Law Times

Law Times • may 17, 2010 Chiefs crossing the thin blue line here's one thing you learn quickly when you hang out with police officers while doing your job: you'll never be one of them. T Theirs is a closed world of fraternity, trust, and a healthy suspicion of outsid- ers. You can be liked and even accepted but unless you wear the uniform, you'll always be looking in. So when the Ontario As- sociation of Chiefs of Police descended on Queen's Park re- cently to lobby for a list of legis- lative changes, one of the issues immediately raised a red flag among the rank and file. In addition to changes that would streamline the Provincial Offences Act process by allow- ing written affidavit testimony in administrative cases instead of requiring viva voce evidence, the association also wants an amendment to s. 89 of the Police Services Act to give chiefs discre- tion to suspend officers without pay in the event they are charged with a serious offence. As it stands now, Ontario chiefs can only suspend with pay when an officer is charged. Giv- en the time it takes to process charges through the courts, that means officers can collect their salaries for years and continue to do so even after they've been convicted since an appeal can protract things even further. "We're not talking about of- fences alleged on duty; it's about serious offences while off-duty," says Marco Visentini, a lawyer and adviser to the association who works for the Hamilton Po- lice Service. "In the case of serious offences, in which the accused may be held in custody without bail which then would prevent them from doing their duty, the chief should have the discretion to suspend without pay." The status quo, he says, al- lows police officers charged with crimes like murder to collect their salaries for several years, a scenario that doesn't sit well in the eyes of the public. A case in point is that of Toronto Const. Richard Wills, who was convicted of first-de- gree murder in the death of his girlfriend after 5 1/2 years of bizarre antics. Similarly, Hamilton police officer Craig Galassi was paid $300,000 over five years while he fought a litany of charges over his conduct towards his colleagues. It's a rare circumstance, says Visentini. Only about 50 On- tario cops a year are suspended with pay across the province, costing about $5 million. Still, it's something the chiefs' association wants changed, much to the ire of lawyers like Harry Black in Toronto, the go- to guy for representation when an officer faces charges. "This is not an amendment that should be passed into law," thunders Black. "They may Inside Queen's Park By Ian Harvey say it is intended to cover the Wills situation, but the reality is if an officer is charged with any criminal offence, including, for example, domestic assault or other types of assault off-duty, they will be at risk of suspen- sion without pay. Similarly, if someone in the community bears ill will toward them for any reason, whether connected to the execution of their duties or not, all they have to do is lay an information before a justice charging them with any num- ber of offences." In short, it's a slippery slope. Black says those offences could range from improper storage of a licensed and registered person- al firearm to property offences and criminal harassment. "There is literally an endless string of criminal charges that could be laid against the officer," he says. "This is a provision that could be readily abused and with disastrous consequences. First of all, it is unique to policing that the employer is also the investi- gator and the person laying the charges. This unity of employer- charger is significant. Secondly, an officer would be unable to de- fend himself if suspended with- out pay. Thirdly, officers facing criminal charges are unable to find other employment. "Lastly, the Ontario Court of Appeal observed in Mahood [v. Hamilton-Wentworth Regional Board of Police Commissioners] that depriving an officer of his remuneration would be offen- sive to the public good." His position, not surprising- ly, is echoed by Mike McCor- mack, president of the Toronto Police Association. "Police officers hold public of- fice," says McCormack, who had his own tussles with police brass during his 23-year career on the front lines before his election last year as union boss. "As such, they have tenure and cannot be removed from office without ap- propriate judicial process." Removing the protection of suspension with pay creates a powerful weapon that manage- ment could use to silence offi- cers, he says. Given the government's task of selling the harmonized sales tax this summer and riding out the resulting storm, don't hold your breath for any dramatic changes on this point. However, you can bet the chiefs' associa- tion will be back again. LT Ian Harvey has been a journal- ist for 32 years writing about a diverse range of issues including legal and political affairs. His e- mail address is ianharvey@rog- ers.com. We will return on May 31, 2010. Meanwhile, enjoy fresh content on our web site at: www.lawtimesnews.com www.lawtimesnews.com I COMMENT Block fees still in learning phase: LAO would like to provide some additional back- ground information and clarify some issues raised in the commentary "LAO introduces 'diabolically comprehensive' block fees: Con- way" that appeared in Law Times on May 3. Legal Aid Ontario introduced a pilot pro- gram to pay lawyers providing services for legal aid clients block fees for the appropriate reso- lution of some of the most common criminal charges. The block fee is a single, fixed fee for most of a lawyer's work on an eligible case. Block fees will replace the hours allocated by the regular criminal tariff on these certificates. The pilot block-fees program introduced on May 1 for private bar lawyers is the first phase of block fees for "standard" criminal cases. This phase will affect approximately 20 per cent of LAO's criminal certificates. The transition to block fees raises significant and complex issues for LAO, the criminal bar, and legal aid clients. As a result, the first phase of the block-fee program is a pilot or learning phase that is in- tended to help LAO, the bar, and others better understand the implications of block fees for the criminal justice system. The memorandum of understanding between the Ministry of the Attorney General, the Crimi- nal Lawyers' Association, and LAO agreed to in January commits LAO to expand block fees to other standard criminal cases, including remain- ing summary cases and many indictable matters, in 2011. The learning component of the first phase is specifically incorporated into the memo- randum of understanding. Block fees don't take away hours or reduce payments to lawyers. LAO's price for block fees includes a calculation of all fees and discretion historically paid for most tariff enhancements available on summary matters. The block fees paid for guilty pleas, stays, and withdrawals are calculated at 95 per cent of the average cost LAO pays for these types of cases. The remaining five per cent will be paid out to fund additional services for LAO's most vulnerable clients, including aboriginal clients and those with serious mental-health issues, and to provide a slight buffer to ensure the program remains within budget. During the initial pilot phase of the block-fee program, LAO will be paying a single, undif- ferentiated fee on block-fee matters. Based on the results of the block-fee pilot and following consultation with stakeholders, the block-fee rates for the second phase of the program may be amended to include tier or experience increases. For the pilot phase of the block-fee program, LAO chose the approach of a single rate based on the amounts historically paid to lawyers for certificates eligible for block fees. Currently, more than 70 per cent of the fees on those cer- tificates are paid to tier 3 lawyers and, as a result, LAO's block-fee prices are heavily weighted to- wards more experienced lawyers. Consequently, shifting to a tiered structure would only mar- ginally increase fees for the highest-tier lawyers and would substantially reduce fees for less ex- perienced lawyers. Moreover, block fees, by their very nature, reward experienced counsel who are best able to resolve cases quickly and appropriately. A simple, uniform block fee will help recruit and retain younger criminal lawyers to criminal cer- tificate work because of its predictability and ease of billing, thus addressing a long-standing concern of the criminal bar. Additional funding for block fees was calcu- lated to incorporate the first two tariff increases set out in the January memorandum of under- standing. It commits LAO to five additional rate increases on block fees. Over this period, the fees for a guilty plea and withdrawals will increase more than 27 per cent, resulting in fees Letters to the Editor of approximately $870 for pleas and $1,200 for stays and withdrawals. It's important to note that the cases within the first phase of block fees generally represent LAO's lowest-cost, straightforward criminal certificates. These cases are most suitable for block fees because they are high-volume cases for which most lawyers' billings to LAO fall into a narrow, predictable range. As part of the pilot, LAO is implementing new quality-assurance tools for lawyers taking on these types of cases. They include a require- ment for lawyers to provide information about the outcomes or dispositions of their cases cov- ered by the block-fee program. The second phase of block-fee cases will ad- dress more complex and higher-cost certificates. The fees paid for these cases will be higher and the block-fee structure more complex. LAO is committed to ongoing consultation with the CLA on block fees. Complete information, including rates, types of charges, and detailed questions and answers about the block-fee program for private lawyers are available on our web site at legalaid.on.ca. Sue McCaffrey, vice president and general counsel, Legal Aid Ontario TAX LIABILITIES Vern Krishna (see "Financial Matters," Law Times, May 3) warns that, if a person owes tax at a time when he or she transfers property to a spouse, the spouse will be liable for the transfer- or's tax up to the amount of the fair-market value of the property transferred. That is generally so by virtue of s. 160(1) of the Income Tax Act. But he omits to mention that, by virtue of s. 160(4) of the act, s. 160(1) will not apply in re- spect of property transferred by a taxpayer to his or her spouse pursuant to a court order or a writ- ten separation agreement if, at the time the prop- erty was transferred, the taxpayer and the spouse were separated and living separate and apart as a result of a breakdown of their marriage. David Nathanson, Davis LLP, Toronto See you May 31 Due to the upcoming holiday, Law Times will not publish in print next week. PAGE 7

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