06/19/2019 07:00 EDT

Legal Aid Ontario’s Bail Court Cuts Endanger Constitutional Rights, Expert Warns

Private lawyers will no longer be paid to represent the vast majority of their most impoverished clients during bail hearings.

This story is a part of UNAIDED, a HuffPost Canada series that examines the effects of recent funding cuts to Ontario’s legal aid system and the impacts on the vulnerable people who rely on it to navigate our complicated justice system.

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Legal Aid Ontario’s changes to bail hearings will likely lead to an increase in court delays, and accused languishing in pre-trial custody and making false guilty pleas.

The changes could also violate people’s constitutional rights, one legal expert warns.

The agency announced last week that to make sweeping provincial budget cuts, it will no longer pay private criminal lawyers to represent its incarcerated, impoverished clients in the vast majority of cases. Instead, it will place the responsibility almost entirely on publicly-funded duty counsel, who are already at bail hearings every day to give immediate legal assistance to low-income people. It anticipates $1.9 million in savings.

The issue is not one of competence, as duty counsel across Canada provide excellent service to marginalized people. It is solely a matter of resources.Jillian Rogin, University of Windsor

Lawyers and academics say the “shocking” changes will mean already overburdened duty counsel must juggle a growing number of cases at bail hearings.

A person’s right to bail, unless there’s a “just cause,” is a critical part of an “enlightened criminal justice system,” the Supreme Court wrote in a 2017 ruling.

“It entrenches the effect of the presumption of innocence at the pre-trial stage of the criminal trial process and safeguards the liberty of accused persons,” wrote Justice Richard Wagner.

Jillian Rogin, a University of Windsor law professor and former duty counsel lawyer, told HuffPost the changes to legal aid will be “devastating.”

“It calls into question whether the system is broken, or if it’s working exactly as intended, where people with the (least amount of) money will be hurt and it doesn’t matter that their lives won’t matter,” Rogin said. “What other conclusion can we come to?”

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Jillian Rogin, a University of Windsor law professor and former duty counsel lawyer, said Legal Aid Ontario's changes to bail court will be devastating.

There’s a number of problems with the changes set to take place July 7, said Rogin.

Firstly, when a person is arrested, they have the right to retain counsel of their choice, as enshrined in The Canadian Charter of Rights and Freedoms. That means they should have the right to choose a private or duty counsel lawyer  (rather than be assigned to one) to represent them at a bail hearing, Rogin said. They entrust their lawyer to explain their circumstances, and why they should be allowed out of custody, with a set of conditions, until their charges are dealt with.

And if the accused has a private lawyer who has represented them before, that lawyer may be better equipped to handle their case than duty counsel who they met the same day of the bail hearing, Rogin said. This applies especially to Indigenous clients who may have a history of trauma.

“Think of an Indigenous person. Many might have a lawyer they trust. But now they have to have a duty counsel lawyer, and have to tell them all their history and trauma, and they don’t have a choice in the matter?” Rogin said. “Their constitutional right is at stake here.”

Criminal defence lawyer Ari Goldkind said there’s a reason clients prefer to choose their counsel. Although private lawyers with legal aid clients are paid for just two hours of work for a bail hearing (about $300 total), they often put in additional hours preparing — work that duty counsel simply doesn’t have time to do.

“Any lawyer will tell you, we spend the night before dealing with people’s families, employers, getting proof of work, proof of counselling, this and that,” the Toronto lawyer said. “Then we go to court at 9:30 a.m., but the case isn’t called until 3:30 p.m. We can bill only two measly hours, but to make the fight fair, we swallowed it.”

The second issue is that the charter ensures all people are protected equally under the law, regardless of their ethnicity, religion, age, sex or disability. Indigenous and racialized people are over-represented in the criminal justice system, and disproportionately live in poverty and require legal aid services.

They are the ones who will be most impacted by Legal Aid Ontario’s decision not to pay private lawyers at bail hearings, which will result in further delays in an already clogged system, Rogin said. Meanwhile, those who are able to afford a private lawyer will arguably be better represented.

“The issue is not one of competence, as duty counsel across Canada provide excellent service to marginalized people,” Rogin said. “It is solely a matter of resources.”

Bobby Russon, a criminal defence lawyer based in Windsor, Ont., said bail hearings are where he has his most important contact with vulnerable legal aid clients. “The deck is stacked against them if they can’t get bail,” Russon said. It’s harder for him to speak to his clients if they’re in jail and to prepare for the next stage of the justice system. Also, accused are more likely to plead guilty (even if they’re innocent) so they can get out of jail with time served.

In the middle of an opioid crisis, getting bail is also key to a client’s recovery. “I focus a lot on getting clients suffering from addictions out, so they can get clean and have a dramatically reduced sentence. If they can’t get bail, there’s only so much they can do inside custody.”

Bail hearings are so important to Russon’s work, he said he’ll continue representing his clients pro bono.

“I see no other option when a person is in need,” Russon said.

Another problem with the bail changes is that everyone who is arrested is entitled to be heard in front of a justice of the peace or judge within 24 hours, or if a justice is not available, “as soon as possible,” according to the criminal code.

“Without further resources provided to duty counsel, (the changes) will result in delays,” Rogin said. When she was a duty counsellor in Toronto from 2009 to 2014, she said her days were booked solid. She couldn’t imagine having any other cases added to her plate.

“We ran all day long,” Rogin said. “We couldn’t run any faster.”

Queen’s University sociology Prof. Nicole Myers has observed more than 200 bail hearings and described duty counsel, no matter how knowledgeable and experienced they may be, as “frazzled.” At Ontario’s busiest courthouses, like Old City Hall in Toronto, the publicly-funded lawyers will handle 50 to 60 cases a day. In mid-sized cities like Hamilton and Windsor, there will be about 30.

Ultimately, if cases are delayed, or bail is denied to more people, resulting in “needless” incarceration, it will cost taxpayers, said criminal defence lawyer Adam Weisberg. In 2016, it cost an average of $78,475 house an inmate in a provincial facility, 60 per cent of whom were awaiting trial or sentencing, according to a 2018 federal budget officer report.

Legal Aid Ontario said it has no intention of hiring additional duty counsel to assist those who already handle 80 per cent of cases. The union representing duty counsel said in some courthouses they only took on 50 per cent of cases, passing complex cases onto private lawyers. Now almost all cases will be their responsibility.

“Duty counsel cannot be two places at once,” said Dana Fisher, on behalf of the Society of United Professionals, who is also a duty counsel lawyer at College Park, in a statement. “Taking on a substantial number of complex matters that require a full day of preparation or special accommodation means we can’t do as many routine cases. That could leave people facing charges unjustly locked up for an unreasonable amount of time as they await their turn for bail.”

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Dana Fisher, a legal aid union representative, outside of the Ministry of Attorney General's office in May protesting the cuts to legal aid. She was joined by other Society of United Professionals members, including President Scott Travers (right).

‘There are some benefits’

Legal Aid Ontario said it doesn’t anticipate duty counsel taking on more cases having any negative impact on the justice system.

“I think there are some benefits to duty counsel expanding its role. Duty counsel are experts in the area of bail. We are in court everyday and when a matter comes up, we can address it,” Marcus Pratt, director of policy, said. He added there will no longer be a delay waiting for private lawyers to get to the bail hearing.

Private lawyers will still be compensated for bail hearings if cases go to trial, or for big cases where charges relate to murder, or gang-related activities, he said.

“The changes we introduce have the least impact on clients in custody whose liberty is at risk,” Pratt said.

Legal Aid Ontario is also considering no longer paying private lawyers for work they do above and beyond the tariff amounts set for trials, sentencing hearings and any other steps in the justice system, but it’s first looking to see if there is any other way to find savings, Pratt said.

The Canadian Press
Attorney General Caroline Mulroney, whose ministry made the cuts to Legal Aid Ontario, told reporters earlier this week that it's "essential" that Ontario courts modernize. 

The Ministry of the Attorney General said the change to bail hearings won’t result in any additional delays, and service for clients won’t change. “It’s not a matter of whether the service will be provided, but how the lawyer gets paid,” said spokesperson Brian Gray. “We are pleased to see that Legal Aid Ontario is taking steps to be financially responsible.”

The Ministry said it will not be making any budget cuts impacting crown attorneys, or judges.

At the federal level, Bill C-75 is at the senate with reforms to the Criminal Code aimed at reducing court delays and overrepresentation of Indigenous and vulnerable people. One of the key changes is at bail hearings where justices would be required to consider the situation of accused who are Indigenous — currently done in some cases, but not all.

That means duty counsel will have to do extensive research for legal aid clients to ensure all factors are considered, as required under the law, adding further to their workload.

“A decision by a province or territory with respect to legal aid funding in their jurisdiction would not remove the requirement for the peace officer or justice to consider the circumstances of an Indigenous person for bail-related decisions,” said Department of Justice spokesperson Ian McLeod.

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