Justice for all? // Editor’s note

Low legal aid rates threaten to undermine Ontario’s justice system. But a boycott only succeeds in hurting the most vulnerable

By Melissa Kluger

On Wednesday September 9th, 2009

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Precedent Editor/Publisher Melissa KlugerOn August 6, Donald Marshall died at the age of 55. I find the untimely death of a man who spent 11 years in prison for a murder he did not commit especially sad. It’s as though his life was cut short two times. A 1990 Royal Commission report concluded that Donald Marshall was let down by the Nova Scotia justice system at every turn. Police failed him. The Crown failed him. The court failed him. Even his own counsel failed him.

Our criminal justice system only works if everyone who travels through it receives fair treatment under the law — no matter what they earn, where they’re from or the crime they’re accused of. This is a hot topic now in Ontario as more and more lawyers refuse to accept legal aid certificates for homicide, and guns and gang cases. Led by the Criminal Lawyers Association (CLA), defence counsel are boycotting these complex cases in an effort to pressure the Ontario government into increasing the notoriously low hourly rate it pays for legal aid work.

In our feature story “Justice Denied” (p 22) we meet Sean Robichaud, a criminal lawyer participating in the boycott. Robichaud is a passionate advocate for legal aid. He knows that this kind of work is essential to a criminal justice system that actually seeks and achieves justice. The death of Donald Marshall reminded me of this. It’s not enough that every accused be represented by counsel. Each accused person must be represented by capable counsel with enough know-how to ensure a fair trial.

So it’s no wonder the CLA is at wit’s end. It’s long past time for legal aid to pay enough to attract experienced senior lawyers. It must also compensate junior lawyers well enough that they can take the time and care required to focus on their cases, rather than piling up an unmanageable workload trying to earn a living. I understand why the CLA has resorted to drastic measures.

Still, the CLA boycott is a poor tactic and one that will ultimately prove ineffective. It hurts the very people the association claims to so vigorously represent. These are poor, powerless individuals accused of the most heinous of crimes and — as defence counsel so often remind us — they are presumed innocent. Meanwhile, the boycott is going largely unnoticed by the public at large.

At the time of writing this editorial, the boycott was well into its third month with no sign of the Ontario government giving the defence bar a raise. Yet, homicide, and guns and gangs cases are still entering the legal aid system and counsel who are not participating in the boycott are taking the cases.

I don’t know what the solution to this standoff is. But I hope that government and the criminal bar resolve this impasse quickly — so that defence counsel can return to the very important work of representing the people who need them most.