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PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Staff Writer ............. Robert Todd Staff Writer ....... Michael McKiernan Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Account Co-ordinator .... Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times 2010 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter Nicholson offers lots of words, little substance J ustice Minister Rob Nicholson said lots of words but offered little substance during his question-and-answer session with lawyers at the Canadian Bar Associa- tion conference in his hometown of Niagara Falls, Ont., last week. In typical fashion for a local MP, Nichol- son praised the CBA's choice of the tourist mecca for the annual event. At the same time, we heard lots of gener- alities about what the government plans to do to address crime in Canada. Of particu- lar concern, Nicholson noted, was the issue of delays at so-called mega-trials, many of which get bogged down in pretrial motions that in some cases result in the prosecution falling apart. "Far from getting better, the problem is getting worse," Nicholson said last week. Noting there is a "general consensus" on how to deal with complex trials, Nicholson said the government is now drafting legis- lation in response. That's great but, as he pointed out, its speech from the throne had already identified the need to move forward on the issue. As noted by reporter Michael McKier- nan in this week's Law Times (see "Lawyers assail crime agenda," page 1), the legal pro- fession had fairly harsh words for the Con- servative government's policies. "I'm concerned about the whole incar- ceration policy of your government," said Thomas Heintzman, a prominent lawyer. "It seems to me more and more crimes are being created, and people are being sent to jail for longer and longer periods. That poli- cy hasn't worked anywhere else I'm aware of, and I can't see it working in Canada." Most of the lawyers who stood up to ask about the issue expressed similar sentiments. But what did we hear back from Nicholson? Certainly, there was little that addressed the matter at hand — the cost of putting more people in jail for longer periods under a crime policy that seems to have little back- ing from empirical research or studies. "We can't leave the Criminal Code stuck in the 1890s," Nicholson said at one point. He then repeatedly went on to emphasize those aspects of the legal modernization that few people would disagree with, at least publicly: the rise in the age of consent, the creation of new offences for crimes such as drive-by shootings, and a crackdown on vehicle theft connected to organized crime. Of course, those aren't the changes to the Criminal Code the critics were referring to. Most people understand the need to update the law according to the changing nature of criminal behaviour but may still be con- cerned about the increasingly punitive ap- proach the government is taking towards crime in general. So Nicholson essentially ducked the law- yers' challenges to his policies, and the two sides remain at somewhat of an impasse. That's unfortunate. While defence lawyers in particular may have a vested interest in a more liberal approach to crime and the government certainly has a right to chart its own course, it would be better if one of the key stakeholders on the issue, the legal pro- fession, had more of a voice. It's also worth pointing out that one of the lawyers who challenged Nicholson on his crime agenda is a Saskatchewan Crown prosecutor, Lore- ley Berra. She and others prove that it's not just defence lawyers who are concerned. — Glenn Kauth L awyers in Ottawa and Cornwall, Ont., have been noticing that it has When is it worth it to work for free? A Criminal which continues to be impor- tant throughout their careers. For solicitors, the will is a loss become harder to get legal aid certificates and it's taking longer for clients to get through the ap- plication process. The clients have to be referred by duty counsel. In Cornwall, local applications are no longer taken, and clients must use a 1-800 num- ber. So much for Justice on Target, which was meant to speed criminal cases through the system. So, slow retainer or no re- tainer, do you speculatively hold your clients' hands through those remands, do you do those bail hearings or do you just tell them to return later on once they have a certificate? Why work for free? Criminal lawyers offer pro bono services, but not always intention- ally, of course. Leaving aside the public interest in free work, not to mention the government's, what kind of pro bono work delivers the most benefit to you, particularly in these lean times? New lawyers need to attract clients, establish their reputa- tions, and acquire expertise, all of leader. In defence work, by anal- ogy, there are two loss leaders. The first is the bail hearing if the client is in custody. The other one is the free consultation. Legal aid work is already pro bono work, and certificates don't pay well for bail hearings, if they pay at all (see "LAO introduces 'diabolically comprehensive' block fees," Law Times, May 3). There certainly are divergent opinions about performing bail hearings without a retainer. Given the importance of the liberty of the subject and that clients' options and ability to defend themselves are circum- scribed by being detained, they are entitled, in my opinion, to a bail hearing by counsel of choice. It is a loss leader. Clients who ap- preciate the effort you made will try to retain you. But some clients can never re- tain you. Their cases aren't seri- ous enough for Legal Aid Ontar- io to issue a certificate and they are too poor to pay. So where to Mind By Rosalind Conway draw that line? Some of these people are established clients. My own comfort level has been that I prefer to work for free, ironically, in cases that I estimate are likely to result in a withdrawal or diversion. While it's ironic that one could work towards the best possible outcome for free, it may involve the least amount of work. I don't want to sit in a busy plea court all day long waiting to do a free matter. I have done free appeals, for disbursements only, but never a free trial. My logic on appeals is that if the client retained me to do the trial and I believed justice hadn't been served, then I want- ed to try to correct that. Why not a trial? I had a long discussion with a senior lawyer about this. He argued that he would do trials for free www.lawtimesnews.com but not appeals. My concern was the cost of disbursements and transcripts, as well as the length of the matter, but his position was that if he agreed to help a client, then he would never get off the record unless there was a breakdown in the solicitor-client relationship. Yet he wouldn't do an appeal. So we each drew our line in the sand but in a different place. When defence lawyers take calls during the night from peo- ple under arrest, it's often pro bono work. Still, any lawyer who doesn't take them is potentially cutting off a huge source of busi- ness. Nevertheless, doing free work doesn't absolve the lawyer from the responsibility of pro- viding sound advice and effec- tive assistance, keeping proper records, avoiding conflicts, and even docketing time. I have a rule that the pro bono client must be governable and respectful — amazingly, this is beyond some of them — and truly impecunious. One client who I acted for pro bono thought it was acceptable to show up a August 23, 2010 • LAw times Law Times Thomson Reuters Canada Ltd. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 240 Edward St., Aurora, Ont. 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Please recycle this newspaper. couple of hours late for court. That was a deal breaker. Even a paying client who's rude to your staff isn't worth keeping. But that client who I refused to act for went on to refer me to her boyfriend, who did retain me. We all have particular com- munities that we like to help, and representing new immigrants and impoverished students can give great personal satisfaction and may cost you very little. There's another consideration. As prospective clients travel through the Byzantine legal aid application process, they may breach their bail. Then, ironical- ly, the matter should be serious enough for a certificate. Fit the free work around paid work, and if a student or junior can do it, that's all the better. What goes around comes around, and you and your office will have goodwill, a good client base, and the poten- tial for more retainers. LT Rosalind Conway is a certified specialist in criminal litigation. She can be reached at rosalind. conway@magma.ca.

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