Canada: Toronto courts a ‘confusing mess’ as legal aid cuts leave some accused without representation, lawyers say - PressFrom - Canada
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CanadaToronto courts a ‘confusing mess’ as legal aid cuts leave some accused without representation, lawyers say

16:40  12 august  2019
16:40  12 august  2019 Source:   thestar.com

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Toronto courts a ‘confusing mess’ as legal aid cuts leave some accused without representation, lawyers say © Rene Johnston People without private lawyers “are not getting the same treatment” in the court system, said Duty counsel union spokesperson Dana Fisher. “There is nobody advocating for them.”

It is 10 a.m. on Tuesday and the wooden benches in a small, windowless courtroom at the downtown College Park courthouse are starting to fill up.

Ten people are waiting for their names to be called so they set their next court date and it’s impossible to tell who among them have lawyers and who don’t.

Near the front, one woman is fiddling with a handful of coins that she keeps dropping onto the carpeted floor. Eventually, she will fall asleep on the bench and it’s only at noon, after all the matters that morning have been heard, that a court officer gently wakes her up and asks her name.

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Before the Ford government’s cuts to legal aid in June, duty counsel — the publicly funded lawyers who give immediate legal assistance to low-income people who appear in court without a lawyer — would have been staffing this courtroom. But last month Legal Aid Ontario made changes in response to the cuts, including requiring duty counsel to conduct almost all bail hearings for low-income people without representation, not private lawyers paid through legal aid certificates. To accommodate this, duty counsel services have been scaled back elsewhere.

Lawyers who regularly appear in courts across the provinces have seen the resulting confusion firsthand and the College Park courthouse on Tuesday is no exception.

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The “confusing mess,” as Dana Fisher, the union spokesperson for legal aid lawyers, described it, will impact vulnerable, low-income accused the most — delaying how long they stay in jail before getting bail, forcing them to come to court for hours every few weeks to speak the court themselves to set a new court date, or leaving them without proper legal advice before entering a guilty plea.

At some courthouses it means duty counsel is only available on request for mental health or Gladue courts — where cases involved Indigenous accused are heard — which can cause long delays, Fisher said.

People without private lawyers “are not getting the same treatment,” she said. “There is nobody advocating for them.”

It’s almost noon inside the College Park courtroom by the time all the lawyers have had their chance to set future dates for their clients. The court clerk then starts calling out the names left from the 10 a.m. docket.

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The handful of people who are unrepresented or can’t afford to have a lawyer there come forward, holding letters or emails from them that they read off their phones.

For some, the dates they want don’t match the court’s schedule so new times have to be figured out. One man swears and storms out after he realizes he came to court a day early. Another realizes he’d been sitting in the wrong courtroom this whole time. He hurries out.

The woman who had to be woken up was told by the judge a lawyer had already appeared for her and set her next court date. A discretionary bench warrant — an indication that she failed to show up for a court appearance putting her at risk of arrest if it happens again — was cancelled and she was given a paper slip to tell her what day to come back to court. The court officer reminded her about her scattered coins. She collected them and left.

Courtrooms are an opaque place for most people with little previous interaction with the justice system. There are no clear rules, schedules and procedures — even the break times are arbitrary — and it is often unclear who to ask for help. On Tuesday, the Star saw at least four people follow or stop duty counsel lawyers in courthouse hallways to try and ask questions.

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“(Often in the court process) you aren’t treated like a person,” Fisher said.

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It is normal that people are told to show up at a certain time and then wait hours or all day, sometimes with young children, with no regard for their well-being, employment, or other factors, she said. That was something duty counsel used to be able to try and help with.

“Duty counsel had been the help for people who had no help. And it’s heartbreaking to see that disappear,” she said.

The risk is that people, particularly those with mental health or addiction issues, will miss court dates and end up in more trouble — or that they will be asked questions by the Crown or presiding judge that they can’t or shouldn’t answer, Fisher said.

And if they need help, they’ll need to leave the courtroom to find the duty counsel office. But then they might miss their name being called and if that happens court may issue a warrant for their arrest — something criminal lawyer and former duty counsel Emily Dixon said she has heard anecdotally is happening more frequently with apparent court no-shows.

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“Duty counsel could have made an effort to call them, if they were allowed to,” she said.

Last month she observed a youth wait to read a message from his legal aid lawyer that started, “as duty counsel no longer staffs this court, I am forced to read my lawyer’s message myself.” Dixon said she will be doing the same when she has to send messages to the court with her legal aid clients — to protest the changes.

“There are so many ways the system can be fixed other than cutting front-line essential services,” she said.

Ontario has inherited a large deficit, and Legal Aid Ontario is taking the necessary steps to provide sustainable and client-focused legal services for those who are eligible, said Brian Gray, a spokesperson for the Ministry of the Attorney General.

He said duty counsel will continue to serve eligible clients in all courts, and will provide bail hearing services regardless of financial eligibility.

“LAO does not anticipate that these changes will create process delays but it will continue to monitor the situation for LAO clients,” he said.

The reality on the ground is that duty counsel are no longer able to assist in specific ways that they could before, Fisher said. They now can’t assist with bail variation applications — a request to court to allow a change in bail conditions, usually to apply for or accommodate work or to change an address.

The paperwork can be complex and hard to fill out in the right formal language, and there is a risk of disclosing information that could jeopardize an accused person’s case, Fisher said.

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“If they are not as likely to get the bail variation approved, they are at higher likelihood of breaching their bail,” she said. It seems wrong for the justice system to make it harder for people to take prosocial steps in their lives, like getting employment, she said.

Duty counsel are also no longer able to help with pretrial discussions with Crown lawyers, Fisher said. These are closed-door negotiations that usually take place between a Crown and defence lawyer to discuss the withdrawal of charges or a plea deal. It can be challenging for Crowns to do these negotiations directly with an accused person — and risky for an accused person as well who might say something that could harm their case.

The Brampton Crown office has now determined they will not conduct Crown pretrials with unrepresented accused, meaning that people who cannot afford lawyers or who are trying to get a legal aid certificate may be losing access to what can be a crucial step in the court process, Fisher said.

The area where the changes to the role of duty counsel may be most consequential is in bail court, advocates say. Legal Aid Ontario no longer pays private lawyers to conduct bail hearings for clients on legal aid. Now, if you cannot afford a lawyer, it will likely fall to duty counsel to conduct the hearing to get you out of jail as soon as possible.

At College Park on Tuesday, bail court is not as chaotic as expected after the long weekend. It helped, Fisher said, that the Crown in charge of reviewing bails came in early at 7 a.m., extra temporary duty counsel were hired and other courts with free time helped get most of the cases heard.

Several cases involved people arrested for violating their bail conditions. One man was accused of violating a condition barring him from returning to the supported housing building where he lives, as does the complainant he is charged with assaulting.

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The bail condition rendered him effectively homeless, Ontario Court Justice Richard Blouin noted; the man only went back to obtain the “necessities of life,” duty counsel Gerry Grossi told the court.

The man was released again and the condition changed to allow him to return to his home without going within 10 meters of the complainant, and requiring him to work with a social services agency.

By 4 p.m. only one contested bail hearing that was ready to be argued had to be held over until Wednesday.

Fisher said part of the problem is that the changes have been rolled out so fast and in such a haphazard fashion. The concern that people are spending more time in jail because there are fewer resources to conduct bail hearings at College Park prompted Legal Aid Ontario to bring more duty counsel there temporarily — but this is far from a permanent solution, Fisher said.

She said the changes are playing out differently at other courthouses and there is no consistent or official monitoring of the impact across the province to her knowledge, though there is regular communication between duty counsel managers and Legal Aid Ontario. A spokesperson for the Ministry of the Attorney General said Legal Aid Ontario is monitoring the changes.

While Fisher doesn’t support the cuts, it would have been better to ease into the changes over time when “there is so much on the line,” she said.

Alyshah Hasham is a Toronto-based reporter covering crime and court. Follow her on Twitter: @alysanmati

'Criminal Minds' Star A.J. Cook Wins Court Ruling Against Ex-Lawyers Over Fees.
A judge ruled in favor of "Criminal Minds" star A.J. Cook on Monday is her dispute with her former attorneys, who said they were entitled to 5 percent of her payments from the hit CBS drama. 

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