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Legal Aid Ontario is “punishing” criminal lawyers who take cases to trial at the Superior Court level, using discretionary powers to slash legal fees by cutting billable hours on these complicated matters – after the work is already done, charges Toronto criminal lawyer Christopher Hicks.
“LAO’s emphasis on money at the expense of all other values – for example, effective assistance of counsel, fair trial, full answer and defence – will destroy our firm and most of the criminal bar,” predicts Hicks, a partner at Hicks Adams LLP.
“This is a direct threat to the criminal defence bar,” adds Hicks, noting the message is that “trials are no longer viable, only pleas of guilty will be tolerated.”
“Trial counsel have a discretion to exercise for indictable offences and our point is they (LAO) are now exercising that discretion to the disadvantage of criminal lawyers, particularly those who do trials,” he says.
Hicks explains that cases run on a tariff system. So each set of charges, depending on how long the case goes, you have to follow their tariff guidelines. But often, what happens is the lawyers end up working more hours than are allotted in the tariff, he says.
“That’s more or less expected, but lately they’ve been cutting more and more of our time off the accounts when we submit the bills,” says Hicks.
“If you’re going to plead somebody guilty on an indictable matter, it’s a block fee. Guaranteed money,” says Hicks. “It’s $1,200 right there and you don’t have to argue. But if you’re going to do a trial, the time you’re allowed for that trial is simply not sufficient and so you have to go hat in hand and say, ‘I had to do all this extra work,’ and that is when LAO is exercising discretion whether or not they’ll pay you over the minimum you have to do the trial. You have to go begging, and lately they say, “No, forget it.”
For example, Hicks says a recent case handled by another lawyer in the firm had 77.5 hours allotted, but there was actually 157 hours of work performed. “They chopped about 57 of those hours, so while they allowed an extra thirty, they did chop fifty hours which is over a week’s worth of work.” They were hours performed for free because the bills are submitted after the fact and not covered by LAO.
“In short, LAO is not giving the trial lawyer the hours necessary to represent the client,” says Hicks, noting the lawyers do the hours first and then bill legal aid.
He points to a predicament experienced by his partner Colin Adams who was told the Friday prior to a Superior Court jury trial beginning that his request for a budget of 400 hours had been chopped to 225.
“It used to be when you did a prelim you got 100. So, if you had a two-week prelim you had 200 to prep,” says Hicks. “To give Colin 200 hours for the trial is preposterous. It just ignores all the other values in play.
“The administration of justice has a fundamental investment in having persons charged with serious crimes represented by experienced and fully prepared counsel,” says Adams.
“Not only is this the most direct safeguard against bringing that administration into disrepute by way of wrongful convictions but anything less is a false economy. A murder trial often – indeed usually – involves a multi-million dollar cost to the public purse. Inexperienced or unprepared counsel are among the commonest sources of trial delay, mistrials and successful appeals,” says Adams.
Says Adams: “Expecting counsel to work for a budget that would be spurned by a jobbing plumber can have consequences much costlier than leaky drains.”
Hicks says the effect is that half the trial work in that case was done for free.
He notes the end result is encouraging lawyers to do guilty pleas instead of trials. “It is not LAO’s mandate to encourage pleas but the way it is now if you do a trial you’re really at risk for legal aid, but if you do a plea you’re laughing.”
Hicks calls it a “clear violation” of the 2010 Memorandum Of Understanding “in the spirit if not the letter.”
“When you are doing legal aid trials the margins are very tight and to have them clawing back on money on hours in preparation and hours in court is really destructive to the criminal bar,” says Hicks. “It’s going to draw many firms to the wall because they are more likely to do trials than sole practitioners.”
“They are going to destroy our firm,” says Hicks. “You can’t destroy the margins like this; it’s going to be disastrous.”