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Upside to Legal Aid Ontario changes | Sam Goldstein

Thursday, July 11, 2019 @ 11:52 AM | By Sam Goldstein

Last Updated: Monday, July 15, 2019 @ 1:06 PM


Sam Goldstein %>
Sam Goldstein
Changes to how Legal Aid Ontario (LAO) pays for bail hearings is an improvement to access to justice in Ontario.

It’s been reported that on July 7, 2019, LAO stopped paying private lawyers $300 to do bail hearings. An Ottawa defence lawyer Ewan Lyttle told Global News that the cuts will have a “catastrophic effect” on the bail system and suggested, that because the cuts will result in people spending longer in jail waiting for a bail hearing, “people will be more inclined to plead guilty.”

Ari Goldkind, another Toronto criminal lawyer, wrote in the Toronto Star, that there will be “massively higher rates of guilty pleas” because of an expected backlog in bail court to happen.

Daniel Brown, also a Toronto criminal lawyer, predicted graver consequences, telling Global News that changes to legal aid may result in some cases being “tossed out of court” if court delays drag on too long.

In every criminal courthouse in Toronto there is a duty counsel office staffed with highly trained professional criminal lawyers, hired by LAO, to conduct bail hearings for people: (a) who qualify for legal aid and want duty counsel to do their bail hearing; (b) who qualify for legal aid but do not want to wait for their private lawyer; or (c) people who can afford to retain a private lawyer but who just want duty counsel to do their bail hearing.

The main reason why many people opt for duty counsel to do their bail hearing is because private counsel is not always immediately available. This is an overlooked fact by those who think the LAO decision to stop paying for bail hearings will mean more people waiting in jail longer for a bail hearing because duty counsel does not have enough lawyers to take care of everyone.

According to a 2013 University of Toronto doctoral thesis, the most significant cause of backlog in bail courts is defence lawyers adjourning their client’s bail hearing to a date they are available. From my observation, people in jail know this and in my opinion, that is why they opt for duty counsel.

The assumption, in any case, that people will be languishing in jail because, without private counsel doing some of the bail hearings, the volume of people waiting for a bail court will be too much for duty counsel to take care of, is questionable to begin with.

The reality is that few if any members of the private bar do bail hearings anymore on legal aid because the $300 LAO pays is not worth it.

You see few, if any, private lawyers in bail court on legal aid. Duty counsel staff lawyers know this too and they have been dealing with the volume of work just fine for some time and there has been no significant increase in the rates of guilty pleas or cases being thrown out because it took to long for a person to have a bail hearing.

LAO no longer paying private lawyers to do bail hearings is an acknowledgement of how few private lawyers are doing them. If no longer paying private lawyers to do bail hearings does result in “catastrophic effects,” then the solution is hiring more duty counsel, not paying private lawyers more money.

The real issue is that $300 is not enough to pay a private lawyer for a bail hearing so private lawyers were charging clients above what they received from LAO. The problem was that LAO required lawyers to report this, so lawyers stopped doing bail hearings because they knew LAO would claw back the extra money from what LAO paid them for the case or LAO might disqualify a client because LAO would determine the client had the money to pay for a private lawyer.

The reporting practice was unfair to private lawyers because bail hearings can take all day to do and to those clients who had some money to pay a private lawyer for a bail hearing but not enough to pay a private lawyer for a lengthy trial.

LAO, fortunately, changed this practice. LAO now allows private lawyers to charge up to $1,000 for a bail hearing. That amount can increase depending upon the bail hearing’s complexity and length. The money will not be clawed back, nor will a client be disqualified from legal aid for paying extra.  

This is a significant improvement in how LAO pays for bail hearings that will alleviate the workload on duty counsel, potentially decrease the time it takes for a client to get a bail hearing and allow private lawyers to take home more money without significant costs to the public purse.

Sam Goldstein is a Toronto criminal lawyer. You can e-mail him at sam@samgoldstein.ca and follow him @Willweargloves.

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