In Defence of Duty Counsel

In Defence of Duty Counsel

In Defence of Duty Counsel

by Michael Bryant

“We need a logo. Mugs, golf shirts, card-holders, water bottles. And hats,” I said. “We need hats!”

It was the spring of 2016, Room 111, at the A. Grenville & William Davis Court House, Brampton, and I was being truculent, waxing on about promotional merchandise for a group of professionals not known for self-promotion: Duty Counsel (DC)—that part of the defence bar so overshadowed by the Ciceros roaming our halls of justice that you’d be forgiven if you couldn’t name but one of them.

If I was enthusiastic about serving as a DC, at that moment, nobody else was. Indeed, there have been mixed reactions to my pilgrimage from our justice system’s executive suite to the mail room. I served as Ontario Attorney General for four years. Today, I take any shifts available as per diem Duty Counsel.1 I do it to be useful for people in need, and to scale up my experience as a criminal lawyer.2

Soon after my first shift as DC in Courtroom 101 at the Davis Courthouse, I received some urgent texts and emails. One Toronto DC politely suggested to me that I just might be demeaning the office of the Attorney General by serving as DC. That was the water-cooler debate in that court’s DC office that day, she said. That the message was coming from the ranks of DCs should not have surprised me. The reputation of DCs is like that of monosodium glutamate (MSG)—misinformed, undeserved and shoddy. This article is intended as a polemic in defence of Ontario Duty Counsel.

Ontario DCs are to the criminal defence lawyers what globalization is to blue collar workers. This statement would only be hyperbole to those outside the criminal bar, which takes this

As with globalization, the facts are in dispute. Some say that DCs are a drop in the overall legal aid bucket. Others say they are the death-knell of the judicare (i.e., client-choice, legal aid certificate) system. There are Legal Aid Ontario (LAO) budget numbers that suggest that DCs make up a tenth of the overall Legal Aid Ontario budget, whereas certificates are five times that amount. I know many lawyers who dispute that breakdown, insisting that the DC budget is soaring to the detriment of the private bar. The Criminal Lawyers’ Association recently succeeded in getting LAO to agree to an external audit that may better illuminate the facts.

Regardless, for lawyers depending on legal aid certificates for their income, DCs have become the sirens shipwrecking judicare. For leading voices at the bar, the rhetorical and nostalgic appeal of scapegoating DCs is unintentional, but powerful. Legal aid has an infinite reservoir of controversial topics, but Duty Counsel offer up easy arithmetic: appointing more DCs subtracts certificates from legal aid counsel, the argument goes.

This zero-sum thinking is not new. In the 1970s, our Law Society initially opposed legal aid clinics being funded by the Ontario Government. Today, clinics make up less than 20% of the LAO budget—hardly shipwrecking judicare, but arguably subtracting from it. Ontario is described by scholars as having a mixed system of judicare, clinics and duty counsel, in that order. The exact makeup of that mix is in dispute, as I said, but I do not believe anyone denies that judicare currently makes up most of the legal aid budget. Ontario is primarily a judicare system.

Budget numbers, however, are not determinative, in addressing this debate about how best to deliver legal aid. In fact, sometimes a research report to the contrary merely strengthens the Ontario bar’s resolve to defend judicare and oppose its alternatives. In the 1980s, when a CBA report and then a Department of Justice report concluded that DCs delivered equal to slightly better quality of legal services for a lower price, our Law Society commissioned reports excoriating those reports as empirical treason.3

Personally, when I voice supportive views regarding the value or efficacy of DCs, I get the same reaction, usually with an ad hominem kick on the way out the door. I agree with one author’s characterization of this “ideological debate played out on empirical grounds.”4 Maybe some hats are appropriate: Make Legal Aid Great Again!5

The ideological debate about legal aid is not along political or partisan lines. Many defenders of judicare are lefties. I’m not even sure what a neoconservative legal aid lawyer looks like. But if DCs are more cost effective than judicare—a matter in considerable dispute—then one would expect it to be championed by the right. On the other hand, a public defender system could be viewed as the socialist counterpoint to the quasi-capitalist judicare system, wherein the consumer gets to choose and the market prevails. But I’ve never seen anything in any (Canadian) political platform about public defenders. This issue is not about left versus right.

Meanwhile, Ontario DCs sit at the bottom of the criminal legal food chain, at least when it comes to remuneration. There was a time when Crown Attorneys in Ontario went 19 years without a pay increase, but that ended with a 1998 arbitration ruling that raised their salaries some 30%. Compared to Crowns today, DCs are the paupers.6 Unlike Crowns, DCs until recently have been unorganized and voiceless.7

Duty Counsel don’t even get the cool name of our American counterparts: Public Defenders. Or the even cooler name of the largest holistic legal clinic in the continent: the Bronx Defenders.

Like I said, in a burst of avidity, last spring I suggested to a handful of DCs crammed into Room 111, where sureties get interviewed for affidavits by paralegals, that we needed hats.

Ontario DCs sit at the bottom of the criminal legal food chain, at least when it comes to remuneration.

“Hats?”

“Hats. Like they’ve got in Nova Scotia.”

“The Duty Counsel in Nova Scotia have hats?”

“No, but the Crowns do, and I’ve got one of those hats, and I want us to have hats.”

“Why do you have such a hat?”

This was one of my earliest observations as DC: nobody cares that I was Attorney General. I would eventually hear second-hand that some bench and bar reps in Brampton were suspicious that I was secretly on assignment for either the Ministry of the Attorney General or Legal Aid Ontario’s head office. I liked being cast into this role, even if it was fictional. Espionage conspiracies aside, everyone has been extremely hospitable, professional, and rightly blasé about my presence in their courts as Duty Counsel. Truth is, we’re all too busy to get excited about anything other than the file in our hands, assuming that it hasn’t been misdirected to the wrong courtroom.

Back to the hats: “Brampton Defenders. We’re Brampton Defenders!! T-Shirts, jackets, golf shirts, hats, badges, wind-breakers. Just like the Crowns’ and cops’ and judges’ associations. Brampton Defenders—”

The madness was interrupted by the courthouse paging system: “Duty Counsel to Courtroom 207, Duty Counsel to Courtroom 207.”

The first thing that one notices when returning to this courthouse after being away is that the Davis Courthouse feels like LAX on Thanksgiving weekend. It was after 4 pm, but courts were still running hard in Brampton, and that day some of us would log out after 6 pm. No time for hat fantasies, to be sure.

My views on Duty Counsel are informed by my term as A.-G., but also by my term as Opposition Critic for the A.-G., from 1999-2003. In the autumn of 2002, I was shoulder-to-shoulder with Paul Copeland and other criminal defence legends in the legislative gallery, protesting a Conservative Government bill that we interpreted as ushering in a public defender system (it didn’t, but we made our point).

The late NDP justice critic Peter Kormos and I jumped on the bill, as was our job. During legislative debate, I called it the “public defenders office bill” (not so catchy). That’s when I ended up with Copeland and some benchers like Clay Ruby, all speaking out against the public defender systematizing of Legal Aid Ontario.

Back then I was joining the historic trend of the Ontario bar resisting any dilution of judicare. It happened in the 1970s with clinics, and in the 1990s to the present when some provinces began increasing if not replacing judicare with DCs. Different provinces deliver legal services in different ways, with different mixes of judicare, clinics and DCs. Some are primarily judicare (N.B., Ontario, Alberta), some primarily DC (N.S., P.E.I., Saskatchewan), and the rest are mixed.8

During the 2002 debate in the legislature, I referenced a 1998 report by Osgoode Professor and former Dean John D. McCamus, setting forth a blue-print for Legal Aid Ontario. McCamus, now the Chair of LAO, made the case against a public defender system, which ought to give his critics some pause.

Then and now, I continue to defer to my mentors and to senior defence counsel on (most) matters involving legal aid. With the recent exception of Duty Counsel.

For some time now, DCs have been cast in a particular role. The role of the scapegoat. Frustrated with LAO’s shredding of your invoice, or their refusal to pay for a needed disbursement, or their Orwellian reply to your request for a third party records application, or their denial of a certificate to a deserving defendant? Blame the bean counters on Dundas Street at the LAO Mothership and blame DCs.

Lawyers for whom I have endless respect can school me on any matter being brought before the criminal courts of our land; lawyers with the highest grade of intellect and plenty of common sense; lawyers with decades of experience, often having held or holding esteemed positions—president of their local bar association, or Criminal Lawyers’ Association executive members—will single out DCs as a

chief culprit in the demise of legal aid. These men and women, who work for the most vulnerable of defendants, will go red in the face when decrying the Invasion of Certificate Snatchers: the infestation of public defenders in Ontario.

It’s wrong to demonize Duty Counsel for three reasons. Firstly, it’s misinformed. The facts are rarely agreed upon, but anyway you slice it, DCs are still playing a bit part in the legal aid system in Ontario. We do more than extras but less than even the supporting actors (clinics). Until further notice, judicare will dominate criminal legal aid services in this province. Dilution of that truth does

Different provinces deliver legal services in different ways, with different mixes of judicare, clinics and DCs.

not make it untrue, nor does it evince a systemic shift at LAO.

In my view, for LAO to do otherwise would require an elaborate and explicit change in direction for which its board members, and their nominees, would be accountable.9 In other words, while its nominees are not truly delegates of the Law Society, those five board members owe the Law Society full disclosure of any radical shift. The same is true of the A.-G.’s five appointments. The LAO Chair would have to make public his intention to replace judicare with a public defender system. The bar and the public is owed at least that much transparency. None of that has happened to date.

Secondly, I do not believe that the staffing of Duty Counsel by LAO managers, and the performance of DCs on the job, is deserving of the Ontario bar’s relentless critique. There is a category error at work; guilt by association. We’re like the unlucky defendants who are charged merely for being in the wrong place at the wrong time. After all, DCs end up serving those who lack private counsel either because the defendant won’t wait for a certificate lawyer to run their bail hearing, or because they’re determined to plead guilty prematurely. Self-representation is to be avoided, so DCs are the least unsatisfactory alternative. It’s an unenviable position for DCs. But blaming them for these bad outcomes is like blasting a funeral home for being gloomy.

Again, the facts are in dispute. There are studies that refute and those that support the traditional view of the private bar that DC performance is inferior to that of the private bar on certificate.10 Where a study agrees that defendants represented by DCs tend to plead guilty earlier than the alternatives, scholars go on to say that DCs don’t plead out defendants more so than the private bar, whose clients just take longer to get to the same result (which, personally, I see as preferable, since presumably it’s more informed). In my view, any uptick in guilty pleas in Ontario is not caused by DCs.

All I can offer, by way of something other than a summary of scholarship, is my own personal experience. In my limited experience, defendants in a rush to plead guilty manifest from a mess of factors. A momentum toward guilt builds like a juggernaut for too many. If I’m correct that many, many defendants are mentally ill and/or addicted, their personal judgment can be irrational, based more on fear and

anger than on any counsel’s advice, whether DC or private bar. The issue may boil down to whether a lawyer should ever participate in a guilty plea without that defendant having had the benefit of disclosure, and an opportunity to closely review the Crown’s case with defence counsel.

If they haven’t, then what is a DC to do? Decline to assist? Provide summary advice and take a shot at convincing the defendant to be more patient? Conduct a comprehensive plea inquiry and make lemonade out of the lemon of a premature plea? All the above, on a case by case basis? That’s what I do, and that’s what I see other DCs do, but there is anecdotal evidence to the contrary, and a mixed bag of empirical research on point.

To date, all of the repeat offenders I’ve encountered are suffering from mental illness or addiction, which beguilingly paves the misperceived path of least resistance—a guilty plea. If I’m correct about any of this, then DCs get tarred with the brush of bad decisions by chronic offenders, because DCs are the last ones standing in their corner, in plea court.

Moreover, the well meaning Justice of the Peace who slingshots a defendant out of bail court and directly into plea court is not helping matters. The JP is trying to facilitate timely justice. But when that happens, the defendant has no opportunity to sit down with a DC to go through the Crown’s case, if it’s even available. Often there is no evidence other than the police synopsis. In such cases, the plea decision is driven more by fear than reality. And unless you’ve spent a night behind bars, don’t assume you know what it’s like for the defendant to make those choices—particularly if there is mental illness or addiction involved. This is particularly true on a Friday afternoon, when it becomes apparent to the defendant that he’s not going to get released by the weekend. In any case, my point remains: blaming DCs for premature pleas is unfair. Our courts are so focused on systemic delays that they end up rushing defendants exactly when we ought to foster deliberation. Slapdash judgment by (mentally fit) defendants is a crummy side-effect of free will. When the bail or sentencing hearing is done, DCs end up looking too often like a hostage negotiator who “failed” to avert a tragedy.

Lastly, scapegoating DCs is wrongheaded and counterproductive to the cause. Duty Counsel and articling students who are full-time staff of LAO are now unionized, which affords collective bargaining rights. They have a seat at the table that the rest of us do not have. Either that union will advocate on behalf of the CLA and Law Society, or they’ll throw them under the bus, or something in between. If anything, we ought to be partnering with DCs, not vilifying them. After all, we’re all members of the criminal defence bar.

What about the government? Our legal aid system in Ontario has never been directly operated by the government. LAO is an independent, arm’s length organization (prior to which it was run by the bar itself, through the Law Society, from 1967 to 1998), independent from government—which, I should add, was the bar’s doing, albeit they lay the blame for their decision at the feet of the government of the day. Some benchers in the 1990s warned us that having the Law Society concede jurisdiction over legal aid to an independent agency would not work out well.11 When the Law Society of Upper Canada ceded jurisdiction for the administration of legal aid, it gave up the power to determine the precise mix of legal aid service delivery.

That’s not to say that the bar ceded LAO administration to the Ministry of the Attorney General, although parliamentary sovereignty allows the government of the day to change the status quo, subject to the Charter. Governance of legal aid administration—the board that decides the priority given to judicare—is set forth by statute, and allocates five members recommended by the Law Society, five by the A.-G. The chair is appointed by the A.-G. (albeit taken from a list nominated by a committee of three: A.-G., treasurer, and a third-party agreeable to both). The CEO or president of LAO is also on the board, albeit without a vote. And, this is the key, a majority of the board have to be non-lawyers.12

This is the key because that governance mix renders an organization that is more managerial and empirical than normative, in an industry with limited data, if only because it remains paper-based and segregated. The Law Society and CLA, on the other hand, are primarily driven by ideals and principles (normative), which in turn drive their empirical arguments. Our gut tells us that judicare is the right way to go. Our experience and schooling hard wires judicare as our principled preference. Then we reach for the evidence to prove our point.

LAO does not think or operate that way. There is no normative view driving strategy and operations. The result is that the bar and LAO are operating on different software. This debate will not compute.

This has all ended up like a bad road trip, with people in the front and back

seats arguing over directions. Remember, when the bar first approached the government to fund legal aid, the deal was thus: you fund it, we’ll run it.13 Thirty years later, the bar said: we can’t drive this junker if you won’t pay for the gas. But we all ended up with a driver who relies more on a fuzzy map than hard won intuition. The bar sincerely believes that it knows better the direction that LAO should take, but LAO is determined to stay true to Siri.

In my experience, most on that board become quite independent of the Law Society and government. Some, like past or future treasurers, are understandably guardians of the private bar. The president (today called the CEO) of LAO is appointed by the board, without any consultation with the A.-G., or at least that was my experience. The chair and president tend to drive the board, rather than the other way around.

So calling LAO an agency of government, as if it does what it’s told, is misleading. I recall well being told as A.-G. by an LAO chair, as I stepped out from Question Period into the West Wing of Queen’s Park, that LAO was going to do something that I really, really didn’t want them to do. I truly had no say over how LAO was run. I pleaded with the Chair not to do it, but it was done nevertheless. Indeed, the Attorney General is accountable but not responsible for LAO, which sometimes leads to public fights, like the one last December.14 Most of the time, it’s an awkward dance.

Meanwhile, we at the bar have no choice but to ramble at the gates of LAO and Queen’s Park, because we have no collective bargaining rights that would allow for the kind of engagement in the justice system enjoyed by police, prosecutors and the bench, notwithstanding that we remain the primary service providers for legal defence in Ontario.

The recently beleaguered Ontario Medical Association, which represents doctors, look like the Teamsters com

pared to the rights CLA is afforded by LAO management. (Nevertheless, the docs are litigating their constitutional rights for something more than they’re getting, which currently permits unilateral action by the government). It’s a miracle that the CLA has any effect on the administration of criminal justice, given that they are neither politically as lovable as MADD, nor legally entitled to any rights of conciliation, facilitation or disclosure.

Accordingly, I’m not saying that we should shut up and be thankful for Canada’s least underfunded legal aid system. I’m saying that there is a better way to hold LAO accountable than scapegoating DCs when we feel the real fear of financial insecurity that strikes our hearts when we get bad news from the LAO Area Director.

Not enough is done by LAO to address those fears, and the particular makeup of their service providers. Psychoanalysis of criminal defence counsel might be best left for another article and a better author. I’d like first to return to my own short-lived experience as per diem DC. Here is what I’ve seen in Brampton and a couple Toronto courts, at hundreds of bail hearings, pleas, fitness hearings and other appearances at Mental Health Courts, as Duty Counsel.

I’m doing what they’re doing, except that I’m sure that they’re often doing it better. We have zero incentive to do anything other than defend the unrepresented defendants to the max. One female DC in Brampton seems to channel Che Guevara from dawn to dusk, replete with bandanna and hallway hollering with worthy opponents. Like the private bar, we meet defendants in the cells to talk them out of pleading, because more often than not there is no good reason, and often insufficient evidence to support a guilty plea.

On bail, DCs, whether per diem or full-time staff, have done a lifetime’s worth of bail hearings within a few months, and we also, typically, remain in the courtroom while “private counsel” do their hearings, so we can learn from the best and worst. I’ve done hundreds of bail hearings, contested and otherwise, and my colleagues have done thousands.

At Brampton, at least, there is vertical integration of LAO services, which is a fancy way of saying well organized chaos. Sureties sign up then file into an office staffed with paralegals who assist in the drafting of a surety affidavit, replete with rapid-fire Q&A, the checking of boxes, sheets completed for the DCs representing, typically, dozens of defendants at bail court in a day. The paralegals can hoover out the relevant info from sureties and give them a crash course on a bail hearing faster than an (alleged) knife fight in a phone booth.

Those sureties and the relevant paperwork gets delivered by a paralegal or “floater” DC, who also calls potential sureties or no-shows, in between visits to the cells to advise defendants awaiting the transfer to bail court. Throughout, efforts are made by DCs and paralegals to steer John Howard Society workers to interview defendants who might qualify for JHS supervision in lieu of a surety. Victim service workers from MAG are scattered across bail courts to assist any complainants who show up with questions about, typically, the defendant charged with domestic violence. (If all this vertical integration offends your sense of how to best serve clients and practise law, recall what I said about normative versus empirical approaches to legal aid.)

It’s true that some full- and part-time DC staffers are younger and inexperienced. But that changes fast, and that’s just as true for Crowns and for the private bar who aren’t acting as DCs. Every lawyer has to earn their spurs, making mistakes along the way. We all have and we all will. There is nothing about DC errors that are more egregious than private bar errors. More often than not, before I step in it, another member of the bar will slide me a note to rescue my rear. They do the same for all lawyers. I’ve never met a more collegial bunch of competitors than the criminal defence bar. It would be moving if we weren’t such a motley crew.

As for the most pernicious myth about DCs—the DC Plea Pandemic— my experience is that the valid concerns about plea courts are best worked out on the record before the Crown, DC and judge. A careful but colourful recitation of the facts by the Crown can often jolt the defendant into re-thinking whether he can admit them. My DC bosses insist that I always ask the judge to conduct a plea inquiry, in addition to the one I did in private. The judges that I’ve been before have gone out of their way to ensure that a plea is appropriate. I like what one Brampton Justice says to defendants: “you know that you’re doing the Crown’s job for them by pleading guilty. It’s up to the prosecutor to make the case, not you. You sure you want to do that?” It sounds effective, even if it doesn’t always work when it comes to a defendant who is already so beaten down, exhausted, unwell and afraid that everything in the courts feels like fight or flight, and they’ve got no fight left in them.

Space does not permit me to get into my DC experience in Brampton’s Mental Health Court. The DC who normally carries the can in that court is an excellent lawyer, who goes out of her way to give the clients the best service possible. The same is true for the Youth Court. My own experience in Brampton’s Mental Health Court was that DCs were constantly trying to push certificates toward private counsel. Meanwhile, the private bar were only too happy to have DCs assist them. As DC, I’ve often played the role of administrative assistant for private counsel, obtaining instructions or debriefing. It’s what we do as DCs: support the bar, not displace it.

All of which leads me to my final point: the rhetorical scapegoating of Duty Counsel is counterproductive. We are your colleagues. If anything, we’re like emergency ward docs—a particular sort who thrive on the adrenalin while presenting zero threat to family doctors and surgeons. DCs are happy not to have to take files home, like Crowns and private counsel. Over time, most DCs are not lifers. Some end up as Crowns, most in private practice. At least one is on the bench. Our numbers are diminutive compared to the certificate bar. The rare DC lifer is a purest: refusing to cross over to the better paid Crowns but unwilling to let the business of a law practice impact their dedication to serving indigent clients. (Or maybe they’re just good lawyers and terrible capitalists.) Whatever exceptions exist are no more prevalent than in any other profession. Because of the volume of clients represented, our experience could be measured in dog years, especially in the busier courthouses. But regardless, I’ve learned plenty from and been inspired often by my DC brothers and sisters. Accordingly, I respectfully submit that trashing DCs is like eating your kin: just because it’s parliamentary, doesn’t mean it’s right.

I’m telling you, we need hats.

Michael Bryant was Attorney General from 2003-2007, an MPP for a decade, and Cabinet Minister for six years. Bryant clerked at the S.C.C., practised litigation at McCarthy Tetrault LLP, taught criminal law at King’s College, London, and now serves as criminal defence counsel, and per diem Duty Counsel, in Toronto. www.michaelbryant.com.

NOTES:

1 For more on that pilgrimage, see D. Fish, “Whatever happened to Michael Bryant?” Precedent Magazine, 12/5/16, online: https://lawandstyle.ca/law/ cover-story-whatever-happened-to-michael-bryant-2/.

2 Albeit I prefer Charles J. Ogletree’s stated motivation of “empathy and heroism:” C.J. Ogletree, “Beyond Justifications: Seeking Motivations to Sustain Public Defenders” (1993) 106 Harvard L. Rev. 1239.

3 Albert Currie, “Legal Aid Delivery Models in Canada,” (2000) 33 U.B.C. L.R. 285 at 289-291.

4 Ibid. at 291.

5 I cannot claim credit for this barb, shared with me by CLA’s President Anthony Moustacalis, who was recently asked whether his new mantra was “Make the Courts Great Again!”

6 The average salary for a full-time staff lawyer at LAO was $87,700 in 2014 (about the same is true for clinics), online: https://www.legalaid.on.ca/ en/about/communityclinics3comparators.asp.

7 But that ended last year when the Society of Energy Professionals became union representatives for 350 LAO staff lawyers and 25 articling students.

8 See Currie, supra note 3 and Ontario Ministry of Attorney General, Chapter 7, “Choice of Delivery,” online: https://www.attorneygeneral.jus.gov. on.ca/english/about/pubs/olar/ch7.php. 9 Query whether it would require a statutory amendment: s. 14(2), Legal Aid Services Act, 1998, S.O. 1998, c. 26. 10 Currie, supra note 3 discusses the scholarship on point at length. See also Andrew Francis, At the Edge of Law: Emergent and Divergent Models of Legal Professionalism (Routledge, 2011); N.E. Henderson, “The Dilemma of Choice and the B.C. Experience,” (1998) Windsor Yearbook Access to Justice 1; A. Currie, “The nature and extent of unmet need for criminal legal aid in Canada,” (2004) 11 International Journal of the Legal Profession 191-212.

 11 Hon. John Arnup, at Convocation, spoke against the transfer of governance from the bar to an independent agency. As Treasurer, in 1963, Arnup had joined A.-G. Cass to directly lobby the Premier of Ontario for government funding of legal aid. “In essence, the proposal I made to the government was, ‘You pay for it and we’ll run it’.” “Interviews with The Honourable John D. Arnup, O.C., Q.C., L.S.M., with Allison Kirk-Montgomery,” The Law Society of Upper Canada May-June, 2004.

12 Legal Aid Services Act, 1998, S.O. 1998, c. 26.

13 See Arnup, supra note 11.

14 CBC News, Legal Aid Ontario facing $26M deficit, scaling back services for criminal matters, December 19, 2016, online: https://www.cbc.ca/ news/canada/toronto/legal-aid-ontario-certificates-1.3902058.