How did we get to the point where the criminal defence bar is on strike?
Defence lawyers can’t afford to take cases at legal aid rates, they say, explaining why they have withdrawn their services.
It’s a classic collective bargaining situation, and that means legal aid has come a long way in 60 years.
Legal aid started off strictly as charity.
For a long time, lawyers, who were generally well-paid, could afford to donate their skills now and then, which they often did. Judges who saw a defendant in need of counsel would put in a word to a lawyer they respected, and the deal was done. Pro bono was the heart of the original, informal legal aid regime.
That system proved insufficient to a growing, more urbanized Ontario. In 1950, the Law Society of Upper Canada established a central referral service for every county and district in the province through which the needy could find counsel.
LSUC’s 1950 system still depended on charity. Many young lawyers found legal aid a useful practice builder, believing that once they started to win some cases, paying clients would soon find their way to their door. But they were entirely unpaid. Legal aid still depended on the spirit of volunteerism and enthusiasm of the bar.
Paid legal aid came along in 1967. It was the era of big social programs: employment insurance, social security, pension reform, public health care, and legal aid. Finally, the government would ante up for legal counsel.
In 1967, however, the bar was as resistant to a government takeover as the doctors were. In their case, however, the lawyers were more successful. The government put up the money, but the LSUC retained control of the legal aid program. There would be no government-run legal aid system and no public defenders.
The quid pro quo for lawyers’ continuing control over the system was the ongoing charitable element. LSUC’s legal aid plan never paid full fees to lawyers who worked under it. Eventually, the law society even imposed a levy on lawyers to help cover the cost. Almost uniquely among public social programs, the service providers themselves continued to cover part of the cost of legal aid.
“You cannot sell legal aid by the yard,” said former treasurer John Arnup when the paid program began. Legal aid had to be open-ended, he said, driven by demand for counsel and not by what governments were willing to pay.
But open-ended budgets provoked 30 years of push and pull between governments that fought to contain expenditures and a lawyer-run plan tasked with providing as much legal aid as necessary. LSUC-run legal aid went through several funding crises, the most serious in 1994. When a four-year compromise deal ran out, the government established Legal Aid Ontario.
As long as lawyers ran legal aid, those who complained about the fees found themselves fighting their colleagues while governments watched. The creation of LAO a decade ago finally cut out the intermediary. Legal aid lawyers had a clear target.
LAO is independent but it is publicly funded and publicly accountable. To a lot of lawyers, it is either the government or close enough. All they needed was a way to organize the bar.
Enter the Criminal Lawyers’ Association, founded by a group of leading counsel in 1971. Legal aid issues had always concerned the CLA, which gradually rallied much of the defence bar behind it. Finally, in mid-2009, it launched an informal kind of collective bargaining. It successfully urged most lawyers to boycott legal aid certificates for trials and appeals in certain major crimes. All it wanted was more money.
Legal aid has moved forward through a series of compromises, and it’s still hard to imagine formal labour-management bargaining between lawyers and LAO. But the history of legal aid seems to have been trending that way for half a century now. Here it comes.
Christopher Moore’s most recent book is McCarthy Tétrault: Building Canada’s Premier Law Firm. His web site is www.christophermoore.ca.
For more on the legal aide boycott, see
'Boycott expansion raises alarm.'
