Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Associate Editor ......... Robert Todd Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator .. Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2009 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 Inc. 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 Signs of trouble in the human rights system H enry Freitag knows his issues well. Having fought the Town of Penetanguishene a decade ago in his battle to get his municipal council to stop reciting the Lord's Prayer, he's in a good position to lead his current bid to get politicians there to abolish such religious observances altogether. So, in launching his case to rid of all prayers, including the non-denominational one the town council has observed since his victory at the Ontario Court of Appeal in 1999, Freitag is so far representing himself at the Human Rights Tribunal of Ontario. The Penetanguishene senior may suc- ceed, but it's clear that many other peo- ple alleging discrimination before the tri- bunal would struggle to make their case without a lawyer. It's worrisome, then, that roughly 70 per cent of the people making complaints to the tribunal since last year's overhaul of the province's human rights system don't have counsel. The high number is somewhat logi- cal given that many cases are still at early stages and given that the changes aimed in part at allowing people direct access to the tribunal without first apply- ing to have the Ontario Human Rights Commission investigate their case and provide legal representation. But while the old system came under heavy criticism for long delays, human rights advocates were deeply concerned the revamped one would leave com- plainants, many of whom are vulnerable, without the ability to make their cases. In efforts to allay those concerns, the province promised the new Human Rights Legal Support Centre would fill the gap by providing lawyers to take up people's causes. That would still leave complain- ants without a body like the commission to investigate their files but at least held some prospect of speeding up the system while ensuring access to justice. In the meantime, the commission, whose role now largely involves dealing with systemic rather than individual cases of alleged discrimination, would establish two secretariats, one for disability and the other for racism issues. One year later, the government has largely fulfilled its promise of a speedier process. But while that's good, the commis- sion has yet to set up the two secretariats. At the same time, its staffing levels have gone down to 55 from 140 before the changes, while the legal support centre has filled at least some of that gap with its roster of 25 lawyers and eight parale- gals. Nevertheless, the support centre has already had to cancel a pilot duty coun- sel program at the mediation stage and, as the new crop of cases filed since the overhaul reaches the hearing stage, it will likely find it hard to handle the demands for help. It's unclear how the onset of those hearings will play out, but the statistics showing so many complainants are with- out lawyers are a sign of stress to come. They point to a need for more resources, most likely through more staff at the le- gal support centre. Otherwise, vulner- able people will start falling through the cracks, a scenario that would leave the many advocates who criticized the con- troversial changes having correctly pre- dicted that the government would fail to live up to its promises. At the very least, we need an official report on how the new system is doing as well as some answers on how the govern- ment intends to deal with any problems that arise. — Glenn Kauth O Bentley's legal aid solution a case of déjà vu A Criminal ntario's criminal bar, disappointed with the government's latest re- sponse to the chronic legal aid crisis, is continuing to refuse to take on homicides and guns- and-gangs cases. On Sept. 8, Attorney General Chris Bentley announced the province would deal with inad- equate hourly rates for criminal lawyers by instituting some sort of block fee system and devel- oping expertise in homicides through a public defenders' of- fice. Ironically, the old 1987 tariff funded most cases on a block fee basis. Lawyers got their money when charges were withdrawn and for discrete pieces of work like bail hearings and pretri- als. Most cases were block fee matters. So what happened? First, the Supreme Court of Canada's 1990 decision in R. v. Askov came out on the right to trial within a rea- sonable time. The courts were backlogged with cases that were likely to be stayed by judges. The Crowns also brought cases forward to stay them and to save court time. Perhaps 90,000 matters were withdrawn in a short period of time, and the legal aid plan had to absorb that cost on a block fee rather than hourly basis. So legal aid was, for a brief period, very expensive. Second, there was a public per- ception that counsel were bilking the plan. Half a dozen high-bill- ing lawyers had been identified. The epithet "dump truck lawyer" became a popular phrase refer- ring to practitioners billing too many block fees. In 1996, a new criminal tar- iff abolished block fees and re- quired billing all matters on an hourly basis. The new hourly caps included bail hearings and pretrials, while the new system required approval for bail re- views. This is how it worked: if the client pleaded guilty to a summary conviction matter, the Mind By Rosalind Conway plan paid for up to four hours of legal services, which included bail or varying bail and any pre- trials whether with or without a judge. If the client went to trial, the plan permitted counsel to bill up to 6 1 /2 hours for all services. Some lawyers, realizing that they might not be able to bill for pretrials, stopped doing them. Some also stopped doing bail hearings. In the years that followed, various reports came out on the issue. Robert Holden and former justice Fred Kaufman's 2000 "Tariff Review Task Force Report" recommended hourly rates of $105 to $140. Indeed, the 1987 hourly rates of $67, $75, and $84 remained in effect www.lawtimesnews.com until the Ottawa and Brock- ville legal aid boycotts of 2002. At that point, two five-per-cent increases came in, and since then there has been one other five-per-cent raise for a grand total of a 15-per-cent increase to the hourly rate since 1987. The highest present rate avail- able is $97 for lawyers with more than 10 years of experience. This is less than the recommendation for the most junior lawyers near- ly a decade ago. Let's not even talk about inflation. During the 2002 job action, fledgling public defender offices opened up but they were not aim- ing to absorb either a large vol- ume of cases or the most serious ones. The government now seems to be suggesting it could develop expertise in the most serious mat- ters in such offices. Ironically, Legal Aid Ontario itself has in- stituted extremely serious crimi- nal matters panels. Developing such a public defender system in Ontario would probably take a with September 28, 2009 • Law timeS Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clb- media.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia.ca, or Kathy Liotta at 905- 713- 4340 kliotta@clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. decade. Accused people need senior counsel for serious matters now. The thrust of the reports that have come out since 2000 is that it is the hourly rate that's at the root of the problem, not the can- cellation of the old block fee sys- tem. It is the lawyers' collective dissatisfaction remunera- tion that makes legal services scarce, especially for serious and lengthy matters. The problem with the plan is inadequate rates and the lack of any regular re- view mechanism for them. Traditionally, the private bar has served the public in Ontar- io. If lawyers as a group were so greedy, they would have gone else- where long ago. No other mem- bers of the justice system have to subsidize it. Both the public and lawyers deserve a workable and transparent solution. LT Rosalind Conway is a certified specialist in criminal litigation. She can be reached at rosalind. conway@magma.ca.

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