Law Times

June 9, 2008

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Law Times Earlug Ad 1/16/08 4:06 McKELLAR STRUCTURED SETTLEMENTS INC. 1-800-265-8381 ckellar_LT_Jan14_08.indd 1 $3.55 • Vol. 19, No. 191/8/08 3:03:02 PM Inside This Issue 3 JPs Retiring at 75 6 Inventing Appeal Court 9 Focus On Construction Law Quote of the week "No one should think that the testimony of U.S. nominees to the U.S. Supreme Court will provide penetrating insights into the thinking of future judges. The time is too short, and the atmosphere in the U.S. is too partisan." — Eugene Meehan lawyer, Lang Michener LLP see Politicians, page 4 S Covering Ontario's Legal Scene AG targets criminal delays Bentley moves to speed up cases BY ROBERT TODD Law Times but lawyers say the province still faces a long trek before reaching a solution to the problem. "The review is long overdue, and I can say trategies announced last week by Attorney General Chris Bentley are a good first step toward shortening criminal court delays, that improving the timing of disclosure and fostering ownership of files through dedi- cated Crown management and the improve- ments to on-site legal aid are all important first steps," says Toronto criminal defence lawyer Adam Boni. "But they do not go far enough in solving the entire problem. My view is that you cannot arrive at a solution by solving only part of the problem." Included in Bentley's announcement was a commitment to reduce court delays and appearances by 30 per cent over the next four years, making publicly available crimi- nal court statistics (http://www.attorneygen-, assigning a "dedicated prosecution" to cases, and placing 17 more legal aid application of- fices in criminal court locations. Bentley also has assigned Regional Senior case, which the ministry said caused delays. The government said it aims to intro- duce the dedicated prosecution service to the province's 17 high-volume court loca- tions by the end of the year. By committing to working with Legal Aid Ontario to add to the nine current on-site application offices, the government hopes to get more lawyers assigned to cas- es quicker, which it said will lead to fewer court appearances for accused persons. Ontario Bar Association past president Justice Bruce Durno and senior Crown at- torney Kenneth Anthony the task of leading an implementation team to find other ways to speed up the criminal court process. The government said that in 1992 it took an Among new measures announced by Attorney General Chris Bentley was a commitment to reduce court delays and appearances by 30 per cent over the next four years. average of 4.3 court appearances to resolve a crimi- nal case, but by 2007 that number had risen to 9.2 appearances. Also, while in 1992 cases were in the system for an average of 115 days, that number had increased by last year to 205 days. The commitment to dedicated prosecution will see Crown prosecutors work with support staff in "small, tight-knit teams" to deal with cases from their entry into the court system to resolu- tion, "or until it proceeds to trial," said the minis- try. Several Crowns previously dealt with a single that we have quite explicit targets and will be able to track the targets courthouse by courthouse across the province means that these are realistic, achievable goals which will actually be fulfilled," says Morton. "There's no real alternative — it's one thing to say we're going to work on speed- ing cases up, but unless you measure the ef- fect of the changes, you have no idea if the changes are working, and it's much easier to let the status quo continue." Morton expects Durno and Anthony will look at reducing the number of unrep- resented accused, which he says has "sky- rocketed" in the last two decades, as a way of further reducing delays. "Unrepresented accused poses an enor- mous challenge for the courts," he says. "Deliv- ery of disclosure is problematic, they don't know how to approach a hearing, how to do things, and they slow down the system immensely." James Morton says the government has tak- en an important step by creating a target for improvement. "The transparency is critical. The fact Charter challenge of legal aid fees could happen BY TIM NAUMETZ For Law Times OTTAWA — Mounting court rulings that Ontario's legal aid fees are woefully inadequate could ultimately lead to a Charter chal- lenge of the rates, a leading Ot- tawa defence lawyer says. ings since July 2007 that resulted in court-ordered increases to fees that otherwise would have been set at the legal aid maximum of $96.95 an hour, or lower. In the latest, Superior Court Jus- tice Colin McKinnon ruled earlier this month the provincial Crown would have to pay Ottawa criminal the reasons for his decision. Huot sought the order after the attorney general's department had not re- sponded to invoices she submitted. Huot says the growing stack of judgments increasing fees for counsel acting under legal aid provided her with a substantial source of authorities to argue she I can certainly say that universally, judges are telling me they're getting less-experienced lawyers doing more serious cases, and the Crown attorneys are telling me the same thing, and the defence bar is telling me the same thing. The judgments — which hiked fees paid to legal aid counsel by more than 100 per cent in some cases — are also drawing attention to a legal aid system that could con- tribute to wrongful convictions, says the head of the province's Criminal Lawyers' Association. There have been at least six rul- defence lawyer Catherine Huot $150 an hour as amicus curiae in a murder case being heard by McKinnon. McKinnon listed the legal com- plexity of the case, Huot's familiar- ity with it, the defendant's prefer- ence for her as amicus curiae while he defends himself, and her private rate of up to $275 an hour among should be paid more than the $87 an hour she would otherwise have received after seven years at bar. "I didn't just pick a number out of the hat," she tells Law Times, adding she believes the number of court-ordered increases where lawyers are acting as amicus curiae under legal aid will increase. "I looked at what they were earning and I asked for it. If you're appointed by the court, I don't think it will stop. I think people will keep asking," she says. The debate over Ontario's legal aid rate is over a decade old — two earlier court-ordered increases in fees occurred in 2003 — but it has reached the point where concern is growing over the effect it may be having on the justice system. Frank Addario, president of the CLA, says the growing share of law- yers working on legal aid with little or no direct trial experience in homi- cide cases could lead to a miscarriage of justice — if it has not already. He lamented the passing more 416-598-5899 1-800-410-1013 TitlePLUS title insurance and you, together we make real estate real simple. June 9, 2008 See Measures, page 2 than 10 years ago of a mentoring system that was once common under legal aid, with a senior and a junior lawyer both taking a See System, page 2

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