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New legal aid certificate provides no pathway to pleading not guilty, say lawyers

Criminal defense lawyers say a new Judge-Led Intensive Case Management Court Certificate incentivizes guilty pleas because it only allows legal aid lawyers to assist with resolutions to a case but not proceed to trial
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THUNDER BAY – A new legal aid certificate in Ontario introduced as an effort to address the growing backlog of cases moving through the criminal justice system has lawyers and legal advocates concerned, calling it the ‘guilty certificate’ that allows no pathway to proceed to trial.

“It’s a terrible idea. It is an attempt to get as many people to plead guilty as possible and thereby giving up their right to a trial, to give up defenses that are available, just to get them out of the system,” said Thunder Bay criminal defense lawyer George Joseph.

“It is an attempt that perhaps well-meaning or well-intentioned by the government to attempt to clear the backlog, but the repercussions are very dangerous.”

Earlier this month, the Ministry of the Attorney general detailed the new Judge-Led Intensive Case Management Court (JICMC) certificates, which were implemented on Oct. 28, 2021. These time-limited certificates are available through Legal Aid Ontario to accused individuals who are unrepresented and with a case at least 12 months old.

The certificate provides a block fee to legal aid lawyers of $1,055 to assist the accused with the legal process and negotiate resolutions including withdrawal of charges, aversion, peace bonds, a guilty plea, or setting the matter for trial but not actually participating as legal representation in that trial.  

Criminal lawyers have raised concerns that the certificates do not allow legal aid lawyers to represent the accused at a trial to plead not guilty and test the charges in court, while also taking away the leverage of the defense when negotiating with the Crown for a better deal for a client.

“The justice system has to have a route to not guilty and when you make that road very difficult, you no longer have a justice system, you have a sausage factory,” said John Struthers, president of the Criminal Lawyers Association.

Andreas Asmus, director general of the North District with Legal Aid Ontario, said the JICMC certificate is no different than how legal aid normally works, where if an accused individual does not qualify financially for legal aid, they cannot get the certificate to potentially take the matter all the way to trial.

“I think Legal Aid Ontario does not believe the payment structure incentivizes counsel to advise the accused to enter a guilty plea as opposed to proceeding to trial, counsel will be paid the same block fee, regardless of the result achieved, whether it’s a withdrawal, guilty plea, or the decision to proceed to trial,” he said.  

However, the JICMC certificate does not require any financial testing, meaning anyone can apply for legal assistance through the certificate if the intention is only a resolution, such as a guilty plea. To qualify for legal aid in Ontario, an individual must have an annual sole income of less than $18,795.

Struthers said there are many people going through the criminal justice system who want representation but cannot afford it but also do not qualify for legal aid because they earn too much income.

Those individuals may still want representation in court and because the JICMC does not have financial testing, Struthers said those individuals who apply for the certificate to obtain representation can only do so if they do not intend to proceed to trial.

“We consider this not just putting a thumb on the scale but an elephant on the scale in terms of the negotiating power of any accused to be able to defend themselves,” Struthers said.

But Asmus said as with any other legal aid block fee, the lawyer’s duty is to inform the accused if a guilty plea is appropriate in the case and of all other potential options, such as withdrawal of charges, aversion, peace bonds, or proceeding to trial.

“That allows the accused to decide whether to proceed to trial,” he said. “It is always the accused, whether it is a legal aid certificate or any other form of payment.”

While it may always be the decision of the accused whether or not to plead guilty, Joseph said the JICMC certificates place criminal defense attorneys in a difficult position.

“The lawyer lacks the leverage to threaten the Crown and say, give us a better deal or we are going to trial, and the Crown is under no obligation to do so,” he said. “The Crown Attorney Association is against it as well.”

Future civil liabilities

Lawyers also argue the JICMC certificate system is opening them up to possible civil liability issues because it creates a coercive dynamic that incentivizes an accused individual to plead guilty.

“If these individuals really wanted to plead guilty, they would have done so already or at an early stage using duty counsel,” Joseph said.  

This in turn could result in people who use the certificate system potentially appealing guilty convictions down the road because they felt coerced into entering the plea.

“The desire to plead guilty should be free of the constraints of the pressure to plead guilty,” Joseph said. “They should be doing so because they want to, not because they don’t have any other option.”

While the JICMC is an effort to clear the backlog of cases in the criminal justice system, which has increased significantly throughout the COVID-19 pandemic, both Struthers and Joseph say incentivizing guilty pleas is not the way to address the issue.

“In our criminal justice system, there is only one way to lose weight and that is to stop eating,” Struthers said. “What we have here is a situation where the criminal justice system is being asked to solve addiction problems, mental health problems, and poverty, which it is not designed to do.”

Joseph added that legal aid needs to be properly funded because diverting funds away from lawyers representing accused in court and advancing a defense will disproportionally impact vulnerable individuals, including First Nations people and those living in poverty.

“Nobody wants to be dragged through the criminal justice system,” he said.

“If the government is offering them an opportunity that this lawyer will help you plead guilty, put yourself in that situation. Would you rather, especially If you are in custody, wait until you have your trial of something you are either innocent of or have a defense to, to have your chance to have your day in court, or plead guilty in order to get out sooner?"



Doug Diaczuk

About the Author: Doug Diaczuk

Doug Diaczuk is a reporter and award-winning author from Thunder Bay. He has a master’s degree in English from Lakehead University
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