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Law timeS • September 21, 2009 NEWS PAGE 3 Courts to feel effects of boycott, lawyers vow But LAO funding boost is not the government's 'opening proposal' BY ROBERT TODD Law Times cle within the province's justice system as the fall court session gets underway, lawyers say. "Th e courts get busy in Sep- T tember, just like everything else in life," says Defence Counsel Association of Ottawa presi- dent Mark Ertel. "Cases are starting to come before the courts that maybe were bumping around during the summer, and there's going to be some pressure on accused persons to get moving, and there's going to be some pres- sure on courts to order that counsel be funded properly to defend accused so that there's really a level playing fi eld." Meanwhile, Attorney Gen- eral Chris Bentley has sent a letter to lawyers to "clarify" the government's recent $150-mil- lion infusion for Legal Aid Ontario over four years. In it, he asserted the funding "is not the government's 'opening pro- posal,' as some have suggested." He also said the new major case management offi ce will have to come up with a permanent way of dealing with criminal defence fi les "to the extent that mem- bers of the private bar remain unavailable to do these cases." Th e boycott of cases in- volving serious charges that began in June has now spread throughout the province, with more than 600 participating lawyers now listed on the Crim- inal Lawyers' Association's web site. While the eff ects of the ac- tion may have been muted in the quieter summer months, lawyers say that now that the courts are in full swing, the full force of the boycott will soon be apparent. Ertel says three attempted murder cases have arisen since lawyers in the area signed on to the boycott earlier this month. "I know that lawyers con- tacted in those cases are refus- ing to do those cases on legal aid," says Ertel. "It's just start- ing to have an impact, but we just announced." He adds that the boycott could expand to include other charges if the province fails to meet lawyers' expectations. Most lawyers participating in the boycott have so far refused to accept legal aid certifi cates on cases involving serious off end- ers, guns-and-gangs off ences, and homicides. "We're not going to give this up until we get something that's worth talking about," says Ertel. "We're not even close to that now." Brockville lawyer Larry O'Brien, the CLA's regional director for the Rideau-St. Law- rence region, says there has been at least one case in his area af- fected by the boycott. He says the matter, in which a defence OBA president Carole Brown sees promise in the govern- ment's announcement of $150 million for Legal Aid Ontario. lawyer refused to take the case on a legal aid certifi cate, was ad- journed for a week. "Th e rumblings now, yet to be confi rmed, mind you, [are that the Crown] may not pro- ceed with the murder [charge] and go with aggravated as- sault," says O'Brien. "Th at re- mains to be seen if that would take place, but it does demon- strate the ripples that are going through some of the lower-lev- el decision-makers, or troops, that are on the ground." In his Sept. 11 letter to members of the bar, Bentley at- tempted to explain the govern- ment's recent announcement of $150 million over the next four years for LAO. "Th is is the single largest in- crease to legal aid funding ever in Ontario," Bentley wrote. "In fact, it is one of the largest sin- gle justice sector investments in history. Th e discussion from here forward needs to be about how to make the funding work as well as possible; an over 20-per-cent increase to LAO's base budget is unprecedented and signifi cant in the best of times. It is extraordinary in these times." Bentley tells Law Times the announcement makes clear the funding will improve support for lawyers accepting legal aid certifi cates. "What the tariff looks like, how it's structured, how it supports the twin goals of im- proving access to the poorest Ontarians, the most vulner- able Ontarians, and better sup- porting the people who do the work, will be the subject of ad- vice we're going to get through the diff erent advisory groups that we're setting up." But Ertel says Bentley has the "underestimated resolve of the defence bar if he thinks that making this type of off er and asking us to co-operate is going to get us to the table." Th e funding increase could raise the legal aid tariff — which currently maxes out at $97 per hour — by up to $5, he says, adding he believes the tariff should increase by at least $50. Ertel also questions how he legal aid boycott could soon become a far more pressing obsta- the big case management of- fi ce will help resolve the issue. But for his part, Bentley in his letter suggested that the shape that offi ce takes will depend on how the defence lawyers' boycott proceeds. "Legal aid is responsible to ensure that the accused who need counsel to defend themselves on serious charges but cannot aff ord them have access to counsel . . . Th e capacity and role of this offi ce will, therefore, depend on the availability of private counsel." For Ertel, that arrangement is problematic. "Assuming they fi nd lawyers that are qualifi ed to work there, which I think is going to be hard, they will institutionalize the unfair advantage that the Crown attorneys have over the defence lawyers both in com- pensation [and] in resources available for expert testimony, for preparation time, for law students, and clerks to assist. "It's just going to perpetuate it, and I would hope that expe- rienced criminal lawyers would not take that employment be- cause we're making a point here that things are not equal, and institutionalizing that, while it might appease any concerns that the public has, would not make the system fair." Ontario Bar Association president Carole Brown, mean- while, says her organization views the attorney general's announcement as an oppor- tunity to work with him on a "bare-bones" proposal. "I see this as a great op- portunity for us as a bar going forward to be able to assist in transformation of the legal aid system," she says. "In terms of the boycott itself, certainly the criminal bar has signifi cant is- sues, as do other members of our bar, with legal aid as it ex- ists presently." Adds Brown, "We have al- ways urged broad-based, sus- tainable legal aid, which is what the proposal, in its bare-bones form, is." LAO did not respond by press time to Law Times' request for comment. 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TitlePLUS title insurance and you, TitlePLUS title insurance and you, together we have all the tools Cosgrove says 'life goes on' after the bench BY ROBERT TODD Law Times dicial Council's decision to call for his ouster, saying he was compelled to resign due to his pending retire- ment, despite finding aspects of the council's report "troublesome." Cosgrove tells Law Times in an interview that once the CJC issued its recommendation to the justice minister, "My options were pretty narrow." While he believes he could have appealed an earlier committee report at ormer Ontario Superior Court justice Paul Cosgrove has spo- ken out on the Canadian Ju- month after the CJC issued a final re- port stating that his actions in a late- Cosgrove F 'Shock and disappointment' people in public office, and they were given little weight, according to the decision." Cosgrove's final criticism is the CJC's determination that the issue of public confidence was central to its decision. He suggests that it remains unclear what evidence is required to make such a determination. inquiry the Federal Court, he says a decision was un- likely before his mandatory retire- ment took hold in December. resigned earlier this Former Superior Court justice Paul Cosgrove tells Law Times that his pending mandatory retirement compelled him to resign from the bench rather than battle a call for his ouster. 1990s murder trial led to the conclusion that he "failed in the execution of the duties of his judi- cial office and that public confidence in his abil- ity to discharge those duties in future has been irrevocably lost." The decision made him only the second federal judge to meet such a fate. But the former judge says parts of the CJC's the senior regional judges in Ottawa since I've been here for the last 24 years, all wrote very positive recommendations, and they also were aware of the trial," says Cosgrove. "So to say that these letters, the people had final report could have been challenged. The council did not use a set of 32 letters of given rise for us to challenge," he says. "The problem with that is, of course I'm retired — manda- tory retirement in December of this year. And the process, for ex- ample, dealing with the constitu- tional issue, took three years." He says he did not want to "So, all of those issues may have Financial Matters with 20,000 pages of evidence likely put forth. The 74-year-old former judge, who will gamble and let the matter play out before Parliament, where an un- precedented joint resolution would have been required to finalize his ouster. Doing so may have proved cumbersome, suggests Cosgrove, no knowledge of what was going on was not accurate." Cosgrove also suggests the council should support written by judges and retired judges, law- yers, and members of the public when coming to its decision, saying they were irrelevant, he notes. "Personally, I found that difficult because, for example, there were my supervising judges, have used the letters from community mem- bers when considering whether he had lost the public's confidence. "It would seem to me that it's logical to test collect an annual pension of about $170,000, says that before the decision he was reason- ably confident that the council would not call for his dismissal. Independent counsel Earl Cherniak, a partner at Lerners LLP, had previ- ously told the council such a stern punishment was not necessary. "It was shock and disappointment," Cos- what the public's demeanour is; you ask people who are knowledgeable in the public," he says. "And there were a number of letters from 9 Focus On ADR/ Mediation 3 Inside This Issue Fight Over Fees 6 grove says of his reaction to the final decision. He says he has been dealing with the fall- out by responding to media inquiries, and See Cosgrove, page 4 "It is now incumbent on sports federations in selection disputes to show they had the proper criteria set up and that it was properly applied . . . The onus is now on the organiza- tion not the athlete. It wasn't quite as clear a few years ago." OTTAWA — The possible closure of McCarthy Tétrault LLP's high- profile office in the nation's capital is unrelated to dire economic cir- cumstances that have hit home for some Canadian law firms, a senior McCarthys partner says. Future uncertain for McCarthys' Ottawa office BY TIM NAUMETZ For Law Times zation we review our business plans on an ongoing basis," Boake tells Law Times when asked of the Ot- tawa office closure possibility. She adds the firm wants to meet the needs of its clients, and that each of its offices have a practice and focus which aligns with McCarthys' over- all strategy. "So it's in that context "Yeah, I guess, like any organi- staff, remains undecided. "It's really just a question of the fact that we are in discussion with lawyers there as part of an overall strategic review," she tells Law Times. "These discussions have been decisions" because of a drop in busi- ness due to the economy, letting go less than 20 of its 650 lawyers across the country. She would not give the specific number or other details. Gowling Lafleur Henderson going on for a while and are not related to the economy," she says. "I would call it a strategic review. Our firm really focuses on integrat- The financial crisis that has hit directly New York and London, being financial centres of the world, and the financial institutions based there, has not hit to the same degree in Canada, primarily because of the strength of the financial institutions in Canada. McCarthys' Ottawa contingent is a "strategic review" based on the firm's national business plan, and the role played by all of its six loca- tions across Canada, says Barbara Boake, national leader, profession- als, at McCarthy Tétrault. Consideration of the future of that we're currently reviewing the Ottawa office, but no decision has been made to close it," she says. Boake would not divulge fur- ther details and said the fate of the office, along with the employ- ment of its seven partners, two associates, and 11 administrative ed practices; we have offices right across the country. We have a very diversified practice geographically and our overall strategy is to inte- grate those practices and develop client teams on a firm-wide basis." Boake, however, confirmed Mc- Carthys has taken "difficult staffing LLP also confirmed to Law Times the firm released staff last week. But Gowlings chairman and CEO Scott Jolliffe said the shakeup did not involve partners or associ- ates. Jolliffe says the firm is shifting toward a "pod" model where law- yers and associates share a smaller number of secretaries, but he would not say how many were affected. The move not only economizes, Quote of the week but also creates a team atmosphere among secretaries that is useful for mentoring and sharing workloads. Sources in the legal community say McCarthy Tétrault's Ottawa re- view may be related to a management See Ottawa, page 4 www.lawtimesnews.com WHICH DIRECTION IS BEST FOR YOU? 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