Law Times

October 20, 2008

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PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Associate Publisher ...... Gail J. Cohen Editor ............ Gretchen Drummie Associate Editor ......... Robert Todd Staff Writer ............. Glenn Kauth Copy Editor ............. Neal Adams CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator .. Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta . . . . . . . . . . . . . . . . . . . . . . . . . Rose Noonan Sales Co-ordinator ......... Sandy Shutt 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. ©Law Times Inc. 2008 All rights reserved. Editorial Obiter W it doesn't really matter if the local con- stabulary decides to snap on the Latex gloves for a rummage around in our trash because all they're going to find is . . . garbage, right? If the police want to wallow in our waste, well then, many would say: "Fill your boots, boys." And aren't the few who may be criminally inclined smart enough these days not to dispose of incriminating evidence right outside their homes? Af- ter all, if it's not the cops raiding the refuse, then raccoons and their ilk have been known to penetrate un-bungee- corded, city-issued garbage bins and leave the contents spread out on public display. Or is that "plain view?" If you've got nothing to hide, does it For most of us, in a criminal sense, hen you put out your gar- bage, do you believe it to be private? OctOber 20, 2008 • 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 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 Publications Mail Agreement Number 40762529 • ISSN 0847-5083 $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign address- es. 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. CIRCULATIONS & SUBSCRIPTIONS 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@clbmedia.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 or Rose Noonan at 905-726-5444 rnoonan@clbmedia.ca ADVERTISING Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Trash talking at the Supreme Court matter then if the authorities root around in your rubbish as long as they clean up the eggshells on the sidewalk? Is the real worry just a creepy, intrusive feeling the activity may inspire in some? (We left our tinfoil hat at home and so have decided concerns about DNA and fingerprint collection for data- banks if police are given free-wheeling access to trash, would be problematic in that it would be hard to prove who deposited the samples on the orange peels behind closed doors.) Well, rest easy. The Supreme Court is deciding just how private is trash. The question arises from a case in- house. Patrick was subsequently con- victed of drug offences. The SCC panel was asked at a recent hearing to overturn the conviction and exclude the evidence. "Permitting police to harvest the contents of our garbage, our house- hold waste, is the functional equivalent of looking through the house," Cana- dian Civil Liberties Association lawyer Jonathan Lisus is quoted in the Toronto Star. "At the very minimum it's police looking through the window." But government lawyers argued volving Alberta's Russell Patrick. Police reached over Patrick's property line and snagged garbage bags which their snoop- ing revealed contained stuff one would normally associate with an ecstasy lab, thus scoring a warrant to search his there's no privacy claim since the stuff is "abandoned" once it's in the container, the Star reported. Actually, Patrick's lawyer Jennifer the 'reaching over.' It is one thing to sift through the stuff when it's already on public prop- erty for pick up on its way to a public dump; once it's on a sidewalk it's hard to argue privacy. But it's quite another thing when the police tippy-toe over the property line like cartoon characters to make off with what we think is ill-gotten booty. It doesn't matter if it is junk des- Ruttan, had a good point when she suggested the territorial right to pri- vacy was shattered when the cops tres- passed. She's right. This is all about tined for public disposal — as long as it's on the other side of the line it's still on private property. We should have the right to edit our garbage before fi- nal disposal while it's still in transit, close but not quite public yet. But if the court disagrees, can we at least get an order that the cops drag the bin back to the doorstep? — Gretchen Drummie if Ontario commissions any more studies of the Ontario Legal Aid plan, this will seriously antagonize the bar and be viewed as another attempt to indefinitely defer deal- ing with the problem. The Report of the Legal Aid Re- view 2008 is the province's third study since 1999. During this same period the total number of criminal lawyers accepting certifi- cates has dropped by 14 per cent, and those accepting family certifi- cates by a whopping 29 per cent. The main issue for the bar is the hourly rate. The rates are currently $77.56 (0 – 4 years); $87.26 (4 – 10 years); and $96.95 (10 years +). The original philoso- phy behind the legal aid rates was affordability to the client of mod- est means. The current rationale is maximizing services within a limited pay packet. There were no rate increases U niversity of Toronto Fac- ulty of Law Prof. Michael Trebilcock concedes that between 1987 and 2001. In 2000, former justice Fred Kauf- man and Robert Holden's report Pay the current rate for clients of modest means A Criminal recommended rates of $105 to $140 per hour. But Trebilcock says such increases would not be feasible, fiscally or political- ly, because they would result in rates of $120 to $160 in 2007 dollars. I am not an actuary, but allowing for a further 3 per cent inflation, this might be $124 to $165 in 2008 dollars. From 2002 to 2006, there Mind By Rosalind Conway were three five per cent in- creases, yielding a compounded increase of 16 per cent. This sounds reasonable, but because there had been no increases in the previous 14 years, there had been a serious erosion of the rates. Trebilcock concludes that the 1987 base rate of $67 per hour would be $110 in 2007 dollars. Although he does not calculate the rate for the other two experience levels, Tier II would be an additional 12.5 per cent, or $123.75, and Tier III would be 25 per cent more than the base rate, or $137.50. That's in 2007. Let's take it a step further. Using the professor's base rate of $110, one can make calculations. Based on the formula "hourly rate for client of modest means" x "rate of inflation," we can cal- culate what the three rates should look like in 2008, allowing for 3 per cent inflation. Zero to four years: $113.30; four to 10 years experience: $127.46; and ten years experience: $141.63. This means that Legal Aid Ontario presently pays lawyers only 68.5 per cent of what a client of modest means would pay. Despite the fact that on first blush his report seems to rec- ommend raising rates to $110 per hour, he resiles from taking that position. It would be fairer to say that he recommends a base rate not significantly lower than $110: ". . . if the 1987 base rate of $67 www.lawtimesnews.com private bar to the legal aid system and will exacerbate the unfair- nesses and inefficiencies at present in the existing tariff structure." The lack of a regular review mechanism has been a concern for lawyers. He recommends vesting the authority to review the tariff solely with legal aid itself, but within its own envel- ope. The province would then review the size of that envelope every three years. The system is not, as he puts it, in a state of "initial equilib- rium," because we are not where we once began, at the "client of modest means" test. He notes other problems: clients have to be significantly poorer today to qualify for a certificate, and there are recruitment and reten- had been adjusted for inflation it would have been almost $100 per hour in 2002 (and approxi- mately $110 in constant 2007 dollars). Hence, a base rate sig- nificantly lower than this range . . . seriously risks further attenu- ating the already tenuous and diminishing commitment of the tion issues with duty counsel and clinic lawyers. The bar is greying: the lawyers accepting the bulk of the certificates are the older lawyers. The public defender model proved to be too expensive for criminal law, with the three offices never gen- erating more than two-thirds of their operating costs. While Trebilcock does not say we are in a crisis, he clearly feels that one is looming again, and he recommends "urgent and immediate attention." His recommendation is to raise the tariff "significantly" in the immediate future. While he does not crunch the figures, perhaps because of their inher- ent lack of palatability, I am not so fastidious. So there you have it: pay the lawyers $113.30, $127.46, and $141.63 an hour. Those are the current rates for clients of modest means. LT Rosalind Conway practises crim- inal law in Ottawa. She can be reached at rosalind.conway@ magma.ca.

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