Law Times

PAGE 4 NEWS June 8, 2009 • Law Times Government must 'declare itself' on legal aid program Continued from page 1 Bentley tells Law Times in an interview. "We really do need to fi nd a way to renew legal aid. Th at's what I've been working very hard on — to make sure that those who need the service can get the service in the way they need it, and those who do the work are supported in the work that they do." Bentley suggests the experi- ence he brings to the AG's of- fi ce — 25 years working on legal aid cases — will help him strengthen the system. "We will most likely be able to renew legal aid if we contin- ue to work together on fi nding the right path for that, and that I'm able to do the work that I'm doing in fi nding the right way to renew it," he says. "If anything about achieving the goal we all share was par- ticularly easy, then it probably would have been done a long time ago," he says, also noting that the recession has delayed progress on the issue. "But I share the passion of those who are expressing a frustration." Addario reacts to Bentley's comments with the follow- ing remarks: "I don't doubt the sincerity of his commitment. We know his appreciation of what defence counsel do is not feigned. But his government does not share the sense of ur- gency that the bar feels. Th e pro- gram has lost its credibility with its best service providers. Real change is required to bring them back. And the timing of that is in the government's hands." Th e AG has received three reports — November 2008's LeSage-Code report on major criminal cases, October 2008's Goudge report on pediatric forensic pathology, and July 2008's Trebilcock report on legal aid — urging improve- ments to the legal aid system. In their report, former Supe- rior Court chief justice Patrick LeSage and then-law professor Michael Code concluded that a higher tariff rate would bring effi ciencies to the system by at- tracting more experienced de- fence lawyers to big cases. Th e report noted that 55 per cent of matters under the big-case management scheme are being handled by defence lawyers with less than 10 years of experience. About 28 per cent of cases are being tackled by those with less than four years of experience. "We appear to be trapped in a vicious circle: the longer criminal trials become, the less likely it is that leading counsel will agree to conduct them on a legal aid certifi cate; and yet hav- ing leading counsel conduct the defence in these cases is one of the solutions to the overly long trial, as it is these counsel who are most likely to conduct the trial in an effi cient and focused manner," stated the report. Criminal defence lawyer Joseph Neuberger, who is par- ticipating in the boycott, says he and other lawyers are not looking for an "astronomical" legal aid rate. "But there needs to be some adjustment up in both the rate and hours allotted to theses cases, in order that lawyers are properly funded and can have offi ces that have the resources necessary in order to eff ectively defend people and make full answer in defence of charges. Because that's in the interest of the justice system." Neuberger admits that law- yers have a couple of hurdles in this campaign. He says the "op- tics" of the boycott are poor, and it's unlikely that the government would win big political points by increasing pay to people who defend those accused of crimes. "But I think the message that has to get out, not only to the le- gal community but to the com- munity at large, is that defence lawyers play an integral role in the overall criminal justice sys- tem," says Neuberger. Defence lawyer Paul Cope- land, who is currently acting as a special advocate and notes that his participation in the boycott is largely symbolic, says he thought it was impor- tant for lawyers like him to lend support to the eff ort. Copeland sat with Bentley on a Law Society of Upper Canada legal aid tariff reform subcom- mittee, when the law society still ran the legal aid program. "He was at that point very supportive of trying to get a bet- ter system in place, and trying to get it functioning properly," says Copeland. He says, "Th ere has been an overall pathetic response to the need to keep the tariff in pace with what was there . . . Every increase that's been gotten has generally been by way of a war." Defense lawyer Clayton Ruby has also signed on to the boycott. He says, "It's humiliating that Ontario provides second-rate legal services for the poor. It's outrageous that criminal lawyers should be donating the money necessary to keep criminal de- fence going to the province." Says Addario: "I liken it to the government building a hospital and promising that it will serve all members of the community and then underfunding it to an extent that the nurses, orderlies, and doctors are required to pay to operate it. Th at's basically what's happened with the legal aid pro- gram for the last 20 years. "Successive provincial gov- ernments have underfunded it to a point where without the generous donated services of criminal lawyers, it wouldn't be able to operate." Addario says the government needs to "declare itself" on the legal aid program. "Is it behind legal aid, and is it willing to do what is re- quired so that it can say there's access to justice for everyone? Or is it in favour of a two-tier system? If it's in favour of a two-tier system, then come out and say it." LT DeMarinis: it's an 'extraordinary story' Continued from page 1 Creditors Arrangement Act have led to a legal environment that does not allow companies to ignore collective agreements with their unions or unilaterally interfere with pension plans. Th e insolvent companies are essentially compelled to bar- gain new agreements for the restructuring, including adjusted pension benefi ts if possible, likely with government approval required for long-term pension fund defi cits. "Th ey (American fi rms) sometimes look at Canada as being a cost without a benefi t, in terms of the process," the lawyer said. Even so, U.S. parent fi rms with Canadian subsidiaries usu- ally seek protection in both countries. "Th ere are cases where there is no need to do restructuring in Canada, but if there is substantial minded management on both sides of the border and substantial assets on both sides of the border, and diff erent stakeholders and creditors, the normal route is to fi le applications on both sides," says Fogarty, who acted for unsecured creditors in the recent in- solvency of AbitibiBowater. DeMarinis and Fogarty disclosed an unusual develop- ment in the status of the Companies' Creditors and Ar- rangement Act that has taken place under the government of Prime Minister Stephen Harper. Th e Conservatives have yet to put into force amendments to the legislation that former Liberal prime minister Paul Martin managed to pass through Parliament in the last days of his government. Th e amendments would have enshrined into the act the pro- tection for collective agreements and pension plans that a series of court decisions had already established in case law. But, nearly three years later, the Harper cabinet has not passed regulations to give the new legislation force. Despite that, the Conservatives did follow through on a com- No, we don't really think of ourselves as superheroes (although, we do regularly appear just in time to save the day) E-discovery requires expertise, strategic understanding, diligence and a uniquely collaborative approach. Fortunately, we have access to the most talented litigation support experts through our broad network of industry leaders and our ever-expanding database of over 30,000 legal professionals. Keep your e-discovery requirements in-house by recruiting our e-discovery experts. For seamless integration with the shortest possible search time – whatever your needs … whether it be one expert, a team, direct hire, temporary or contract. Just call us. We'll be there! • Phone: (416) 363-7227 • Fax: (416) 363-6125 • kentlegal.com • www.lawtimesnews.com panion bill the Martin government passed at the same time — strengthened protection for employees during bankruptcies. Th e ramifi cations of the auto bailout, particularly the multi-billion-dollar deal to save General Motors, are enormous, the lawyers say. Ontario and the government of Canada will get 12 per cent of GM shares in return for at least $10.5 billion. Th e U.S. government, throwing in billions more, will get 60 per cent of the new GM shares. "Here is a situation where the role of government is now becoming involved in private enterprise," says Fogarty. "It's the largest restructuring ever." DeMarinis adds from his front-row seat: "Th ere's a sense that this really is an extraordinary story." LT

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