Law Times

Law Times • may 28, 2012 Reform a 'political minefield' Continued from page 12 1867 Constitution Act and in s. 11(d) of the Charter of Rights and Freedoms and outlined its three core char- acteristics: security of tenure, financial security, and admin- istrative independence. "That means any reform to the system is a bit of a polit- ical minefield, "The judges are going to be quite touchy about any sort of proposal to change the way the system works." When the provincial gov- " says Neudorf. ernment in British Columbia announced its justice reform review, the chief justices of the province' the 1997 case. In Ontario, Neudorf says immediately fired a warning shot with a reminder of the Supreme Court' s three courts s findings in any expansion of the role of justices of the peace could elicit a similarly defensive response. He says Ontario justices of the requirements related to financial and tenure security but that they have far less administrative control than judges. That means the issue could end up in litigation. Any move to strengthen the peace meet FOCUS Lawyers cautiously optimistic about LAO discretion requests T BY KENDYL SEBESTA Law Times requests with cautious optimism that it'll fix a confusing system. "Certainly, there has been some frustration among the criminal bar who may view legal aid as tightening up on discre- tion," says Ottawa' he criminal bar is greet- ing efforts to improve Legal Aid Ontario' process for discretion s a system of discretion that is lib- eral enough to ensure they are fairly compensated. all, president of the Criminal Lawyers' Association. "The rules are not clearly un- s Norm Box- derstood and the tariffs, in many cases, do not adequately reflect the number of hours counsel put into their work. We hope the new system will reflect the rec- ognition of the current condi- tions placed on defence counsel and the consultations will design back from criminal, family, and refugee lawyers about its process for discretion requests in early May. It wrapped up the consul- tation period late last week. It'll use the feedback to develop a new process that it says will ul- timately make things clearer and more efficient. "We began the consultations LAO began collecting feed- " in an effort to look for ways to simplify and clarify the discre- tion request process and to make it more accessible for the law- yers who request it," says LAO spokesman Kristian Justesen. "We've conducted 25 consulta- tion sessions across the province and have received a significant amount of feedback so far. From there, we hope to streamline payments and provide consis- tent decisions on requests while always keeping the stewardship of public funds in mind. nization approves requests for compensation above its hourly tariff rate in exceptional cir- cumstances where lawyers rep- resent vulnerable clients, man- age complex cases or achieve extraordinary outcomes. It initiated the consultation According to LAO, the orga- " process with a view to, in part, better define what the term ex- ceptional circumstances means for both legal aid staff and the lawyers who make the requests. Currently, almost 10 per cent a significant amount of hours," he says. If the LAO consultations are unsuccessful in addressing the issue, Boxall says the result could be significant problems for everyone involved. "If it gets to the point where these issues still exist and there isn't any type of reasonable for- mula for discretion created, could lead to a significant num- ber of cases being overlooked because lawyers may believe they won't be fairly compensated. it of certificates involve discretion payments. According to Boxall, LAO grants few requests. "The current tariff maxi- mum is such that a person can greatly exceed the maximum by looking at the information it gathered from the consultation process and plans to make the feedback public, says Justesen. "We will carefully consider the feedback we have received and will prepare new guidelines based on how that feedback fits into our mandate. In the meantime, LAO is now " " LT PAGE 13 the independence of justices of the peace then runs the risk of negating the intended effect of the reform. " full-blown judicial indepen- dence, it probably won't be any faster because now you've just created another layer of judges who can set their own rules," says Neudorf. The irony, according to At some point, if JPs have Neudorf, is that the Supreme Court traced its approach to judicial independence back to Britain, a country where magistrates still handle the bulk of the criminal matters without any of the protec- tions envisioned by Canada' top court. An army of 28,000 lay s magistrates, sitting in panels of three, dispense with about 97 per cent of criminal mat- ters in England and Wales. They are unpaid, serve for about five years, and have no control over their schedules. "It' was running the trial," says and s almost as if a jury Neudorf. The flexibility speed of the system there meant magistrates were able to start hearing cases and sentence alleged riot- ers within days of the trou- bles in London, England, last summer. It was a stark contrast to the situation in Vancouver where the courts handed out the first sen- tences almost a year after the Stanley Cup riots. LT WEBCAST OPTION AVAILABLE FOR EACH COURSE! 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