Canada's great criminal defence brain drain

Defence lawyers are leaving the practice at a faster pace than ever before

Michael Spratt

It is time we talked about defence lawyers.

You won’t miss us until we are gone. And get ready to miss us because defence lawyers are leaving practice at an alarming rate across the country.

Criminal defence lawyers play a vital role in the justice system. Often, we are the only bulwark between the state’s overwhelming power and an often powerless and marginalized accused.

Underdog stories are inspiring. When David walked into the Valley of Elah, the fight was short to face the giant Goliath in combat. The underdog usually wins. But only in stories. In real life, David would have been slaughtered, and in real life, the little guy rarely wins.

In Canadian courts, the David and Goliath story plays out every day.

The state is the giant. Its prosecutors are highly skilled and well-trained. The Crown, supported by the police, has the resources to investigate and collect evidence, fly witnesses across the country, hire experts, advance complex legal arguments and appeal losses.

It is defence lawyers who hold this power in check.

As Frank Addario observed his G. Arthur Martin medal acceptance speech, “We have an Attorney General of Canada and one for each of the provinces and territories. We have a Minister of Public Safety federally and for each of the provinces. And each of those ministers has a small army of smart lawyers to help them achieve their mandates. But First Nations and the wrongly convicted, to take two obvious examples, have no minister, no defender-general.”

 The promise of equality under the law is unattainable without defence lawyers.

But, it seems that the Ontario government does not see defence lawyers this way. I expect the Double Ds — Ontario’s Premier Doug Ford and Attorney General Doug Downey — to see defence lawyers and the presumed innocent accused we represent as an annoyance.

Heck, I bet they sympathize with Shakespeare’s Dick the Butcher.

And while the Double Ds may not want to kill all the defence lawyers, they seem happy to place their thumbs on the scales of justice firmly.

In Ontario, the Ford government cut the annual funding to Legal Aid Ontario by over 30 per cent. Over the last three years, the cuts have totalled almost half a billion dollars.

And while money is being cut from community clinics, legal aid certificates, and social programs — police and prosecutors are being well fed.

Last month, Ontario announced $72 million of new funding to purportedly help Ontario’s court system deal with the COVID-19 case backlogs. Ontario’s Attorney General Downey claimed that the “new investment will support the work of prosecutors and police to hold offenders accountable and stand up for victims of crime as they seek justice.” Downey specified that his government would use the new money to hire more court staff and prosecutors.

And just last week, Ford promised $75 million of additional funding to establish the Office of Illicit Drug Intelligence, create a new Gun and Gang Mobile Prosecution Unit, and “enhance support for gun and gang specialized investigations.”

Criminal defence lawyers have always been second-class justice citizens, but never before has the government seemed to take so much delight in it.

Yes, criminal lawyers are not in it for the money. Our wealthy Bay Street brothers and sisters laugh at our modest hourly rates and require smelling salts when told about payments under the legal aid system.  

No one gives their life to criminal defence to get rich. But things have never been this bad.

During COVID shutdowns, while judges, court staff, and prosecutors received pay checks, defence lawyers struggled to keep our heads above water and the lights on.

After COVID, when the government was cutting legal aid funding, and the courts were asking that the gears of the justice system be lubricated with the devalued time of defence counsel, the Attorney General was increasing funding to hire more prosecutors.

This perfect storm has resulted in one of the worst defence brain drains I have seen in the last 15 years. More than a dozen lawyers have shuttered their practices to take a job with the Crown’s office in the small Ottawa defence bar. And even more have left the practice of law altogether.

This exodus from the defence bar has already cost the justice system decades of skill, expertise, and knowledge. And with the Crown and their new $72 million war chest poaching new calls, we risk losing a new generation of criminal defence lawyers.

Without a vibrant defence bar at the vanguard of the justice system, there will be delays, increased costs, wrongful convictions, and injustice.

But, perhaps that, exactly, is what Doug “the Butcher” Ford wants.

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