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August 18, 2014

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New duty counsel not public defenders: LAO By Glenn Kauth Law Times egal Aid Ontario is vigorous- ly denying that a spate of hir- ing new duty counsel who are reportedly handling mi- nor trial matters is a move towards a public-defender system. "Legal aid is not moving to a public-defender system," says LAO spokeswoman Genevieve Oger. "Legal aid believes in a vibrant private bar," she adds, noting the Le- gal Aid Services Act provides for a mixed system. e comments follow suspicion among Ontario's private bar that a slew of new duty counsel, some of whom are handling trials on minor charges rather than the usual focus on bail matters and fi rst appearanc- es, represents a long-feared move to a U.S.-style public-defender system. "What I understand is happening is they're hiring not just extra duty counsel but they're hiring in-house counsel to actually do trials," says Toronto criminal defence lawyer John Rosen. "It's sort of a creep that's moving up," he says of the implications for the private bar. It's a trend defence lawyer Blair Drummie has noticed as well. "Duty counsel are doing trials in Bramp- ton," he says. " ey're going to start soon at College Park." Oger admits the hiring has been going on but says it follows a fi nancial analysis that showed that in some places, it's cheaper to hire staff duty counsel rather than pay private lawyers to do the work on a per diem basis. "In those places, it makes sense to hire someone full-time," she says, adding LAO welcomes applications from the private bar for those positions. Oger also notes duty counsel have generally handled trials less than a dozen times a year in the past. But do the changes herald a move to do that more o en as some in the private bar suspect? Oger notes the duty-counsel manual has always al- lowed those lawyers to take any steps that may be appropriate to protect a client's rights, something that can include trials (although the manual says trials are "beyond the normal function of duty counsel"). Asked if they'll be exercising that option more o en, Oger says: "Our mandate is to serve the low-income people of On- tario. . . . Many of the working poor are not eligible for certifi cates. . . . We have to try and fi nd ways to serve low-income people. And so that could be expanded duty counsel." For people like Drummie, a big concern is the quality of represen- tation as the number of legal aid certifi cates issued declines. "It's an unfortunate thing they're doing," he says, noting the good reputa- tion Ontario's certifi cate system has always had. According to Rosen, LAO's ap- proach may not be that cost-eff ec- tive a er all. " e reality is if you're an employee, you're going to work employee hours, you're going to THE MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS More detail and a wider scope of legal contact information for Ontario than any other source: ȕ0WFS27,000 lawyers listed ȕ0WFS9,000 law firms and corporate offices listed ȕ'BYBOEUFMFQIPOFOVNCFSTFNBJMBEESFTTFTPGȮDFMPDBUJPOTBOEQPTUBMDPEFT Visit or call 1.800.387.5164 for a 30-day no-risk evaluation 1FSGFDUCPVOEȕ1VCMJTIFE%FDFNCFSFBDIZFBSPOTVCTDSJQUJPOȕ0OFUJNFQVSDIBTF- .VMUJQMFDPQZEJTDPVOUTBWBJMBCMF1SJDFTTVCKFDUUPDIBOHFXJUIPVUOPUJDFUPBQQMJDBCMFUBYFTBOETIJQQJOHIBOEMJOH O N TA R I O L AW Y E R' S P H O N E B O O K Untitled-3 1 14-05-20 3:25 PM Canada's prison paradox Corrections system expands as severity, number of criminal offences falls By yaMri taDDese Law Times ast month, Statistics Canada reported that between 2012 and 2013, the index that mea- sures crime rates and the severity of offences went down by almost 10 per cent. The report follows a steady decline in crime rates in the last decade that also saw a 36-per-cent drop in the severity of offences. Yet discussions about overcrowded prisons contin- ue as governments build new or expanded facilities to manage the overf low. According to lawyers and prison experts, ev- eryone from the federal government to criminal defence counsel have played a role in creating the paradox. A major part of the is- sue lies with police, Crown prosecutors, and even the courts in missing the spirit of bail release provisions, says Toronto defence counsel Bill Trudell. "I think there's too many cases where police officers who have the right to release under the Criminal Code aren't aware of it or don't exercise it," he says. "So it's a lot easier to just remand somebody and have the courts deal with it." Once cases get to the bail courts, they often land in the hands of young and less-experienced Crown counsel who tend to be even more risk averse, Trudell notes. "You don't want to be the Crown who releases somebody and read about a murder the next day," he says. "It's a lot easier to keep somebody in custody or it's a lot easier to ask for conditions of bail that are hard to manage and so sometimes people are in custody for quite some time." But what drives the culture of risk aversion even when the incidence and severity of crimes are on the decline? "The elephant in the room is, of course, the Harper government's election on tough-on- crime policies, making mandatory minimums, and cutting parole and so forth," says prison lawyer John Hill. There's a sense that Canada is adopting an "American-style" corrections system, according to Hill, who notes the reality is in fact changing south of the border. "We're turning over to what we think is Ameri- can style, but even they are moving away from it," he says. He gives the example of Texas, where authorities are trying out alternatives to putting people in jail af- ter their first non-violent offence. "So I think we, [in OUTSIDE OWNERSHIP CBA report makes 'dramatic' suggestions P5 PROSTITUTION LAW Let's weigh benefits of criminalization P7 FOCUS ON Pensions Law P9 While changing demographics have led to a decrease in crime, Canada's approach to the issue has meant incarceration rates have remained high, says John Hill. Photo: Glenn Kauth See Certi cates, page 4 See Adult, page 4 PM #40762529 OUTSIDE OWNERSHIP CBA report makes 'dramatic' suggestions & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM $4.00 • Vol. 25, No. 26 August 18, 2014 TORONTO | BARRIE | HAMILTON | KITCHENER 1-866-685-3311 | cLeish Orlando_LT_Jan_20_14.indd 1 14-01-15 3:15 PM L aw TIMes L aw TIMes L L

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