On June 1st, 2001 senior Toronto lawyers ( Toronto lawyers with ten years or more of experience) made headlines earlier this week when they voted to stop accepting legal aid cases dealing with homicide, gun, or gang related charges in Toronto. It is not the intention of the Toronto criminal defence bar that this decision be permanent. Rather, senior Toronto criminal lawyers are calling this a strike designed to call attention to the government’s serious underfunding of the Legal Aid program.
This controversial decision was not made without hesitation on the part of the defence bar. Rather, it has been about a decade in the making. Over the past ten years, Crown Attorneys have seen a 57 % pay raise while defence lawyers acting through legal aid certificates have experienced only a 15% hourly wage increase over the last five years following more than a fifteen years of cutbacks and wage decreases. Though these wage discrepancies are a factor in the strike, the gross salary received by defence lawyers for taking legal aid cases is only a minor element of the funding problems that have motivated this decision.
One of the greatest misconceptions about the strike is that the motivation behind it is greed on the part of the defence bar. This misconception is fuelled by a misunderstanding of the $77 – $98 hourly rate currently paid by legal aid to defence lawyers. It is understandable that members of the public would consider this to be a very high rate of pay. However, that conclusion is based on confusion about how defence lawyers allocate their hourly rate. Most people only have to deduct taxes from their hourly wage and the rest of the wage is retained for personal expenses. It is only natural to assume that the same goes for a criminal defence lawyer’s hourly wage. However, because of the way the practice of criminal defence is structured, most defence lawyers must use their hourly wage to cover all overhead and office costs. This means that, in addition to taxes, a lawyer must deduct from their hourly wage things such as:
Once these deductions are considered, according to Frank Addario, president of Ontario’s Criminal Lawyers Association, the hourly rate paid by Legal Aid is actually “much closer to minimum wage”. To make matters worse, Legal Aid caps the number of hours a lawyer can bill per case. As a result, for a complex case which requires months of preparation, defence counsel may end up working hundreds of hours at no pay whatsoever. Some lawyers estimate that once these hours are factored in, lawyers often make less than minimum wage when they are working on complex Legal Aid cases.
Not wanting to withdraw their services entirely and leave the Legal Aid Program stranded, senior defence lawyers have chosen to focus the strike on homicide, gun and gang related charges. These tend to be the most complex cases that pass through the criminal justice system. They also tend to be the most glaring examples of how underpaid Legal Aid work can be, as these cases often require that lawyers work far beyond the Legal Aid cap. Moreover, these cases involve the use of expert witnesses, diagrams, models and other tactical aids — all of which must be commissioned and paid for out of the lawyer’s hourly wage. In addition, we hope that focusing on these types of cases will highlight the impact Legal Aid funding has on the quality of our criminal justice system. It has been suggested by many experts that the current inefficiency of our system, especially evident in the Greater Toronto Area, is a result of inexperienced counsel handling complex charges such as homicide, gun charges and gang-related charges. Through no fault of their own, junior lawyers often need more time to prepare for these types of cases and inadvertently cause more delays throughout the trial process. We hope to highlight this problem so that the government will be forced to increase funding and put these cases back in the hands of senior lawyers. Of course, these cases also get the most media attention, so we hope that by focusing the strike on these types of charges, public pressure will compel the government to consider our position and increase funding to Legal Aid.
In the end, it is the public’s best interest that funding to the Legal Aid program is significantly increased as soon as possible. We must have a criminal justice system where it is primarily senior counsels who handle the most serious charges. For one, this will increase the efficiency of the system. Even those facing minor charges will benefit by having their matters dealt with in a more timely fashion than is currently possible. More importantly, individuals charged with serious crimes face significant jail time, and accordingly they should have access to the best lawyers the defence bar can offer.
Prior to the strike, senior defence lawyers were taking on as many serious legal aid cases as possible within the constraints of salary and time. In fact, according to Addario, up until now defence lawyers have been “making the system work through donated services”. However, at the end of the day, like everyone else, there is only so much that lawyers can do for free, and the number of serious Legal Aid cases far outweighs the amount of time that can reasonably be “donated” by senior counsel. In our experience, almost every criminal defence lawyer goes into this profession with a desire to help people regardless of their economic situation. The number of Legal Aid cases accepted by senior counsel is a testament to this fact. However, there is a growing consensus in the profession that, at this point, the best way to help individuals who use the Legal Aid program is to withdraw some of our services temporarily with an aim of improving the system as a whole.
This strike is not only about increasing the hourly wage paid by Legal Aid so that individuals charged with serious offences can benefit from having access to the most experienced counsel possible. This strike also aims to increase overall funding to the Legal Aid System. It is important to remember that the government funds both the Crown Attorney’s Office and Legal Aid Services, yet there is a notable discrepancy as to the resources allocated to each side. For example, because of budget constraints, Legal Aid is only able to pay expert witnesses half of what they are paid by the Crown. As a result, the Crown has broader access to the most knowledgeable experts in any given field. Moreover, defence lawyers must apply to Legal Aid to have each expert approved, whereas the Crown has the resources to call as many expert witnesses as they deem necessary. The hours defence experts are paid are also capped, so that often defence experts, just like defence lawyers, end up working many hours for free in preparation for a trial. The problem surrounding the use of expert witnesses is just one of the many compelling examples which show that increased funding to Legal Aid is needed.
There is already a huge power imbalance between the state and the individual in the context of investigating a crime. Obviously, an accused person does not have access to a fraction of the resources the state may use to investigate a crime and collect evidence. In theory, the presumption of innocence counteracts this imbalance by placing a higher burden of proof on the state. However, the current deficiencies in the Legal Aid System work to carry the power imbalance between the state and the accused into the courtroom. We are left with a court system in which the Crown’s ability to prosecute far surpasses the lower-income accused’s ability to defend him or herself, both in terms of the tactics he or she may make use of (such as the use of expert witnesses) and in terms of the experience of his or her counsel. In Canada we pride ourselves on our universal health care system and yet we ignore the fact that, in many ways, we are operating within a two-tiered justice system where the rich have access to a much stronger and more effective defence than the poor. This means that income is rapidly becoming a silent factor in determining guilt or innocence. As such, defence lawyers across the province have initiated this strike to restore balance to the criminal justice system. The defence bar is disheartened by the growing gap between rich and poor defendants. Up until now, we have worked together, logging countless pro bono hours, to try and narrow that gap. However, the problem is too big for us to solve on our own. Regretfully, we find that the best course of action now is to stand back a little so that Parliament can see how serious the problem has become. Only they have the resources to fill the gap and give all Canadians equal access to justice.