The inequities in legal aid pay

Posted on June 7, 2009 in Equality Debates – Opinion/Editorial – The inequities in legal aid pay
June 07, 2009

In pursuit of safer streets, Ontario has increased police resources for special guns and gangs units, dedicated Crown attorneys to handle these cases and built major crimes courts for large, complex trials.

But our justice system has two sides, and those who represent most of the defendants in these cases – government-funded legal aid lawyers – are being left behind.

In the last 20 years, legal aid lawyers have had their pay increased by 15 per cent, compared to an 83 per cent increase for judges and a 57 per cent increase for Crown attorneys over just the last 10 years.

“The system has become unbalanced,” argues Frank Addario, president of the Criminal Lawyers’ Association. The association is leading a legal aid boycott for homicides and guns and gangs offences until legal aid compensation is hiked.

It would be easy, particularly in this economy, to dismiss this as the work of greedy lawyers who feel underpaid at $97 an hour. But at stake is the fundamental equality that our system relies on.

The inequities go beyond just pay for defence lawyers to expert witnesses. When the Crown hires a psychiatrist in a murder case it pays $200. For the defence, legal aid pays $130. How can that be fair?

When the government hires a private lawyer to prosecute a case, it pays $192 an hour; yet the maximum legal aid will pay to defend it is $97 an hour. What justification is there for that difference?

In addition to raising legal aid rates, lawyers want an enhanced rate for complex cases. Right now, the hourly rate is the same whether it is for a simple break and enter or a gang-related homicide.

British Columbia, which generally pays up to $92 an hour for legal aid, has an enhanced rate of $125 for complex criminal cases.

This makes good sense and ought to be considered here. The government has stated that guns and gangs cases are so complex the prosecution side requires additional resources. It only stands to reason that the defence side would need this as well.

While $97 an hour may sound like a lot of money to most of us, the lawyers make a compelling case that half of that money goes to cover office overhead. Furthermore, fixed caps on the number of paid hours, to keep legal aid on budget, mean lawyers end up working hundreds of hours for no pay at all.

Attorney General Chris Bentley says he is “determined to renew legal aid so it is on a strong, sustainable foundation for the future.” What exactly that means, when it will happen, and whether it will include the higher pay lawyers are demanding, he has not said.

Bentley has said that the current state of the economy is not helpful. That is an understatement. But this is hardly a new issue. No fewer than three recent reports have urged changes to legal aid, including raising rates for lawyers so that experienced ones will take complex cases and run them more efficiently.

Lawyers representing the accused in murders and guns and gangs cases represent some of “the least popular people on the planet,” acknowledges Addario. But our justice system requires they get fair representation.

When the lawyers doing the work say this isn’t happening, we should all pay attention, and the government should respond.


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