Law Times

Law Times • SePtember 1, 2014 Page 5 www.lawtimesnews.com Changes at Legal Aid Ontario CLA concerned about duty counsel expansion By Glenn KauTh Law Times f Legal Aid Ontario has the money to hire more duty counsel, it should also invest in private-bar services through certificates, according to the Criminal Lawyers' Association. "e issue is why not invest in the private bar with this sur- plus?" asks Lou Strezos, who chairs the CLA's legal aid com- mittee, of LAO's improving fi- nancial situation. e comments come as LAO has begun a spate of hiring of duty counsel with the potential for those staff lawyers to handle more complex matters up to and including trials in some cases. "Where is the corollary expen- diture with respect to a vibrant, independent bar?" asks Strezos. LAO has vigorously denied the new duty counsel positions represent any kind of move to- wards a public-defender system. CLA president Anthony Mous- tacalis believes otherwise and suspects the move is a bid to head off a future boycott of legal aid matters by defence lawyers similar to the one they launched in 2009-10. "In my view, what's underlying this expansion of ser- vices . . . it's also a desire to main- tain control over the delivery of services in a way that LAO hasn't had a discussion about," he says. Moustacalis has other con- cerns as well. First, he says turn- ing to duty counsel is unfair as it denies legal aid recipients the same right to counsel of choice that others enjoy. He also says LAO is undertaking the current expansion with little notice or consultation with the private de- fence bar or the public. LAO, he argues, is "making public policy decisions without public consul- tation. at's anti-democratic." When the CLA and LAO reached a memorandum of un- derstanding to end the boycott in 2010, Moustacalis notes, part of the deal included block fees. While the fee amounts were low, he says LAO suggested lawyers could balance out more com- plicated cases by taking simpler matters they'd spend less time on. But a lot of those simpler matters ended up going to duty counsel, he adds. "ere's a lot more of them than there used to be," he says of duty counsel, whose ranks have been growing significantly over the years. In its responses to the con- cerns, LAO says it believes in a mixed system that includes a strong private criminal defence bar and notes it's embarking on hiring staff duty counsel aer a financial analysis showed doing so was cheaper in some areas than retaining outside defence lawyers to do the work. It also says duty counsel rarely handle trials and notes the current ex- pansion is consistent with its mandate to serve the poor. "If I can satisfy a client's need with a duty counsel service, I'm go- ing to do that," David McKillop, LAO's vice president of policy, research, and external relations, said during a question-and- answer session at the County & District Law Presidents' Asso- ciation plenary in May. He was responding to questions about the expanded role of duty coun- sel and whether they'd be doing more complicated matters such as murder trials. "Duty counsel cannot do complicated, complex work," he said. Asked directly about duty counsel doing murder trials, McKillop said: "I do not anticipate they'll be doing murder trials." But he added: "It depends on what the qualifications of the person would be. I can't say it would never happen but it's not necessarily part of the plan." McKillop also addressed the concerns about clients having choice of counsel. "People have choice of counsel, and if they want to use the staff service, they can do so. If they want to utilize a member of the private bar, they can do so. We will not be steering certificate work to these folks." While there have been sug- gestions the current expansion is a major one, neither LAO nor the CLA were able to offer de- tailed numbers on the hiring. At the CDLPA plenary in May, McKillop noted LAO had al- ready hired three senior counsel with plans to fill more positions this summer. e goal of the new senior hires, he said, was to assist in areas not served by the private bar as well as to mentor other duty counsel. He cited the lack of private defence lawyers to take certificate matters in some areas due to the greying of the bar as an additional reason to hire more duty counsel. "I can't afford to wait until the day that happens," he said. Essentially, McKillop said that if duty counsel feel they're capable of resolving a matter and they have the client's in- structions, they'll do so. at's the case even if the client is facing jail time, something he admitted hasn't generally been the approach in Ontario. In general, they'll likely handle mat- ters where someone's facing up to 30 or 60 days in jail, he noted. e duty-counsel expansion is among a number of moves that have been making things more difficult for defence law- yers over the years, according to Strezos. "We also saw last year a tightening of discretion," he says of LAO's willingness to compen- sate lawyers who put in claims for extra pay due to the added demands of a case. Defence lawyers have also struggled as LAO issues fewer le- gal aid certificates. But according to LAO, the decline in certificate numbers is more a reflection of decreasing crime rates and de- clining activity in the criminal courts than anything else. LT NEWS Hull & Hull LLP is pleased to announce that the Honourable R. Roy McMurtry, OC, O.Ont, QC LSM has joined the fi rm as Counsel. Honourable R. Roy McMurtry, OC, O.Ont, QC LSM is a former Chief Justice of Ontario, High Commissioner to Great Britain and Attorney General for Ontario. He was deeply involved in the patriation of the Canadian Constitution and the creation of the Canadian Charter of Rights and Freedoms. 141 Adelaide Street West, Suite 1700, Toronto, Ontario, M5H 3L5 Telephone: 416-369-1140 Fax: 416-369-1517 www.hullandhull.com Hull&Hull_LT_Sep1_14.indd 1 14-08-27 8:44 AM ANNOUNCEMENT I

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