Law Times

Law Times • December 2, 2013 Page 3 NEWS LAO defends refusal to fund motions BY YAMRI TADDESE Law Times A Superior Court judge has criticized Legal Aid Ontario for refusing to fund part of a proceeding it deemed unworthy through "perplexing" legal scrutiny that fell outside the scope of its role. In a case involving firearm possession charges, LAO decided not to fund interviews with witnesses because it determined the court wouldn't ultimately accept the information gathered as admissible evidence, wrote Superior Court Justice Anne Molloy in R. v. Carrol and Denny. But the legal analysis that went into LAO's reasoning to deny coverage was for the court to undertake, according to Molloy. "It is not the role of legal aid to determine what evidence is, or is not admissible, at a criminal trial. Where the Crown seeks the admission of evidence at trial, it is incumbent on the defence to not only prepare for the motion, but to prepare for the trial as if that evidence may be admitted." LAO's regional manager had also determined the Crown wouldn't be successful in its motion because it was unlikely to find the interviewees, according to Molloy. This was "a circular reasoning indeed, given that the alleged reason for the failure of the defence to locate the witnesses was the lack of legal aid funding," she wrote. For its part, Legal Aid Ontario says its policy requires it to ensure it funds only portions of proceedings a paying client "of modest means" could afford. "LAO is accountable for how taxpayer money is spent. LAO is mandated to manage complex cases to ensure they are adequately and responsibly funded," says LAO spokesman Kristian Justesen. Criminal Lawyers' Association president Anthony Moustacalis says a lack of funding is at the root of LAO's strict eligibility rules. "I think it is fair to say that legal aid is underfunded and has been mandated to strictly apply its eligibility criteria," he says. "This underfunding has led to the increase in self-represented accused." The pressure to apply financial and legal criteria will result in refusals to fund what's an otherwise "worthy motion," according to Moustacalis. Malloy said she was "perplexed" by the analysis LAO conducted in applying the eligibility criteria, including a conclusion that doing the proposed interviews with witnesses might prejudice the defendant's defence on separate charges. The judge disagreed with the legal reasoning. But assessing the merits of proceedings before funding them is a routine practice at LAO, according to Justesen. "Addressing the merits of funding pretrial motions is a part of 'I think it is fair to say that legal aid is underfunded and has been mandated to strictly apply its eligibility criteria,' says Anthony Moustacalis. complex case management and LAO's oversight of big cases," he adds, noting LAO engages in "a careful, detailed analysis" of New York, NY each pretrial motion before determining its merit. A case manager determines the budget for every big case, including for pretrial motions, he notes. "As part of the assessment process, case managers meet with defence counsel before any budget is set and once it is set, the case managers are available to discuss any developments in the case. The use of specific case managers allows LAO the ability to respond quickly to any changes in circumstances, which may require adjustments to the budget." To allocate budget to cases, LAO relies on information lawyers provide. It also looks into the likelihood of the motion's success, the importance to the overall case, and the time and cost of preparing it, Justesen tells Law Times. The defendant's counsel in the case before Malloy at first said she wouldn't interview the witnesses because LAO wouldn't fund it even if she asked. Molloy initially rejected that argument since the defence counsel had "made no attempt whatsoever" to get funding. The next day, the judge said an LAO lawyer, "fully gowned," was in court to make submissions on whether there would be funding for such interviews if counsel had asked for it. Malloy denied the lawyer permission to speak in her gown. "Whether or not funding would be provided is a factual matter, not a matter for legal submissions.  I did not permit counsel to provide that factual information in the guise of submissions from the counsel table," wrote Molloy. LT DISCOUNTS AVAILABLE Individual Discount – Receive 15% off any individual program. Use Promo Code 15LAWFIRM at checkout with any of the events. Group Discounts – We have great group discounts available for you and your colleagues. The more events you purchase, the more you save: , New York, NY New York, NY Call 1-800-308-1700 for more information or to register. New York, NY ThomsonReuters_LT_Nov11_13.indd 1 13-11-05 6:17 PM Get fast and easy access to l t y ble to you s and itt's availa a day. 24 hours Canada's legal professionals! Canada's most comprehensive online directory of legal professionals gives you a direct route to the information you need. departments location and area of practice Visit www.CanadianLawList.com and find out how we're serving you better than ever. compiled by top Canadian legal researchers Untitled-1 1 www.lawtimesnews.com 13-01-03 9:02 AM

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