Right to Know: Government’s control of lawyer funding profoundly unfair
OCTOBER 4, 2013

The government regularly hires private lawyers to assist with specialized legal matters that, for whatever reason, cannot be performed by Crown counsel or other public sector lawyers.
These include consultants, special prosecutors and counsel for parties at a commission of inquiry. And, as a rule, these lawyers are compensated appropriately.
Except, it seems, when the rights of criminally accused persons are at stake.
In a recent decision of the Supreme Court, a bare majority of the court decided that trial judges have no jurisdiction to set the rate of compensation for lawyers retained by the court as “amicus curiae” or “friends of the court”.
Setting the rate of compensation, the Supreme Court held, is a matter in the exclusive domain of the Attorney General.
Why should anyone care about the petty squabbling over money between defence lawyers and the Crown? More importantly, why should anyone care about the Supreme Court’s recent pronouncement on the matter?
The answer is that the model endorsed by the Supreme Court is fundamentally unfair and carries with it the potential for grave injustice.
In a criminal proceeding, there are two opposing sides — the accused and the state. Where, for whatever reason, the trial judge sees fit to appoint counsel to assist, it is counterintuitive that the Crown — one of the adversarial parties to the case — should be granted the exclusive right to set that lawyer’s compensation.
This would be unacceptable in a civil proceeding. And it should be all the more unacceptable when the rights of the accused — an individual who is presumed innocent — are at stake. It is obvious that the party that controls the purse strings, in effect, can have a hand in influencing the course of the proceedings.
This would not be an issue if the Attorney General was willing to negotiate with defence lawyers in good faith — or to offer a rate comparable to that paid to other private lawyers hired by the government.
Instead, the Crown has consistently refused to pay defence lawyers anything more than the Legal Aid rate — a significantly reduced rate of pay that is far below both the private rate and the Crown rate of pay.
It is a fact that the provincial government has long treated the Legal Aid regime with disdain, even characterizing it at one point as “welfare for lawyers”.
Nothing could be further from the truth. Defence lawyers accept Legal Aid certificates when defending indigent defendants. Such lawyers are performing a public service by providing legal representation to accused persons who cannot afford to defend themselves.
And now, knowing that defence lawyers have accepted this rate for certain cases, the Attorney General has determined that it ought to be the default compensation for all court-appointed lawyers.
In effect, defence lawyers are penalized because they, as a profession, have agreed to act for the most marginalized members of society charged with serious offences. And these lawyers have accepted a steep reduction in their private rate, cognizant that they are fulfilling an important role, in the highest tradition of the defence bar.
This approach is worthy of praise, not penalty.
The Legal Aid rate is not the default rate of pay for counsel. It should not, therefore, be viewed as the lowest common denominator when determining the rate of compensation for lawyers appointed by the court to assist in criminal law cases.
When the Attorney General hires a private lawyer to conduct a prosecution that has possible political connotations, it does not resort to the Legal Aid rate. When the Crown pays for a party to be represented at a commission of inquiry, there is no mention of the Legal Aid rate. When the federal government hires private lawyers to act as agents, it is not at the Legal Aid rate.
Unlike the countless accused persons represented at a reduced rate by defence lawyers, the Attorney General is not indigent.
If there is to be fairness in the criminal justice system, there must be parity in funding between Crown and accused. We recognize that the search for truth is best accomplished in an adversarial system — where issues are litigated before an impartial judge. This paradigm assumes an equality of power between the parties.
However, the adversarial model breaks down when one party controls the funding for the other.
This is not about greedy defence counsel. This is not about “welfare for lawyers”. This is about fundamental fairness for unrepresented individuals facing the highest jeopardy known to our society — profound social stigma, criminal conviction and incarceration.
In fact, had the Attorney General been willing to negotiate in good faith on the rate of pay of defence counsel, there would be no need for the court to intervene. Of course, this is not the case.
Accordingly, only a fair and unbiased decision-maker — in this case, the trial judge — should be determining the funding for court-appointed counsel.
In the system where the Crown holds all the cards, the Supreme Court has just handed the state the power to determine lawyers’ funding, and this is nothing short of the trump card itself.
Solomon Friedman is a partner with Edelson Clifford D’Angelo Friedman LLP. He can be reached at solomon@edelsonlaw.ca or 613-237-2290. Follow Solomon on Twitter at twitter.com/firearmslaw or at his website, https://affordabledefence.com/.