Chapter 5 - Legal Aid

A. Introduction

Most long complex criminal trials in Ontario will be publicly funded through Legal Aid Ontario (LAO). There are certainly exceptions, where well-known long complex trials have been privately funded. However, it can be safely concluded, based on LAO records, that a substantial majority of these cases are granted certificates and are then subject to LAO's statutory mandate and its regulatory controls.

There are two ways in which LAO may have contributed to the phenomenon of overly long criminal trials in Ontario, based on the work carried out by our Review. First, the steady erosion of the LAO tariff over the past 20 years, at the same time as trials were inherently becoming longer and more complex, has led to the flight of many leading members of the bar from these cases. Second, LAO has not used its statutory powers to the extent that it could to regulate the quality, efficiency and effectiveness of the work being performed by counsel on these cases. These two issues are closely related, as we will explain below.

Historically, and generally speaking, the most serious criminal cases were conducted by the leading members of the defence bar. It is a truism that leading members of the bar are known for their good judgment and forensic skills and so they could generally be counted on to focus on the real issues in a case and to conduct the trial in a responsible and efficient manner. In this ideal version of the adversary system, there is little need for oversight of counsel's conduct of the case.

Today, many leading members of the defence bar do not take on long complex criminal trials. There are, of course, exceptions but, generally, we are told that conducting a six month or longer trial at the Legal Aid tariff is simply not feasible for lawyers with mature practices and substantial overhead costs. It is one thing for a leading lawyer to defend a single accused in a one or two week Legal Aid murder trial, as was common in the past, but quite another thing to devote half a year or more to a gang-related mega-trial with six co-accused who are all represented by other counsel, especially where the other counsel do not share your views as to how best to conduct the defence. The Legal Aid tariff remains set at levels that were fixed in the late 1980's, subject to increases significantly below the rate of inflation totalling about 15%, that were granted in the last few years. In these circumstances, the latter kind of trial would represent a significant economic sacrifice for leading members of the bar whose normal fees to private clients are at rates several times higher than the Legal Aid rate.

As a result, we appear to be trapped in a vicious circle: the longer criminal trials become, the less likely it is that leading counsel will agree to conduct them on a Legal Aid certificate; and yet having leading counsel conduct the defence in these cases is one of the solutions to the overly long trial, as it is these counsel who are most likely to conduct the trial in an efficient and focused manner.

Of course, there are many excellent counsel who are still willing to take on the defence of these cases from time to time. These lawyers require little oversight and direction concerning the appropriate expenditure of public monies. But the modern reality is that there are also inexperienced lawyers, or experienced lawyers who lack good judgment, conducting these cases. These lawyers do require advice, supervision and direction as to how to responsibly and effectively conduct the defence so that trials are not unduly protracted. Furthermore, given that LAO is responsible for the expenditure of large amounts of public monies on these cases, it is important that LAO have appropriate processes in place to ensure that the money is being well spent. In other words, completely different management processes may be appropriate depending on the skills and judgment of the lawyer who is conducting the defence.

Our four case studies illustrate this point as in some of the cases excellent counsel conducted the defence whereas in other cases the accused was represented by counsel who exercised poor judgment. In some cases, with multiple co-accused, there was a mixture of both kinds of counsel. Similar variations existed on the Crown side of these cases, a topic we will address in Chapter 6.

The data provided to us by LAO paints an unsettling picture as to which lawyers are taking on major cases in Ontario. LAO administers a Big Case Management (BCM) program for particularly large cases that are likely to exceed the cost of an average certificate. In general terms, the BCM regime covers cases that cost LAO between $20,000 and $75,000. In all these cases the lawyer must submit a budget and is subject to a greater degree of oversight than in the case of an ordinary certificate. Cases costing over $75,000 are also subject to the BCM regime but have a further degree of oversight involving advice from a panel of experts known as the Exceptions Committee. About 25% of the LAO criminal budget is spent on BCM cases. The most recent data, collected by LAO since January 2005, indicates that 697 BCM certificates were issued to lawyers with less than four years experience, 675 BCM certificates were issued to lawyers with between four and 10 years experience and 1134 BCM certificates were issued to lawyers with over 10 years experience. In other words, approximately 55% of these large cases are being conducted by lawyers with less than 10 years experience and, even more significantly, approximately 28% are being conducted by lawyers with less than four years experience.

At the same time as these junior lawyers are taking on major cases, LAO data shows that senior lawyers (those with more than 10 years experience) are increasingly leaving Legal Aid. Between 1999 and 2007 there was a 15% decline in the number of senior lawyers who took on any Legal Aid cases.

B. Available Models for Reform

We believe that there are two distinctly different ways of approaching this problem of inexperienced lawyers, or experienced lawyers with poor judgment, conducting long complex Legal Aid trials and leading counsel generally declining them.

The first approach is to develop positive means and incentives to ensure that highly qualified lawyers will take on these long complex cases. This approach involves paying higher fees and restricting eligibility. A short list of highly qualified lawyers could be developed and the tariff could be substantially increased for these lawyers when they agreed to act on a long complex trial. The second approach is to accept that more junior and less qualified lawyers will inevitably gravitate to these cases. Under this latter set of assumptions, it becomes necessary to impose tight management and oversight of counsel's conduct of the defence.

As between these two broad approaches, the participants in our Review strongly favoured the former. Senior members of the judiciary, senior Crown counsel and senior police officials forcefully submitted that it is much better to conduct a long complex trial with one of the leading members of the bar because they will generally focus on the real issues in the case, they will consistently prepare in advance and they will have no reason to unduly prolong the case. We were particularly struck by the position taken by senior police officers in charge of the investigations in these cases. They noted that they pay the price for all the unnecessarily long trials because they become caught in court for months and years instead of being allowed to investigate new cases. Police chiefs told us that they will lose two senior detectives for as long as a year, once a major homicide trial begins.

In short, there is a broad consensus that it is worthwhile to invest in a strong and capable defence. We agree with this view. It makes sense to pay the best lawyers appropriately because the return on the investment is a shorter trial that saves costs in all parts of the justice system. We do not believe that there is a sound fiscal argument for paying the defence at uneconomical rates as it often contributes to overly long trials. A poor quality lawyer being paid inadequately to conduct an unduly long trial does not save money for the justice system.

Not only was there broad support for the first approach to reform in this area - paying higher fees and restricting counsel eligibility - but there were also concerns expressed about the latter approach - placing strict controls and oversight on the conduct of the defence. There is no doubt that the second approach would be a challenge for LAO and would require significant increases in and changes to its administrative capacity. Nevertheless, we believe that improvements can be made in the way that LAO oversees and manages the budget for long complex trials. These improvements cannot be made quickly or on a broad basis, given LAO's current administrative capacity, and so implementation of our recommendations in this second area will have to be slow and incremental.

We intend to make recommendations in relation to both approaches to reform. However, we wish to be clear that the former approach should be the higher priority as it is simpler and can be implemented much more quickly and fully than the reforms we suggest under the latter approach. We also wish to caution that the two approaches may be somewhat inconsistent. If we reform the system in the first way, by paying higher fees to a short list of highly qualified counsel, the need for the latter approach becomes less pressing. Indeed, it could become a disincentive to leading counsel if they knew that their conduct of the defence was to be subject to a complex, bureaucratic system of oversight and prior approvals. The substantial new investment in LAO infrastructure and administrative capacity, under the second approach to reform, will be a major undertaking and the government should only invest in it after making every effort to pursue the first approach. A different and less costly form of oversight would be appropriate under the first approach to reform.

It would be a sad admission of defeat if the government was to acknowledge that it can never succeed in getting the leading counsel in Ontario to return to the practice of an earlier era, where these counsel generally took on the defence of the most serious and complex cases. Accordingly, we turn first to our favoured approach.

C. The First Approach to Reform: Paying Higher Fees to a Short List of Highly Qualified Counsel

Our proposals concerning the first approach are simply an attempt to attract leading members of the bar back into the Legal Aid fold on long complex trials. We propose limiting eligibility for Legal Aid funding on these cases to a short list of highly qualified lawyers and we propose paying them enhanced fees so that it is economical for them to take on the defence in such a case.

The background to these proposals requires an understanding of the history of the Legal Aid tariff in Ontario. That history, beginning in 1967, has been succinctly summarized by Professors Zemans and Stribopoulos as follows: 1

Although relatively modest, the compensation provided under OLAP's certificate system was perceived as fair [in the early years of the Legal Aid Plan]. It proved sufficient to attract experienced lawyers to legal aid matters. This was especially true in criminal cases, where some of the province's most experienced and respected criminal lawyers routinely acted in cases funded by legal aid. Although no one realized it at the time, the 1970's and 1980's would come to mark the "Golden Years" for legal aid in the Province of Ontario.

The turning point came with the onset of a recession in the early 1990's. The economic downturn was severe and by the middle of the decade the province was running an $11 billion budget deficit. In 1994, faced with rising legal aid costs, which had more than quadrupled from $75 million to $350 million over the preceding ten years, the provincial government capped its contribution to legal aid. It committed to provide the Law Society of Upper Canada with fixed amounts of funding, on a decreasing basis, for a four-year period. The federal government did the same. This led to severe cutbacks, with OLAP reducing the types of legal matters that it would agree to fund, reducing the number of hours that lawyers would be compensated on certain types of cases and reducing the hourly rate that lawyers could charge for legal aid services. The results were dramatic. The number of legal aid certificates issued [for both criminal and civil cases] was reduced from 231,383 in 1991/1992 to 80,000 in 1996/1997. At the same time, as one would expect given the extent of the cutbacks, there was a drastic increase in the number of "self-represented" accused persons appearing in the province's criminal courts.

Not surprisingly, these changes were extraordinarily unpopular with criminal defence lawyers, most of whom had historically accepted at least some legal aid work. The cutbacks led to a crisis of confidence, with many criminal lawyers deciding to simply stop accepting legal aid. In some jurisdictions these efforts were more organized, with all lawyers in the jurisdiction taking job action and collectively withdrawing their services from legally aided clients.

In some ways, the problems of the long complex criminal trial today are a lingering by-product of the Legal Aid crisis of the 1990's. The tariff simply never recovered and, as a result, the profile of the lawyers conducting these cases has changed.

The latest data indicate that 107,300 Legal Aid certificates were issued in the last fiscal year (2007/08), including about 65,000 criminal certificates. This is less than half the number of certificates issued in 1991/92, as set out above. LAO's total budget for 2008/09 will be approximately $355 million, only slightly above the levels it had reached prior to the crisis in the early and mid-1990's. The federal government funding that was lost in the 1990's has never been restored. Federal contributions now represent about 15% of LAO's total budget. As a result, LAO has become substantially dependent on the provincial government and the Law Foundation for its funding. In fact, provincial government contributions have increased while federal contributions have decreased. The net effect is described in Professor Trebilcock's recent Report: 2

Crucially, on a per capita basis funding for legal aid in Ontario has declined by 9 per cent in real (inflation-adjusted) terms from 1996 to 2006 (from $30.76 to $27.77). In addition...the hourly tariff chargeable under legal aid certificates, has been increased only modestly over the past decade and is now seriously out of line with any relevant market reference points and with cost of living indices over a longer time period. This has led to a significant decline - 16 per cent between 1999-00 and 2006-07 - in the number of lawyers participating in the certificate system, and a staggering 29 per cent fewer family lawyers.

Most importantly, for purposes of the present discussion, the level at which the tariff is presently set does not allow leading lawyers with mature practices to take on the defence of a long complex case. The current tariff rate for such a lawyer, assuming 10 years at the bar, is $97 per hour. 3 Conducting a short one or two day trial or appeal at these rates is manageable but taking on a six month trial would likely result in a loss, or certainly no gain, for most of our leading counsel who carry substantial overhead costs.

Over 20 years ago, in 1987, the tariff for senior lawyers was $84 per hour. The $13 increase over that period of time is approximately 15%. It is substantially less than the rate of inflation over the same period. 4 Professor Trebilcock describes the impact of this erosion of the Legal Aid tariff in the following terms, which we would echo based on what we observed in our consultations: 5

The anger within the private bar at what they regard as grossly inadequate hourly rates for services provided by members of the private bar under certificates issued by LAO was palpable, and the sense of alienation from the legal aid system ubiquitous. They are not only outspoken in exercising voice, but more to the point are voting with their feet in exiting the system in increasing numbers. On the criteria of exit, voice and loyalty, the certificate system is in tenuous condition. The diminishing commitment by the private bar to the provision of legal aid services poses a fundamental challenge to the sustainability of the legal aid system as we have known it. This issue is one that requires urgent and immediate attention.

We note that the palpable "anger within the private bar" described by Professor Trebilcock is not merely a function of the economic sacrifices that Legal Aid work entails. Rather, it is based on a sense of injustice due to the fact that the federal and provincial governments have substantially increased the salaries of judges, Crown prosecutors and police officers during the same period. The defence bar perceives, with some justification, that they have been singled out for inequitable treatment among the various justice system participants.

It is also worth noting that the federal government's now longstanding failure to restore its historic levels of funding to Legal Aid reflects an anomaly in Canadian constitutional arrangements. As set out in Chapter 2, it is the federal government that has been substantially responsible for many of the changes to the criminal justice system that have led directly to increasingly long and complex trials. The enactment of the Charter of Rights and the continuous stream of complex Criminal Code and Evidence Act amendments are all exercises of federal power. It only seems fair that the cost implications of federal initiatives should be the subject of appropriate federal funding. Given that the administration of justice is a provincial head of power, the federal government has been allowed to cause longer and more complex trials without having to pay for the associated increases in costs. Indeed, federal contributions have declined during the same period that costs have increased. If the federal government was to restore its Legal Aid funding to previous levels, our proposals in this section would be much more feasible for the provincial government. 6

We were greatly assisted in our work on this subject by materials provided to us by the Legal Services Society of British Columbia. We also had discussions with officials from that Society and with senior lawyers in that province. The model we propose is substantially based on the one that we understand to be working reasonably well in B.C.

It is our understanding that the ordinary tariff rates in B.C., as in Ontario, have three tiers that are based on experience. The rates for the three tiers in B.C. are $84 per hour for the least experienced, $88 per hour for the middle level of experience and $92 per hour for the most experienced. 7 In other words, the rates are comparable to Ontario's, being slightly higher at the lowest tier, almost the same at the middle tier, and slightly lower at the top tier.

Where the B.C. model differs from Ontario is that it provides a completely separate scale of fees for particularly complex cases, known as "enhanced fee cases". The tariff is $125 per hour for these cases, the eligibility criteria are much stricter and a panel of three senior members of the bar must determine that the case is of sufficient length and complexity that it merits classification as an "enhanced fee case". 8

Finally, there is a further separate scale of fees in B.C. for "exceptional matters". These are cases where either the court has made what is known as a Fisher order or where the federal Department of Justice or provincial Ministry of the Attorney General and/or the Legal Services Society have negotiated a consent Fisher order due to the extraordinary length and complexity of the case. There is a Memorandum of Understanding between the Legal Services Society and the government concerning funding and administration of these matters. 9 The level at which fees are set varies, and it is confidential in each case, but we are advised that the rate is significantly higher than the "enhanced fee case" rate of $125 per hour. We are also advised that the counsel eligible for these "exceptional" fees are a very short list of the most able lawyers. Finally, we are advised that leading members of the bar in B.C. agree to act on these cases.

It can be seen that the B.C. approach is to increase the scale of fees, as the length and complexity of the case increases, but also to restrict eligibility as the scale of fees increases. We believe this to be a common sense approach: the longer and more difficult the case, the more it requires the attention of the most able counsel; at the same time, these counsel should be remunerated at a higher scale of fees, just as they are in the marketplace, to compensate them for leaving their private practices for an extended period of time while still having to cover their overhead and make some profit. The fact that the system appears to be working in B.C., where leading counsel do take on these long complex cases, is the best proof of a well designed system. It may also be worth noting that a number of very significant mega-trials in B.C. have proceeded successfully to a verdict on the merits.

Recommendation 21:

Legal Aid Ontario and the Ministry of the Attorney General should develop a new tariff that provides for "enhanced fees" and for "exceptional fees" as the anticipated length and complexity of the case increases. The eligibility criteria should be progressively more restrictive at each of these higher levels so that only the most able counsel are eligible. A committee of LAO officials, senior lawyers and retired judges should set the lists of eligible counsel, after conducting thorough due diligence. The eligibility factors should include both experience and qualitative criteria such as those set out in Recommendation 25.

D. The Second Approach to Reform: Enhanced Oversight of the Budget for Long Complex Cases

1. The Statutory Scheme

The second set of reforms that we recommend all relate to the need to enhance LAO's regulatory control over the quality, efficiency and effectiveness of the work being performed by counsel on these long complex cases.

The Legal Aid Services Act 1998 established LAO as an arms-length statutory corporation, responsible for providing legal aid services to the public. 10 The predecessor legislation had given these responsibilities to the Law Society of Upper Canada. The first provision of the new statute is critically important, stating the following:

1. The purpose of this Act is to promote access to justice throughout Ontario for low-income individuals by means of,
a) providing consistently high quality legal aid services in a cost-effective and efficient manner to low-income individuals throughout Ontario.

The statute returns to these same themes later on, creating a mandatory duty to "ensure" that such quality of services is being provided:

92.(1) The Corporation shall establish a quality assurance program to ensure that it is providing high quality legal aid services in a cost-effective and efficient manner.

Finally, LAO is given a broad regulation-making power under s.97(1), subject to "the approval of the Lieutenant Governor in Council". The regulations cover, inter alia, "the establishment of panels of lawyers" entitled to receive certificates, "investigating and resolving complaints made against lawyers", "governing the administration, cancellation, amendment and discharge of certificates" and "any matter necessary or advisable to carry out the purposes of this Act." Pursuant to this broad power, Ontario Regulation 106/99 was passed. Sections 31 and 32 of the regulation give the President of LAO power to remove a lawyer from the panel of eligible lawyers where there is "reasonable cause" to believe the lawyer does not "meet applicable standards, including standards under the Corporation's quality assurance program."

The other regulation that is relevant to our Review is Ontario Regulation 107/99, which establishes the "Big Case Management" program. The regulation provides for a "case management meeting" between counsel and the area director in large and costly cases. The purpose of the meeting is to set a budget. Most importantly, for our purposes, are the following two provisions in s.5:

(6) The budget shall,
a) list the steps in the proceeding that a reasonable applicant of modest means would authorize under a private retainer, if advised of the available options, the potential results and the costs involved; and
b) specify an amount of money that represents the anticipated total fees and disbursements for those steps.

(12) The accounts for services provided under a certificate for the proceeding shall be settled in accordance with the Schedules and the budget.

The above statutory framework undoubtedly requires that lawyers working under Legal Aid certificates are expected to provide "high quality", "cost-effective" and "efficient" legal services. Furthermore, LAO is under a mandatory statutory duty to "ensure" that this quality of service is being provided. If lawyers fail to meet "quality assurance standards", their eligibility to be on the panel in future cases can be taken away. Finally, "the budget" for long complex cases must be limited to only "those steps" that a "reasonable" client of "modest means" would authorize under a private retainer and any account submitted must be settled in accordance with "the budget".

We believe that certain long complex trials in Ontario are not being conducted in accordance with this statutory scheme and that LAO is not enforcing it in an effective way. A number of the cases found in the Ontario Court of Appeal's jurisprudence, and amongst our four case studies, were not conducted in a "high quality", "cost effective" or "efficient" manner. There must be consequences when this happens and yet there are none due to certain rigidities in the way that ss.31 and 32 of Ontario Regulation 106/99 are drafted. Furthermore, LAO is not presently applying Ontario Regulation 107/99. The budget is set simply as a global amount for preparation of the case rather than an amount "for those steps" that the "reasonable" client of "modest means" would authorize. In short, there is no line item budgeting, accountability or enforcement.

Accordingly, we believe there is considerable room for improvement in terms of LAO's oversight and management of these long complex cases.

2. The Independence of the Bar

Any efforts to impose greater oversight and management as to the conduct of the defence must be sensitive to the independence of the defence bar. We have already discussed the importance of the independence of the police and the Crown, within their proper spheres, and have asserted that these are constitutional principles. There is no doubt that the same is true of the independence of the defence bar.

Dean Monahan has recently carried out a comprehensive study of this topic. He points out that "the independence of the bar" is a term that is susceptible to two distinct meanings: 11

Although the term "independence of the Bar" is frequently referred to in judicial opinions and legal commentary, its meaning varies with the context in which it appears. In considering the constitutional sources for the concept, it is useful to distinguish between two different senses in which the term "independence of the Bar" is often utilized.

On one narrower interpretation, the "independence of the Bar" is used to refer to the freedom of individual lawyers to give advice to their clients or to act on their clients' behalf in a way counsel believes is justified by the objective situation, rather than having their advice tempered by matters that counsel does not regard as a proper consideration. Thus, this first use of the concept of independence refers to the lawyer's ability to provide effective representation of clients in litigious as well as non-litigious matters without improper external pressure.

It should be recognized that a lawyer's independence can be compromised not only by improper external pressures brought to bear by government or others, but also by a failure of the lawyer to take a sufficiently independent stance in regard to his or her client's own interest.

There is, however a second and somewhat broader sense in which the term "independence of the Bar" is sometimes employed. This broader view refers to the independence of the profession as a whole and its status as a self-governing profession.

It is the first meaning of independence that concerns us in this Review, namely, "the lawyer's ability to provide effective representation of clients...without improper external pressure."

The independence of the bar in this first sense was perhaps best described by Justice McIntyre in Andrews v. Law Society of British Columbia where he stated: 12

It is incontestable that the legal profession plays a very significant - in fact, a fundamentally important - role in the administration of justice, both in the criminal and the civil law...I would observe that in the absence of an independent legal profession, skilled and qualified to play its part in the administration of justice and the judicial process, the whole legal system would be in a parlous state. In the performance of what may be called his private function, that is, in advising on legal matters and in representing clients before the courts and other tribunals, the lawyer is accorded great powers not permitted to other professionals...By any standard, these powers and duties are vital to the maintenance of order in our society and the due administration of the law in the interest of the whole community.

Justice McIntyre stated that independence is intended to ensure that counsel is "skilled and qualified to play its part". More recently, Justice Binnie elaborated on the same point in R. v. Neal: 13

Unless a litigant is assured of the undivided loyalty of the lawyer, neither the public nor the litigant will have confidence that the legal system, which may appear to them to be a hostile and hideously complicated environment, is a reliable and trustworthy means of resolving their disputes and controversies...The value of an independent bar is diminished unless the lawyer is free from conflicting interests. Loyalty, in that sense, promotes effective representation, on which the problem-solving capability of an adversarial system rests.

Thus skill, loyalty, absence of conflicting interests and effectiveness are all hallmarks of the independent lawyer. Indeed, the requirement that counsel provide effective assistance has itself become a constitutional principle because it is so important to the correct working of the justice system. As Doherty J.A. put it in R. v. Joanisse, 14 in terms that were later adopted by the Supreme Court of Canada in R. v. B. (G.D.): 15

Effective representation by counsel makes the product of the adversarial process more reliable by providing an accused with the assistance of a professional trained in the skills needed during the combat of trial. The skilled advocate can test the case advanced by the prosecution, as well as marshal and advance the case on behalf of the defence...Effective assistance by counsel also enhances the adjudicative fairness of the process in that it provides to an accused a champion who has the same skills as the prosecutor and who can use those skills to ensure that the accused receives the full benefit of the panoply of procedural protections available to an accused.

Where counsel fails to provide effective representation, the fairness of the trial, measured both by reference to the reliability of the verdict and the adjudicative fairness of the process used to arrive at the verdict, suffers. In some cases the result will be a miscarriage of justice.

Our proposals in this section, to improve LAO's oversight and management of the conduct of the defence, should all be tested against these constitutional precepts. The objective must be to enhance counsel's skill, loyalty and effectiveness, and not to limit it. Otherwise, the administration of justice will suffer and the risk of miscarriages of justice will increase. We believe our proposals are all premised on the importance of an independent bar and the need to encourage and protect its crucial role in the justice system

The reforms we propose in this section fall into two broad areas: first, improving front end management of the conduct of the defence; second, improving post trial responses where the case has been conducted in a manner that appears to violate the Legal Aid Services Act.

3. Improving Front End Management and Oversight of the Conduct of the Defence

In terms of front end management, we have already set out Ontario Regulation 107/99 above. LAO appears to concede, and we agree, that the regulation enacts a power to identify "the steps in the proceeding that a reasonable applicant of modest means would authorize under a private retainer", to limit the budget to only "those steps" and to settle the account in accordance with that pre-approved budget.

However, LAO has never applied the regulation in this manner because, we are advised, it lacks the legal or administrative capacity to support the kind of decision making that would be required to fulfil this active case management role. There are approximately 1,500 BCM cases ongoing in Ontario in any given year (generally, cases with budgets over $20,000) and LAO simply does not have the staff, time or resources to actively oversee the merits of counsel's decision making in all these cases. Accordingly, LAO sets a global budget for preparation of the case but does not identify the issues that have sufficient merit to justify public funding nor limit funding to only those issues. Once the case proceeds to court, counsel will be paid for their time in court, and for four hours of preparation for each day in court, regardless of the issue being litigated. In essence, LAO does not stand in the shoes of the "reasonable" client of "modest means" but relies on counsel to make reasonable decisions.

Cases with budgets over $75,000 are subjected to somewhat greater control as LAO utilizes the expertise of an "Exceptions Committee" to advise as to the appropriate budget for the case. This committee is made up of leading counsel and they provide LAO with the best advice they can in the circumstances as to what issues ought reasonably to be pursued by the defence. However, the committee lacks the time and resources to carry out its duties in a more effective way. The members are volunteers who try to prepare for the committee's meetings in the evenings, often after they have spent the day in court, and without having read as much about the case as would be necessary to make fully informed and binding decisions. The committee advises LAO officials as to what pre-trial motions and what issues appear to have merit and ought to be pursued. In some cases, an LAO official will also attend significant judicial pre-trials to gather more information about the proposed conduct of the defence. Senior members of the judiciary advised us that this practice is very useful as counsel will often raise funding issues at the pre-trial. Having an LAO official present allows the pre-trial judge to obtain an immediate answer to any questions, directly from an LAO official. 16

The budget is then set, but once again, as with ordinary BCM cases, LAO does not limit counsel's account to only those matters that the Exceptions Committee believes have merit. Counsel can use their global preparation budget in any manner they see fit and they can argue any motion they like in court and they will be paid for it, regardless of the views of the Exception Committee.

We were advised that experienced lawyers on the Exceptions Committee have, on occasion, taken the view that as many as half of counsel's proposed motions are without merit and, therefore, ought not to be funded. LAO will use this advice when setting the global preparation budget but will, nevertheless, pay counsel their full fees if they proceed to argue the meritless motions in court.

In other words, even within this smaller class of very costly BCM cases, where LAO does have expert advice from a committee of leading counsel, the provisions of Ontario Regulation 107/99 are still not being applied. LAO has difficulty applying the "reasonable" client of "modest means" test, and we concede it is not an easy test to apply, and so it is only applied in a general way when setting the global preparation budget. It is not applied at all when it comes to arguing motions or issues in court. If counsel is in court on the case for any purpose, they are paid for their time in court and for four hours of preparation for each day in court.

In our opinion, this is not an acceptable approach to LAO's statutory mandate. In the case of privately funded criminal defences, counsel and the client engage in very pragmatic discussions about what issues have merit and, therefore, ought to be pursued. Included in these discussions is a consideration of what the client can afford. In other words, counsel and the client do a cost/benefit analysis. This practical whittling down of the case to the most meritorious issues, given that most clients cannot afford to spend money on marginal issues, has always been an accepted aspect of the justice system. It is meant to focus the trial on the real issues. The statutory test of the "reasonable" client of "modest means" is meant to replicate this discussion, with LAO as the payor standing in the shoes of the client. When LAO declines to take on this role, serious anomalies result. What we create is a litigation style where anything and everything can be explored in court because no one is applying a pragmatic cost/benefit assessment. This obviously leads to unduly long criminal trials. 17

We appreciate that LAO will have difficulty becoming more engaged in managing counsel's budget in the manner that we recommend because it does not presently have the time, resources and expertise to fully carry out its statutory duties. We regard this as an implementation issue. LAO already manages criminal appeals by rigorously assessing their merits before granting a certificate and the same approach needs to be extended and applied to any issue or motion in a long complex trial that will require counsel and the court to expend significant time and resources. LAO should begin to implement our recommendations in this area by selecting a small group of the most costly cases and by applying the letter and intent of Ontario Regulation 107/99 to these cases. As LAO develops expertise and capacity, it can expand its case management regime to the next tier of cases. There will undoubtedly be resource issues and LAO will have to work with the Ministry of the Attorney General in preparing Treasury Board submissions to properly fund these initiatives. If our Recommendation 21 is accepted, and more leading counsel begin to take on the most serious cases, there will be less need for extensive oversight and management of the budget. If the status quo continues, the need to implement the recommendations in this section will be much more pressing.

In our opinion, LAO's present administrative capacity is a valid justification for careful incremental implementation of these recommendations. It is not a justification for ignoring the statutory purpose of the Legal Aid Services Act which is to provide "high quality", "cost-effective" and "efficient" legal services. Paying counsel to pursue whatever issue they please in unduly long court proceedings does not comply with this statutory purpose. We believe LAO supports our proposal for incremental implementation of more rigorous case management and, indeed, is already taking significant and commendable steps in this direction.

Recommendation 22:

In long complex criminal cases, LAO must apply Ontario Regulation 107/99 by setting a budget that identifies the issues that a "reasonable" client of "modest means" would fund under a private retainer and by agreeing to pay for a defence that is based on these issues. Counsel must particularize their dockets so that LAO only pays for work that is authorized. As new and significant issues arise, the budget can be amended. Minor issues that take little time in court need not be approved in advance. The statutory test is practical and flexible and should be used to eliminate any substantial work from the budget that has no reasonable prospect of success or that, even if successful, would not significantly advance the client's defence. Counsel, of course, is free to pursue other issues, if the client so instructs and counsel agrees, but that work ought not to be paid for from public monies.

Recommendation 23:

LAO must seek expert advice when setting the budget in long complex cases from a body like the present Exceptions Committee. That body must be properly resourced and must be allowed sufficient time to study the case in advance, to meet with and question counsel where appropriate about the proposed conduct of the defence, to deliberate, and then to advise LAO as to the issues and motions that have sufficient merit and utility to justify public funding. The members of this body should be paid for their time in carrying out these important statutory duties.

Recommendation 24:

A senior LAO official should attend significant judicial pre-trials in major cases, where feasible, in order to observe and gather information about the conduct of the case and to answer any questions from the pre-trial judge.

4. Improving Post Trial Responses Where the Case Appears to have been Conducted Contrary to the Statutory Purpose of the Legal Aid Services Act

Turning to the post-trial responses from LAO, when a case has been conducted in a way that appears to violate the statutory requirements of the Act, we believe that there is substantial room for improvement in this area.

There are a number of explanations for the lack of action to date on this topic. First, LAO is in the process of establishing, but has not yet finalized, quality assurance standards that address issues like efficiency and cost-effectiveness and that stress the importance of making responsible admissions, the importance of not arguing meritless motions that fail to advance the defence and the importance of focusing on the real issues in the case. Second, there are difficulties with the present draft of ss. 31 and 32 of Ontario Regulation 106/99 which provides for the removal of lawyers who fail to meet "quality assurance standards". In particular, the current regulation requires a full oral hearing before the President of LAO and it provides only the most draconian of remedies, namely, complete removal of counsel from the panel. Third, the provisions of s. 92(8) of the Legal Aid Services Act have caused confusion as they expressly grant the power to conduct "quality assurance audits" to the LSUC and prohibit LAO from conducting such "audits". This has led to the perception and the reality of a divided jurisdiction over "quality assurance". In the result, neither LAO nor the LSUC has ever conducted a "quality assurance audit" in the 10 years that the statute has been in force nor has any lawyer ever been removed from the panel due to a failure to meet "quality assurance standards."

We believe these to be serious deficiencies that all need to be addressed. Fortunately, LAO is supportive of change in relation to these issues and is already taking remedial steps.

Beginning with the lack of appropriate panel standards for long complex cases, LAO has developed an "Extremely Serious Matters Panel Standard" (ESM). As the name suggests, the ESM standard establishes criteria for eligibility in those cases that involve the most serious potential jeopardy to the accused, for example, all murder cases and dangerous offender applications. The criteria for admission to the panel focus almost entirely on counsel's experience, rather than their judgment and effectiveness. In particular, the ESM's standard requires 100 days of contested trials or preliminary inquiries including one jury trial, five voir dires and five Charter motions in the past five years. These are not very demanding standards of requisite experience for a long complex trial. Furthermore, they are incomplete as "quality assurance standards" because they do not stress counsel's judgment and effectiveness, for example, in the ways set out above. LAO's objective in creating the ESM panel standard was laudable, namely, "to create a panel of 'blue chip' lawyers who could be relied upon to represent clients skilfully, responsibly, and effectively in the most serious criminal cases." To achieve this objective, LAO must develop a more rigorous and complete "quality assurance standard", as required by the statutory duty in s. 92(1). LAO agrees with this view and already has an initiative underway to revise and expand the ESM panel standard in the manner suggested.

The importance of "quality assurance standards" is not only at the eligibility stage, when determining whether counsel qualifies for entry onto the ESM panel. It is also necessary because it is a basis for ex post removal of counsel from any LAO panel. Section 31 of Ontario Regulation 106/99 expressly establishes failure to meet "quality assurance standards" as a basis for removal. LAO has a legitimate complaint concerning the drafting of this regulation; they argue that it needs to be amended in two ways and we agree. First, it should provide for lesser and intermediate remedies other than complete removal from the panel when a lawyer fails to perform to the standards required by the Act. Second, the requirement of a full oral hearing is not an appropriate level of natural justice for government contractors, including lawyers, who are seeking access to public funding. LAO has advised us that when they attempt to use the powers in ss. 31 and 32, to remove a lawyer from the panel, the proceedings have invariably bogged down in complex and protracted oral hearings.

Once again, the B.C. Legal Services Society has developed a useful working model which illustrates how ss. 31 and 32 could be improved. Under the B.C. "Referral Eligibility Policy", 18 the Director is the ultimate decision maker and he/she has a much broader range of sanctions than exist in Ontario for lawyers who fail to meet "applicable professional standards" or fail to provide "an acceptable quality of service". The Director may "impose conditions on, or temporarily or permanently suspend, a lawyer's eligibility to receive referrals from LSS." Under this regime a lawyer could be warned or could be given a short suspension and placed on a form of probation, requiring certain steps to improve their standards of practice, prior to the ultimate sanction of permanent removal.

The B.C. policy does not require a full oral hearing prior to invoking one of these remedial measures. The procedure is for the Manager to conduct an inquiry whenever he/she has received "information suggesting that a lawyer fails to meet applicable professional standards [or] fails to provide an acceptable quality of service." After gathering this "preliminary information" the Manager must "notify the lawyer explaining the nature of LSS' concerns" and then "receive such representation from the lawyer as he or she deems appropriate and set time limits for this purpose." The Manager then issues a report with recommendations to the Director who may receive further "representations from the lawyer as he or she deems appropriate." The Director then decides what remedy, if any, to impose. 19

This procedure was recently used to remove a lawyer in B.C. from the panel. The lawyer sought judicial review and Justice Wong upheld the B.C. processes as providing an appropriate level of natural justice, namely, "to provide disclosure and the opportunity to respond, and to give reasons for its decision." The speed and efficiency of the B.C. processes is noteworthy as the Legal Services Society took just over two months to investigate, notify the lawyer, make disclosure to him, receive his response and then remove him from the panel. The judicial review took another eight months to uphold the Director's decision. 20

The last of the explanations for a lack of action in this area, namely, the confusion caused by s. 92(8) of the Act, is easily dealt with. It must be remembered that s. 92(1) of the Act enacts a mandatory duty in terms that bear repeating:

The corporation shall establish a quality assurance program to ensure that it is providing high quality legal aid services in a cost-effective and efficient manner. [Emphasis added]

This mandatory duty is placed on LAO and not on the LSUC. Section 92(2) then enacts one possible tool that "may" be used in carrying out the s. 92(1) duty, as follows:

For the purposes of subsection (1) and subject to subsection (8), the corporation may conduct quality assurance audits of the service-providers, clinics, student legal aid services societies or other entities funded by the Corporation that provide legal aid services. [Emphasis added]

This discretionary audit power in s. 92(2) is a fairly draconian remedial tool as s. 92(3) empowers the person carrying out the audit to enter the service-provider's office without a warrant "during normal business hours and on notice" and to "review their records with respect to the provision of legal aid services". Finally, s. 92(8) provides that where the object of the audit is an individual lawyer in private practice, and not a clinic, LAO must "direct the Law Society to conduct those quality assurance audits." Section 92(12) requires the LSUC to report back to LAO on the results of the audit.

The statutory scheme therefore enacts a broad mandatory duty to "establish a quality assurance program" in order to "ensure" that legal aid services are "cost-effective and efficient." That duty is placed squarely on LAO and not on the LSUC. The fact that the most extreme means of carrying out this duty, through a discretionary warrantless power to enter the lawyer's office and search his/her files, is granted to the LSUC and not to LAO cannot detract from the broad mandatory duty. There are many ways short of warrantless searches of offices to set up a "quality assurance program". Establishing comprehensive "quality assurance standards", especially for long complex cases, would be a first step. Furthermore, if the trial judge's rulings or statements on the record, the Court of Appeal's judgment or even media reports in a given case raise questions about the quality, efficiency or effectiveness of certain lawyers' conduct in the case, one would expect LAO to have a "program" in place to look into that specific case or cases without necessarily requiring a full-scale audit by the LSUC of the lawyer's practice. In B.C., we are advised that this is what happened after the Court of Appeal was particularly critical of one counsel's conduct in a series of appeals. 21 We will refer to this case in greater detail in Chapter 6, concerning the responsibilities of the LSUC.

In any event, we were told that LAO has conducted many quality assurance audits of legal aid clinics and other legal aid organizations but has never asked the LSUC to do the same in the case of an individual lawyer. Given the many trial rulings and appellate decisions that now exist in Ontario in long complex cases, raising questions about the conduct of various counsel, it seems hard to accept that there has never been cause for a s. 92(8) "quality assurance audit" of an individual lawyer. This power is simply not being used. Once again, we were advised that LAO is supportive of change in this regard and has agreed to work with the LSUC to establish a protocol for the use of the s. 92(8) quality assurance audit power.

In conclusion on this section, we wish to echo Professor Trebilcock's concerns about the need for much stronger post-case reviews by LAO of the quality, efficiency and cost-effectiveness of the work done by counsel. In particular, we agree with his view that this jurisdiction is separate and independent of the LSUC's discipline and licensing powers: 22

While LAO has made commendable progress in introducing significant forms of quality control in the system, in particular by establishing criteria for qualifying as members of the various LAO legal aid service panels (e.g., criminal, family law, and immigration law), in important respects these forms of entry or input controls do little, in themselves, to address issues of ex post competence. While LAO does maintain a complaints processing function, this appears not to be well-communicated to clients, nor is it clear to me exactly what process is followed once LAO receives such complaints. In this respect, there remains significant ambiguity as to the relative roles of LAO and the Law Society of Upper Canada in disciplining legal service providers under the various legal aid programs for which LAO is responsible. While it may well be appropriate for LAO simply to refer more serious complaints of egregious misconduct to the Law Society of Upper Canada for investigation and, if appropriate, disciplinary action, especially now that the Law Society of Upper Canada has adopted a more proactive post-entry quality assurance regime, at the very least LAO needs a well-defined process by which lawyers who have been recognized previously as qualifying for membership on the various LAO certificate panels can be removed from these panels, with any further action then remitted to the Law Society of Upper Canada. In this respect, while I do not recommend, at this time, the highly proactive, system-wide, and costly form of peer review of legal aid service providers that has recently been initiated in the U.K., a more targeted form of peer review by LAO may well be warranted, where a pattern of client complaints or billing irregularities suggest a need for further scrutiny of a legal aid service provider's legal aid files, again with a view to re-evaluating whether such providers should remain on an LAO panel and whether referral of the case in question to the Law Society of Upper Canada for further investigation and possible disciplinary action is warranted. [Emphasis added]

We would simply add that these post-case reviews need not be triggered by client complaints. The rulings of the trial judge and the judgments of the Court of Appeal are the best indicators as to whether there are problems worthy of LAO review. In addition, reports in the media about a long case that is encountering difficulties or reports from other counsel may be sufficient cause to at least begin making inquiries.

Recommendation 25:

LAO must develop comprehensive quality assurance standards in order to meet its statutory duty under s.92(1) of the Legal Aid Services Act. In the context of long complex trials, these standards should stress the importance of counsel's duties as officers of the court, including counsel's independence from the client, as well as counsel's duty of loyalty to the client. In particular, the importance of making responsible admissions where issues cannot reasonably be disputed, declining to bring motions that have no real prospect of success or that fail to significantly advance the client's defence, cross-examining and examining witnesses succinctly and efficiently, and generally focusing on the important issues in the case should all be emphasized as the hallmarks of high quality legal services.

Recommendation 26:

Sections 31 and 32 of Ontario Regulation 106/99 should be amended to provide a range of remedies where the President has "reasonable cause" to believe that a lawyer fails to meet standards of professionalism or "quality assurance standards". The remedies should include placing conditions on a lawyer's panel membership, temporarily suspending the lawyer from panel membership and permanently suspending the lawyer from panel membership. In addition, the requirement of a full oral hearing before the President should be replaced with a regime providing for notice, disclosure, written responses and reasons for the President's decision. The B.C. Legal Services Society's Referral Eligibility Policy is a useful model for these amendments to ss.31 and 32.

Recommendation 27:

LAO must develop a program of individual post-case inquiries and reviews, as well as full-scale audits, pursuant to its s. 92(1) quality assurance duty. These inquiries could be triggered by complaints, rulings or statements by the trial judge, judgments of the Court of Appeal, information provided by other counsel or by the Exceptions Committee members or information learned through the media or from the LSUC. If these preliminary inquiries raise concerns about counsel's conduct of the case, then a thorough review of the case by a neutral expert should be ordered. If the review indicates broad systemic problems, then a wider audit of counsel's practice may be justified. LAO's duty to make these inquiries and conduct these reviews is independent and separate from the LSUC's jurisdiction over discipline and licensing. Depending on the results of any review, LAO should take action pursuant to ss. 31 and 32 of Ontario Regulation 106/99 concerning the particular counsel's membership on the panel.

E. Developing the Next Generation of Leading Counsel

One final topic in this chapter that needs to be addressed, regardless of whether one adopts the first or the second approach to reform, is the need to develop the next generation of leading counsel.

Our Review encountered real concerns among participants in the justice system about the decline in mentoring in the criminal bar. An important way in which young lawyers learn the skills and good judgment that will turn them into leading counsel is by watching and working with our best senior counsel. We will address this subject in greater depth in Chapter 6 but we believe that the Legal Aid tariff can be used as a tool to foster mentorship and to help in developing the next generation of leading defence counsel.

Professor Trebilcock noted LAO's present vulnerability because of the apparent failure to develop a new generation of skilled lawyers willing to take on a large volume of even minor cases on Legal Aid certificates: 23

LAO relies on a small proportion of senior lawyers to provide the bulk of legal aid services...Relying on a small number of significant, experienced providers to supply the bulk of legal aid certificate services, while realizing the benefits of experience and specialization, is also quite risky. It means that even a minor reduction in the number of providers could have important consequences for client services. Those consequences will be serious if LAO loses significant providers in small or rural communities.

Within this "risky" demographic picture, the number of lawyers who are willing and capable of conducting a skilful and responsible defence, in a long complex Legal Aid trial, is equally small. Unless LAO assists in developing the next generation of lawyers who are capable of taking on these cases, the future consequences will be serious.

Long complex cases require more than one counsel, in any event, in order to conduct the defence effectively. Leading counsel will not take on these cases unless they have the support of junior counsel. This practice is also cost effective for LAO as junior counsel can do much of the preparation at a lower tariff rate than senior counsel. We understand that LAO will authorize junior counsel to help prepare the case and to attend at trial with senior counsel but that the rate of remuneration for attendance at trial is so low as to make it uneconomical. 24 LAO should increase the rate of remuneration for junior counsel to attend at trial, with senior counsel, both to achieve the benefits of mentoring and to facilitate senior counsel's ability to take on these cases. The Crown has invested in this kind of mentoring for its junior counsel and support for its senior counsel and so should LAO.

Recommendation 28:

LAO should increase the rate of remuneration for junior counsel to attend at trial with senior counsel in long complex cases.


  1. F. Zemans and J. Stribopoulos, "Peer Review in Canada: Results from a Promising Experiment" (2008) 46 O.H.L.J. forthcoming in the 4th issue. Also see: M.L. Friedland, "Governance of Legal Aid Schemes" in Report of the Ontario Legal Aid Review: A Blueprint for Publicly Funded Legal Services (Toronto: Ontario Legal Aid Review, 1997) (chair: J.D. McCamus), at pp. 1027-1028; R. Lawson, "The Ontario Legal Aid Plan in the 90's" (1998), 16 Windsor Y. B. Access Just. 252.
  2. M. Trebilcock, Report of the Legal Aid Review 2008 at p.73. Online: http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/
  3. Ibid at p.116. For a lawyer with less than four years experience, the tariff is $77 per hour and for a lawyer with four to 10 years experience the rate is $87 per hour. The Legal Aid tariff is set by the Lieutenant Governor in Council by regulation.
  4. Op. cit. at pp. 136-140. The Consumer Price Index increased by over 13% between 2001 and 2007 alone so the erosion of the tariff since 1987 has been substantial.
  5. Supra note 126 at p.115.
  6. The financial calculations are very complicated concerning historic levels of federal contributions to criminal Legal Aid budgets. This is because Legal Aid budgets cover family law, criminal law, youth justice, immigration and refugee matters. Federal contributions to each of these areas have varied over time and it is difficult to isolate criminal Legal Aid contributions at any particular point in time. Nevertheless, the general picture is reasonably clear. The briefing that we received was as follows: starting in 1972, the federal government contributed approximately 50% to national criminal legal aid budgets, in effect, dividing the costs equally with the provinces; this regime continued for almost 20 years until 1990 when funding levels were frozen; in 1995 and 1997 there were reductions in funding as a result of federal program reviews; more recently, there have been some increases in federal contributions; the net effect is that the federal government now contributes approximately 30% to national criminal Legal Aid budgets.
  7. British Columbia Legal Services Society, "Fact Sheet on Case Management", May 12, 2008. Online: www.lss.bc.ca
  8. Ibid.
  9. Op. Cit. A Fisher order refers to a case like R. v. Fisher, [1997] S. J. No. 530 (Q.B.), which is so "unique" that a fair trial can only be obtained by the appointment of a particular counsel and where that counsel can only act if fees are paid at a level substantially above the Legal Aid rate. See: R. v. Peterman (2004), 185 CCC(3d) 352 (Ont. C.A.); AG Quebec v. C(R) (2003), 13 C. R. (6th) 1 (Que.C.A.); R. v. Cai (2002), 170 CCC (3d) 1 (Alta.C.A.); R. v. Ho (2003), 17 C. R. (6th) 223 (BCCA). The "Air India" trial is an example of one of these "exceptional matters" where a consent Fisher order was negotiated. The order was administered by former Chief Justice McEachern who had to approve any substantial work by counsel. Senior Crown counsel, Robert Wright, Q.C., advises that admissions made by defence counsel in the case reduced a list of 883 potential Crown witnesses to 85 witnesses and reduced a three to four year trial to about 150 court days. See Michael Code, note 6 at p.460. A more recent example of consent Fisher orders can be found in the Federal Court security certificate cases. These court orders are sealed but it is well known in the bar that the federal Department of Justice, the Federal Court and the special advocates have agreed to fees at substantially enhanced rates, given the complexity of these cases and the seniority of the lawyers involved
  10. S. O. 1998, c. 26
  11. Patrick Monahan, "The Independence of the Bar as a Constitutional Principle in Canada", in In the Public Interest (Toronto: Irwin Law, 2007) at 118-120.
  12. [1989] 1 SCR 143 at 187-188.
  13. (2002), 168 CCC (3d) 321 at 330-331 (SCC).
  14. (1995), 102 CCC (3d) 35 at 57 (Ont.CA).
  15. (2000), 143 CCC (3d) 289 at 297-298 (SCC).
  16. Professor Trebilcock described the value of the Exceptions Committee process in his Report and recommended that its role should be expanded and its members should be paid, supra note 126 at pp. 156 and 159:
    "LAO has approved a proposal to create a more structured process for Exceptions Committee meetings, with stronger senior staff support and analysis and better decision-making guidelines for Exceptions Committee members. I understand that Exception Committee members are highly regarded by the defence counsel who appear before them and that they act with professionalism and integrity in carrying out their role. LAO data show that the Exceptions Committee recommends budgets that are, on average, nearly 50 per cent lower than what is proposed by counsel appearing before it. Exception Committee members provide a valuable service, in the public interest, for no fee. I believe some form of remuneration may be appropriate. … With respect to a more targeted peer review, which I also propose in the previous section, it may be that Exceptions Committee cases are well suited to such a process. The Exceptions Committee is already a form of peer review and, as noted, is well respected. Its role could be expanded to include an evaluation function - at various stages of a proceeding or at the end of the trial - that would review the conduct and outcome of the case."
    We agree with these recommendations.
  17. The statutory test of the "reasonable" client of "modest means" is not only used in Ontario Regulation 107/99 in relation to BCM cases, as set out in s.5(6) above. It is also used in section C of Schedule 1 of the same regulation dealing generally with "Fees in Criminal Matters". That section provides as follows: "This schedule is a legal aid tariff reflecting fees customarily paid by a client of modest means and except in exceptional circumstances the fees provided for shall normally apply for the described legal aid services..." It is therefore apparent that the test was intended to apply broadly to the Legal Aid tariff, whether in ordinary cases or in exceptional BCM cases.
  18. British Columbia Legal Services Society, Referral Eligibility Policy, September 26, 2006, revised October 9, 2007. Online: www.lss.bc.ca
  19. Ibid.
  20. Wise v. Legal Services Society 2008 BCSC 255. Prior to developing its Referral Eligibility Policy in September, 2006, and then revising it in October, 2007, the Legal Services Society had attempted to remove a different lawyer's eligibility and was criticized on judicial review for a lack of natural justice. See B.A.E. and Goldberg v. Legal Services Society 2007 BCSC 1721. The new Policy is a successful response to that decision.
  21. See R. v. Dunbar et al. (2003), 191 B.C.A.C. 223 (BCCA).
  22. Supra note 126 at pp.150-151. For excellent discussions of peer review as a quality assurance tool, see: F. Zemans & J. Stribopoulos, supra note 125; A. Paterson, "Peer Review and Quality Assurance", [2007] 13 Clinical L. Rev. 757.
  23. Supra note 126 at pp.118-119.
  24. The tariff pays junior counsel at 50% of his/her normal rate when authorized to attend at trial with senior counsel on a major case. Assuming the junior counsel has less than four years experience, this would mean that LAO pays the junior $38 per hour.

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