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PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Staff Writer ............. Robert Todd Staff Writer ....... Michael McKiernan Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Account Co-ordinator ...... Ryan Rogers Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2010 All rights reserved. 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. Editorial Obiter $5M lawsuit against environmentalists goes too far A legal battle is brewing in Guel- ph, Ont., where the municipal government and a developer are taking five people to task over an environmental protest last year with a $5-million lawsuit. It was last summer that protest- ers entered the Hanlon Creek busi- ness park lands, which environmental groups say are in need of protection due to concerns such as preserving old-growth forest and endangered species. The move halted construc- tion, and while city staff estimated damages from the occupation to be about $150,000, it has since upped that amount to the $5-million figure to account for future damages, accord- ing to a report in the Guelph Mercury. The legal action has the defendants crying foul. At a recent news confer- ence, they said that given that they live below the poverty line, there's no way they'll be able to cover their costs should they lose. Moreover, they argue the case amounts to a strategic litiga- tion against public participation suit. The lawsuit comes after the Ontario Superior Court ruled in the environ- mentalists' favour last year in granting a 30-day injunction on further work at the site. In doing so, Justice Doug- las Gray noted that if "it turns out that the project must be delayed for a year, so be it. The policies enshrined in the Endangered Species Act, 2007, must prevail in these circumstances." In light of that ruling, it seems the defendants make a pretty good case that the latest lawsuit is an unfair attack on their right to stand up for en- vironmental concerns. While the city and developer have a legitimate com- plaint over the costs of delay, the pub- lic's ability to participate in key policy matters is equally important. In this instance, in fact, Gray also issued an injunction against protesters ordering them to end their occupation. In do- ing so, he noted the danger of people taking the law into their own hands. But for the city and developer to now throw a lawsuit at them — particular- ly one claiming $5 million in damages — is taking that issue too far. It's interesting to note that the case comes from an area of the province that has another high-profile litigation matter ongoing involving the govern- ment and a citizen. In that instance, Wellington County has come under fire for helping cover the legal bills of the two plaintiffs, Coun. Brad Whit- combe and chief administrative officer Scott Wilson. The pair are alleging local blogger and senior Bill Mander- son libelled them, but the county's assistance in the case has prompted concerns it's circumventing laws that prevent governments from suing and thereby silencing their own citizens. So we have two instances where mu- nicipal governments in the Guelph area are taking action against residents par- ticipating in public matters. Taken to- gether, they're troubling developments that make one wonder whether offi- cials there have a problem with citizen engagement. — Glenn Kauth LAO unveils 'diabolically comprehensive' block fees Pilot project began last week for standard summary conviction criminal offences L egal Aid Ontario an- nounced the first phase of its implementation of new block fees, effective May 1, to the discontent, dis- appointment, and disbelief of many Ontario lawyers. Initially, only certain stan- dard summary conviction of- fences fall under these new block fees, and LAO says they're provisional. The block fee for a guilty plea on a sum- mary conviction matter is $680; if a charge is withdrawn or stayed, it's $945. So what does this new block fee cover? Well, it's diabolically comprehensive. That one $680 guilty-plea fee covers the bail hear- ing, any bail variations, review- ing disclosure, meeting with the client, counsel pretrials, judicial pretrials, Charter of Rights and Freedoms applications, plea and sentence, DNA applications, and the old acknowledgment fee. It also includes basic disbursements, such as all those collect calls from the jail that just became more expensive. Wow. Only if there's a Gladue hearing or if it's a men- tal-health matter will they pay more. It doesn't matter if the resolution is on the day of trial. Yet LAO has historically paid lawyers with four or more years of experience 12.5 per cent more for their work. Law- yers with 10 or more years of experience have received 25 per cent more. But that's not the case with the new block fees. The rate is the same for everyone for these "standard" cases. In the 1990s, when we saw the first legal aid cuts in On- tario, we had a similar pay structure. The bail hearing was lumped in with the fees for the case. There was a massive flight from the plan, and about half as many lawyers accepted cer- tificates after the cuts. The intention must be to shift the work to the younger members of the bar because senior lawyers aren't going to receive A Criminal Mind By Rosalind Conway adequate compensa- tion from such low fees. The concern should be that for this to be worthwhile, lawyers will have to cut corners and handle many block-fee matters at once, a practice previously referred to as "dump trucks." When the Criminal Lawyers' Association reached an agree- ment with the government after the boycott of homicides and guns-and-gangs cases, sig- nificant increases to the hourly rates for those matters were to take effect over time. It wasn't clear exactly what the new block fees would be, but they were supposed to reflect a typi- cal case settled under the tariff. The summary conviction www.lawtimesnews.com charges included in the block fees comprise a long list of of- fences, including assault, assault with a weapon, assault police, breaches of court orders, and theft of credit cards, among many others. If the Crown proceeds by indictment, the matter doesn't yet fall under the new block fees. The same ap- plies if the client is a youth or if the matter actually goes to trial. What this will mean for typical criminal practitioners is a considerable drop in income, a refocusing of their work on private and more lucrative mat- ters, and in some cases, closing an unprofitable practice. I have my doubts that the new lower level of remuneration will satis- fy most junior counsel because of the number of hours it will actually take to complete the cases to the satisfaction of the client and in busy plea courts. LAO is purporting to re- ward efficiency, but the timing of the resolution of a criminal case is hardly a matter within the unique control of coun- sel. It's dependent upon the client applying for legal aid and providing all of the paper- work, the police handing over disclosure to the Crown, the prosecutor vetting and in turn disclosing the brief, the Crown offering a reasonable resolu- tion, and the court's availabil- ity to deal with the matter. If during the process of settling the case the lawyer is fired, LAO will pay counsel just $250 for all work done on the matter. That includes all of those collect calls. So while this is, according to LAO's web site, a pilot project at this stage, it's going to be a rough period for the defence bar. Funding problems appear to be anything but solved. LT Rosalind Conway is a certified specialist in criminal litigation. She can be reached at rosalind. conway@magma.ca. 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