Ontario defense attorneys are urged to reject a new measure aimed at addressing a growing backlog of criminal cases that the Criminal Lawyers Association (CLA) says will create a “coercive dynamic” that will push defendants to plead guilty. even when they are innocent or have a defense.
The new plan administered by Legal Aid Ontario, would pay attorneys a flat fee of up to $ 1,055 just to resolve an unrepresented client’s court matter, whether with charges dismissal, diversion, peace bond, or guilty plea, in the courts of administration of cases throughout the province. The step is intended to help reduce the backlog of criminal cases piling up in the Ontario Court of Justice due to the COVID-19 pandemic.
Attorneys who accept the new Legal Aid certificates, at a flat fee equivalent to a few hours of work, will also be able to prepare the client’s case for trial, but cannot represent them at trial. According to the CLA, this leaves an attorney who accepts the certificate with no way to argue a “not guilty” result.
The settlement pushes unrepresented individuals to quickly plead guilty and exposes attorneys to potential lawsuits and claims for ineffective legal aid, the CLA said in an open letter to Attorney General Doug Downey and Lise Maisonneuve, President of the Ontario Court of Justice, saying the plan amounts to introducing “guilty plea certificates.”
The province is “playing directly on our ability to advocate for clients,” CLA President John Struthers said Wednesday. “How can we convince the Crown to drop the charge when we have no threat to go to trial and have it proven?”
He added: “In order to have a justice system other than China, you have to have a route to the ‘not guilty’. “
The CLA’s position was shared Wednesday by Ontario Crown Bar Association president Tony Loparco, who said encouraging plea bargains blemishes the criminal justice system, especially “when it is done out of cost and convenience. “.
In September, the Ontario Court of Justice announced that it was establishing new case management courts across the province to address the “high volume of cases” that have accumulated due to the pandemic. These new courts will “complement and assist” the permanent case management courts that are already in place.
Case management courts generally handle many of the primarily administrative hearings that occur early in a criminal case before it goes to trial.
When asked to respond to criticism from the CLA, a spokesperson for the Ontario Attorney General’s Office wrote in an email that Legal Aid certificates are intended to help self-representing clients navigate the new system. “These certificates allow private attorneys to similarly assist attorneys on duty on a limited basis to assist a defendant in resolving or bringing the matter to trial,” the spokesperson wrote.
Meanwhile, a spokesman for the Ontario Court of Justice declined to comment.
Several Ontario attorneys voiced support for the CLA position on Wednesday.
The certificates “represent yet another trap in the system designed to force people to plead guilty. I can’t, in good conscience, be a part of that. ” Toronto defense attorney Alison Craig tweeted.
“When Legal Aid funds a guilty plea but not a trial, you know there is a problem. These courts and the new certificates are designed to induce guilty pleas and grease the wheels of injustice. ” Ottawa attorney Michael Spratt wrote.
Added Craig Bottomley, another advocate: “If you’re going to sell a part of your soul, it should be for more than $ 1000.”
The CLA also protested what the certification scheme means for a legal aid system in dire need of funding. The CLA noted that the certificates are offered to unrepresented individuals regardless of their ability to pay for representation, in effect, “subsidizing the few defendants who can afford to hire an attorney for trial,” while exhausting scarce resources so badly needed by vulnerable and destitute people. .
The province cut Legal Aid funding by a third – $ 133 million – in 2019. While the government has not said where the funding for the new certificates will come from, it is a “matter of logic” that it will come from existing legal aid. “meager” Arcas, affirms the CLA in its open letter.
“It is revealing that the government has chosen to provide funds to coerce the pleas of those who can afford a lawyer, but not additional funds for the trials of those who are financially needy in the Legal Aid system, which no longer has access to sufficient funds, ”the letter says.
The province says it has taken other steps to address the court’s delay, such as ordering prosecutors to make “principled decisions” on whether to proceed with prosecutions, according to a government memo. published earlier this month.
“Prosecutors must take steps to reduce the number of cases … to ensure that the prosecution of serious crimes is prioritized,” says the Oct. 7 directive.
Loparco, the chairman of the Crown bar association, said Wednesday that the directive has created its own problems by creating a “rush to get rid of cases at all costs without public venting of the merits by the Crown or the defense”.
Agreeing with Struthers of the CLA, Loparco said that the best and fairest way to address the backlog of the pandemic is to increase funding for legal assistance, so that “people can adequately defend themselves and not be forced to plead guilty.” .