Boycott receives unexpected boost by ineffectual defence mounted by Windsor man accused of arson
Kirk Makin
Monday, Jun. 08, 2009 03:55AM EDT
A rapidly expanding boycott of Ontario's legal aid plan got a boost from an unexpected source Friday, when the Ontario Court of Appeal overturned an arson conviction because a defendant who had been denied legal aid was forced to mount his own, ineffectual defence.
A 3-0 majority concluded that William Rushlow – a Windsor, Ont., man who was sentenced to a year in jail for burning down his own home – had been no Perry Mason when it came to legal argument and cross-examination.
“The lack of assistance of counsel impaired the appearance of fairness and, possibly, the ability to make full answer and defence – and in that sense, resulted in a miscarriage of justice,” Mr. Justice Marc Rosenberg said.
Against that backdrop, the number of Ontario lawyers who have pledged to boycott serious legal aid cases to protest against chronic underfunding has risen from 150 to 270.
Christie Blatchford on why the criminal defence bar and the journalism profession have something in common.
The expansion was largely due to a decision by the Criminal Lawyers Association to allow lawyers with five years of experience to join the movement. The boycott had been previously limited to criminal lawyers with 10 years of experience.
“The board initially thought that the senior members of our bar would carry the issue, but we have been swamped by requests to participate,” CLA president Frank Addario said in an interview.
Mr. Addario said that nearly 90 per cent of lawyers who are qualified by Legal Aid Ontario to handle “extremely serious cases” have now joined the boycott. They include such legal luminaries as Edward Greenspan, Clayton Ruby, Marlys Edwardh, Brian Greenspan, Austin Cooper, John Rosen, Alan Gold, William Trudell and Mark Sandler.
Another veteran defence lawyer, Peter Zaduk, also joined the boycott last week, just hours after winning a major acquittal in a high-profile murder case. Mr. Zaduk's client, Ashleigh Pechaluk, had been charged in a lesbian axe-murder case.
“I've done these cases for 31 years, but I can't do them any more,” Mr. Zaduk said in an interview. “The system is out of balance and relies on free services from defence counsel. I'm fed up.”
Mr. Addario said the Rushlow ruling underlined the fact that “the need for an adequately funded, publicly supported defence bar is the same as for any other public service.
“Many of our judges were lawyers when the legal aid plan was vibrant and well-funded, so they might be finding the present situation frustrating,” he said.
The ruling revolved around whether the trial judge ought to have granted Mr. Rushlow a “Rowbotham order” – an order instructing the Ministry of the Attorney-General to fund the defence of an accused person who has already been denied legal aid.
Judge Rosenberg said the trial judge erroneously felt that she could grant a Rowbotham order only if a case presents “unique challenges above and beyond those that would ordinarily be expected in a criminal trial.”
The trial judge also noted: “Were it otherwise, an enormous number of self-represented individuals might well be entitled to state-funded counsel, thereby causing a serious interference with the administration of the state sponsored Legal Aid plan.”
However, Judge Rosenberg said a judge can grant a Rowbotham order if the impending trial will involve some complexity and it seems clear that defence counsel “is essential to ensure that the accused receives a fair trial.”
Judge Rosenberg also said that the health of the legal aid plan is not their business. “It was not the trial judge's concern how the decision to appoint counsel in this case would impact on Legal Aid Ontario's operations,” he said.
Another comment
Re "Ottawa Mens Centre"
"The Legal Aid Budget could be slashed to 10% of its present bill"
The Ontario Government is the author of its own misfortune and the destruction
of untold hundreds of thousands of lives of children who never get to see their
father.
The Ontario Government has systematically engineered an entire social and legal
system that makes being born male, the reason why all legal rights are removed
as soon as he becomes a father and becomes involved in the criminal or family
court.
Ontario Judges may have gender neutral legislation but practically, they give
women anything and everything they want and if a male makes the least protest,
he will be hit with punitive costs orders for having the audacity of actually
asking for access.
Ontario blatantly encourages women to make fabricated allegations of criminal
assault or domestic violence, harassment, you name it, the Provincial Courts are
CLOGGED with Quasi-Family cases, that is, most of the Criminal Court is dealing
with cases that are women verus men, with the prime objective of the mother is
to destroy the father and make sure a child or children never see their father
again.
The Ontario Government created the problems, and they can solve it, just by
ending the Male Apartheid enshrined in Ontario Legislation, and a Family Court
system that spends more time getting rid of cases, creating injustice that
breeds endless litigation because they have an entire system that is set up to
NOT solve issues but create issues that create more work for the Feminist
industry that operates its numerous forms of "One Stop Divorce Shops".
Orest Zarowsky says "the lawyers can surely afford to chip in"
Orest, you need to talk to all the lawyers who have been 'burned' by Ontario
Legal Aid. Check any major city, the number of lawyers who will take legal aid
are few and far between.
Often its only the junior lawyers, with next to no experience who get to do
legal aid.
For the pros on legal aid, its another story, if they work really hard, and play
it right, they can make a six figure income.
Ontario Legal Aid also breeds and encourages a legal cancer of lawyers who do a
very high volume with a next to zero quality.
The Ontario Government has slowly but surely kept adding new requirements or
introducing or changing rules that slowly, eradicate almost anyone who applies
for legal aid.
If you are eligible then you can still be rejected, the first appeal to the area
director can succeed but the next level is a complete waste of time.
Once approved, if you are a female, your lawyer can get an unlimited number of
hours without too much effort.
If you are a male, the lawyer will have to fight for every few hours and spend a
significant percentage of his time, arguing with legal aid as to why the
certificate should allow more hours.
The lack of hours is reflected in the pleadings, they are banged out in super
quick time with lots of omissions and often doomed to failure.
Its not just Ontario Legal Aid, There needs to be a Provincial inquiry into a
reform of the entire Ontario court system including legislation and government
employees and agencies who are all on a gravy train that relies on a revolving
wheel of endless litigation created by a Province with a Feminist Engineered
legal system that has one goal, the criminalization of men.
www.OttawaMensCentre.com