justiced denied - dylan young - precedent magazine - sept2009

8/6/2019 Justiced Denied - Dylan Young - Precedent Magazine - Sept2009

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PrecedentSeptember 2009

JUSTICE DENIED!"#$%#&'$()*+#$,-$./01 *+#By Dylan Young

Rattlesnake Point is a rich canopy of woodland perched atop 360 feet of blue-grey cliff.Its an uncanny bit of the Niagara Escarpment that towers above the surroundingmeadowland, turning barns, grain silos, and houses into pieces from a model train set.

This is the view from the 3rd floor waiting room of the Milton Courthouse.

Framed by acoustic tile and lino floors, the pairing isnt as unseemly as youd imagine.The landscape sets a measure of calm over the waiting souls, sittingor pacingoutsidethese courts. Criminal cases are heard here and what happens just beyond the doubledoors is too often the difference between a life interrupted and a second chance.

A hard look out the window to the left shows what the stakes arethats where theMaplehurst and Vanier Correctional Complex stretches across 40,000 square metres offertile Niagara valley and is skirted by a line of razor wire the length of a Grand Prix

circuit.

Sean Robichaud couldnt tell you how many times hes looked out these windows.Hundreds of times? A thousand? Today is the first time he can recall noticing the strikingpanorama beyond the super-prison. As a criminal defence lawyer and sole practitioner,taking time to look at the scenery is a luxury Robichaud rarely affords himself. Its justone of the things hes sacrificed to the work he loves.


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Robichauds practice is thriving. Five years after being called to the bar, most of his casesare clients who have retained him privatelyand hes busy. But that hasnt always beenthe case. His climb through the ranks is the result of years spent in the trenches ofOntarios criminal justice systemseveral of those years, lean ones.

Like most of his peers, Robichaud built his practice by accepting vouchers from legal aidclients. For the aspiring criminal defence lawyer, the shortest distance betweenA (littleexperience and no clients) and B (an earned reputation and a practice to show for it) isalmost always legal aid work. Theyre not the best-paid cases but there are plenty of them,and the work can be very fulfilling. Legal Aid cases are often the most interesting anddeeply gratifying cases to work on, says Robichaud. And it also feels like youre servinga greater good, helping people who would otherwise have no recourse to justice.

The mandate of Legal Aid Ontario to promote access to justice throughout Ontario forlow-income individuals is something lawyers like Robichaud take very seriously. As anecessary check against wrongful conviction and unfair punitive measures, a strong legal

aid system is central to our most cherished ideas of justice.Despite the success of his practice, Robichaud has never stopped taking these sorts ofcases. That is, until the boycott.

On June 1st, 2009, three hundred of Torontos criminal lawyers (Robichaud included)stopped taking legal aid certificates for homicide, guns and gang cases. That number hasballooned over the summer to include nearly half of all criminal lawyers practicing in theprovince. The tactic has also drawn support from several associations and a coalition ofover 40 law professors.

The move was not taken lightly. Many lawyers consider legal aid cases a vocational duty, a

necessary underpinning to a functioning social justice system. But over the last 15 years,that duty has become an untenable burden.

In April 2009, Frank Addario, President of the Criminal Lawyers Association, sent aletter to Chris Bentley, the Attorney General of Ontario. In it, he laid out the concerns ofthe CLA membership and the issues that had been plaguing the provinces legal aidsystem for over a decadeissues that would eventually precipitate the boycott.

The letter maintained that the tariff paid to lawyers taking legal aid cases wascatastrophically low and that billing restrictions often made it difficult to give clients aquality defence without going out of pocket.

It went on to compare increases to the salaries of judges and Crown attorneys (83% and57% respectively between 1997 and 2007) to that of the Legal Aid tariff (only 15% since1987). Every one of these assertions was supported by three reports commissioned by theMinistry of the Attorney General itself.

The Trebilcock, Code and Lesage, and Goudge reports all highlighted the tenuous state ofthe legal aid system and the threat to a fair execution of justice. The CLA, far from


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making a money grab, is only asking that the tariff be increased from its current rate($77.56-$96.95) to that minimally recommended by Trebilcock ($105-$140)a rate thatstill leaves much of the burden on the defence lawyer. Addario summed up the problemthus. The legal aid program has only been able to operate for the last two decadesthrough the donated services of defence counsel.

Robichaud agrees. If this system seems to be working reasonably well, its largely becauselawyers are taking cases out of the goodness of their hearts.

I cant be too specific because of privilege, he adds. But as a hypothetical, lets say Ihave a case of a man who started firing a gun into a public place. I have to review all thedisclosure, meet with my client several times, go to court appearances, meet with thefamilies and the Crown, review maybe 20 officers notes, and watch 27 DVDs of CCTVfootageall before I even go to trial. If its a Legal Aid case, Im allotted 16 hours forpreparation. The actual work would take two, three, maybe even four times as long.

This is big part of the problem. The types of cases being boycotted are those specificallycovered by a specially qualified set of lawyers. For one of these lawyers to take on acomplex serious crimes case and dedicate not only their own time but also the time ofarticling students, clerks and junior counsel for a rate of $96.95 an hour is simply not afeasible way to run a business.

As a result, Trebilcock noted that fewer lawyers are willing to do legal aid work and thatthe imbalance in pay between Crown counsel and legal aid criminal defence lawyers, aswell as the financial investments that have been made in the police and judges, raisesconcerns about the perception of fairness in the justice system.

The Attorney General of Ontario, himself a criminal defence lawyer by vocation,acknowledges that the legal aid system has its share of problems. But to be clear, I believethe tactics [of the boycott] are actually hindering the objective we all shareastrengthened legal aid system, says Bentley. And while he concedes that the 15%increases to the system do not fully address the issues arising from the 14 years of cutsand freezes preceding them, it does show a lot of good faith and determination.

Addario doesnt see what else the CLA could have done. In the 16 months leading up tothe letter, he met with the Attorney General several times to discuss reforms to the legalaid systemones designed to bring back senior lawyers and provide better prospects foryoung lawyers joining the criminal bar.

Not one of the recommended measures has been adopted.

Even the systems most obvious inequalitiessuch as the fact that the Ministry authorizesthe Crown to pay more for expert witnesses than it does Legal Aid Ontarioremainunaddressed.

Patrice Band, a former Assistant Crown Attorney who now runs a successful criminaldefence practice, acknowledges the disparity of advantages between the Crown and those


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working for the LAO. When I worked for the Crown, I had nearly limitless access toresources, Band explains. If I was trying an important case, there was junior counsel,the police were represented, there were people to prepare motions, investigators and asmany expert witnesses as I needed.

Then Id look across the aisle and see a defence lawyer working a case alone.Band says that Crowns are aware of some of the constraints defence lawyers deal with butit was only in becoming a defence lawyer himself that he experienced the fullness of theinequality.

Im dealing with my second gang case and the disclosure alone is extremelyvoluminous, he says. There are months of wiretaps to review, lengthy affidavitsI justreceived 1600 pages of new material. The caps just dont account for that.

Band has no regrets about becoming a defence lawyer. I understand the role of theCrown and the police but the victoriesso to speakas defence counsel are just more

satisfying than the convictions as a Crown, he says. But he also admits that he probablywouldnt have lasted if hed ventured out as a defence lawyer from the outset.

As bad as the situation is for experienced lawyers, the situation for new lawyers is evenworse. The opportunities to article under senior defence lawyers are very limited. Icannot recommend that a young lawyer join the criminal bar at this point unless they canfind a salaried job, Addario advises solemnly. The economics for a sole practitioneropening a fresh practice are not there.

This hasnt stopped young lawyers exploring exactly that option. Like many of their peers,Graeme Hamilton and Ha Luu are attracted to defence work because they have a passion

for it. Even so, with significant student loans to pay back and the unsound economicrealities of defence work to contend with, these promising young prospects face a harderdecision than either expected.

Hamilton will be completing graduate law studies at Harvard in the fall but he has alreadyqualified with the LAO to handle lower tier criminal cases. Hes spent time shadowingRobichaud, picking up as much as he can about defence workand even securing theprospect of occasional agency work from him. But after articling with Torys, Hamiltonalso has leanings towards corporate law. Under optimal circumstances, it would be anevenly balanced decision but if his time with Robichaud has taught him anything, its thatthe circumstances will be far from optimal.

The question is, how do you navigate through the system in a way where you can surviveas a lawyer anddo well in representing your clients? Hamilton asks. Right now, I cantsee how to do that. If it comes to a choice between criminal defence, corporate law or anacademic route, the financial realities make one significantly less viable than the othertwo.


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Ha Luu has a similar story. Despite a rewarding stint articling with the Barrie Crown,shes felt compelled to explore her options in defence work. Still, though she has a strongbelief in defence worklike Patrice Bandshe cant see how to reconcile the hardships ofthat course so early in her career. With the Crown, you don't have to go out and getclients, you don't have to bill hours. It's a salaried position, Luu says. And as a woman,

theres always the issue of wanting to start a family at some point. Theres no provisionfor maternity leave as a sole practitioner.

Robichaud has tried to help both Hamilton and Luu with their efforts but he has to admitthat the situation is depressing. Here you have two extremely well-qualified younglawyers, both of whom have a passion for defending people, and yet they are being drivenaway from the work by the way the system is set up, he says. If the system cant supportthe people working within it, then the system must be broken. But thats just notsomething the province is willing to concede to yet. And if they cant do that, were still along way from solving the problem.

Things are moving slowly. The effects of the boycott are a long way from beingunderstood. Both the Ministry of the Attorney General and the CLA are unableorunwillingto be definitive about the real world ramifications of these tactics.

For now, the standoff continues.

Back at the Milton Courthouse, Robichaud has secured the conditional discharge of ayoung man accused of mischief and theft under. Its not a legal aid case but if it hadbeen, most of his workthe two half hours of travel time, the time spent with the Crownto arrive at a fair sentencing recommendation, the cost of having an agent cover a matterat another courthouse while he waited four hours for the case to be calledwould nothave been billable.

Looking out at the Escarpment, Robichaud muses. You know, we get things wrong allthe time. The system only works if we accept that and make all the parts of it strongenough to keep all the other parts in check. Thats the only way it works as a whole.

Otherwise, it just topples over.

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justiced denied - dylan young - precedent magazine - sept2009

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