Legal Aid Ontario has announced it’s hiring senior staff lawyers starting this month.
LAO characterizes this new development as a “service enhancement.” Its intention is to hire 10 senior lawyers commencing in January.
Presently, duty counsel typically serve the indigent with bail hearings, remands, diversion, and guilty pleas. These new staff lawyers will fulfil a different role: mentoring, conducting criminal trials, and representing LAO’s interests in court. A big focus will be on assisting vulnerable and hard-to-serve clients.
Of course, the private bar views these new staff lawyers as public defenders. But as there will be only one in each region and two in Toronto, they’ll only be able to serve a limited number of clients.
One of the new staff lawyers’ roles will be to represent LAO’s interests in
Rowbotham applications in which the private bar is bringing payment applications before the trial courts and on occasions when LAO becomes a party to a proceeding or subpoenas are served on its employees.
These staff lawyers will also represent complainants and witnesses in
O’Connor applications in which defence lawyers are seeking access to third-party records. There’s sometimes difficulty in finding defence counsel to represent complainants.
LAO is filling the first senior staff counsel positions in Newmarket, Barrie, London, and Hamilton, Ont.
In addressing defence counsel in Ottawa recently, David McKillop, vice president of policy, research, and external relations at LAO, advised that the private bar would continue to be the foundation of the delivery of services. However, in some jurisdictions there have been uptake issues with cases involving aboriginal clients, youth, and complainants. In addition, there’s a great deal of mental-health work in Newmarket and Barrie. In a consultation with east region lawyers, Nye Thomas, director general of policy and strategic research at LAO, said the organization is considering having some lawyers on retainer to deal with such clients and noted that up to 50 per cent of certificates involve clients with mental-health or addiction issues.
McKillop advised that the anticipated budget for hiring these lawyers is $1.2 million annually and that the salaries of those with roughly 10 years of experience would be $120,000 a year. The money will come out of LAO’s operational fund rather than from certificates. LAO doesn’t plan to rent space or hire staff for them. Instead, it would fit them into its limited space at Ontario courthouses.
Staff lawyers, McKillop indicated, will be able to take some matters to trial where LAO isn’t issuing certificates. For example, LAO doesn’t issue certificates to those not facing incarceration, but the staff lawyer could take on cases where the clients might lose their livelihoods or suffer severe immigration consequences.
Naturally, the private bar would be happy to have those matters on a certificate basis. Defence counsel are already doing some of that work on a
pro bono basis or on very modest retainers. Presently, the biggest impediment to the issuance of certificates in criminal and family law cases in Ontario is the financial means test. Dollar for dollar, the financial criteria has remained the same since 1995. If the government adjusted the criteria for inflation, far more Ontarians would have counsel in the family and criminal courts.
McKillop said LAO would advertise the 10 positions internally first and noted that while some of the lawyers might not have that much experience, they would get training. He emphasized that these aren’t entry-level positions.
Given the limited nature of this new public defender effort, it appears that defence lawyers will wait and see if it has any impact on their practices. I just attended the six-minute criminal court judge program offered by the Law Society of Upper Canada where there was talk of many more
Rowbotham applications than we’ve been seeing. If that’s the case, the new counsel may be very busy responding to those applications.
Rosalind Conway is a certified specialist in criminal litigation. She can be reached at [email protected].
