff are making it unaffordable for lawyers to perform enough legal aid work to support the growing demand for their services and the result is a shortage of lawyers available to represent low-income Ontarians.  Combined with recent, major provincial investments in more police and Crown attorneys, the corollary is the creation of an imbalanced system in which the “legal aid bar” cannot fulfill its vital role as a necessary check and balance on the power of the state over its citizens.  The ensuing risk of miscarriages of justice places the integrity and effectiveness of the justice system at risk.  
What is more, legal aid lawyers are experiencing tremendous frustration and a sense of unfairness at the low tariff level when compared with the compensation provided to other lawyers in the criminal justice system.  The resulting inequity creates an unacceptable multi-tiered criminal-legal bar which has the effect of placing legal aid practitioners in the second class strata, despite the comparable importance of their work.
Over 40 years of legal tariff inadequacy, when viewed through the lens of the government’s neglect of their legal and social responsibilities, has delivered the legal aid system into the criminal intensive care unit.  The situation is abundantly clear:  it is time for the province to undertake a surgical investment in the justice system and end its historically adopted band-aid approach to legal aid by ensuring a fair and adequate legal aid tariff which reflects both the current economic reality and the value of the services for which it is rendered.

[1] Holden-Kaufman Report, supra note 1 at 183-191
[2] Ibid. at 187-191
[3] Assessment based on the Bank of Canada’s inflation calculator, available at
[5] Report of the Legal Aid Review, supra note 33 at 178
[6] McGee, Heather, OBA Submission to the Legal Aid Review (Toronto: Ontario Bar Association, 2007) at 10
[7] Holden-Kaufman Report, supra note 1 at 169-171

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