Backgrounder

Ministry of the Attorney General – Legal Aid Ontario Protocol for Management of Court-Ordered Publicly-Funded Counsel

December 12, 2007

The Ministry of the Attorney General (the “Ministry”) and Legal Aid Ontario have a shared duty to promote the public interest through improving the effectiveness of the administration of justice, and ensuring public funds are spent appropriately and prudently. The following principles will help the Ministry and Legal Aid Ontario achieve that shared duty. They are, as always, subject to an order made by a Court.

Principles

1. The Ministry is responsible for the Crown prosecution service and also responsible to the public for funds expended by the Ministry and by Legal Aid Ontario. The Crown prosecution service should act as prosecutor and should not be involved with issues related to the assessment of the accused's financial circumstances performed by Legal Aid Ontario or with payment of accounts by the Ministry. The prosecution service has an important role providing information to Legal Aid Ontario regarding the status and conduct of the proceeding. The Ministry must, however, be able to discharge its role regarding the expenditure of public funds, including necessary financial oversight.
2. The Legal Aid Services Act, 1998 mandates Legal Aid Ontario to provide legal aid services to low-income Ontarians through assessment and payment of public funds in criminal and civil proceedings.
3. In the rare circumstances of Court-ordered public funding (including Rowbotham or Fisher orders), there should be a consistent approach to ensure that an accused whose liberty is at stake receives support consistent with Legal Aid Ontario’s prescribed mandate to fund a “reasonable applicant of modest means.”
4. Publicly-funded defence counsel should be paid at the same rate regardless of the source of funding and shall be subject to the required oversight to ensure that public funds are spent appropriately and prudently.
5. The Ministry and Legal Aid Ontario will jointly appear before the Court on public funding applications. The Ministry and Legal Aid Ontario recognize that there may be some situations where they may agree that joint appearance is not necessary.
6. Where the Court determines that an order should be made, the Ministry and Legal Aid Ontario will, wherever possible, present a joint draft order that will include the following:
   • The Ministry would fund the defence;
   • Legal Aid Ontario would manage the case in accordance with legal aid billing and payment rules and processes;
   • Payment would usually depend on Legal Aid Ontario’s assessment of the account according to its rules. However, the Ministry may require that an independent third-party with expertise in criminal proceedings review, monitor and assess invoices on an ongoing basis and/or at the conclusion of the proceedings;
   • Where an account is not paid in full, counsel will have access to the review process available through Legal Aid Ontario.
7. The Ministry and Legal Aid Ontario will appear jointly, whenever possible, to seek directions from the Court on any necessary variations to, or compliance issues with, public funding orders made by the Court.
8. The Ministry and Legal Aid Ontario will work together within their respective authority to recover any costs paid on behalf of an accused.
9. The Ministry and Legal Aid Ontario are committed to ongoing monitoring, review and improvement of this protocol and related policies and procedures.
10. The Ministry and Legal Aid Ontario will consult with the Bar as part of their continuing work to strengthen accountability for, and oversight of, public funds.

Contacts

Sheamus Murphy
Minister's Office, 416-326-1785

Brendan Crawley
Communications Branch, 416-326-2210

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