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Changes to the Charges Heard Separately Certificate Issuing Process

Posted By Administration, November 30, 2017
Background

Under the block fee billing rules, if a client is charged with an additional “block fee
eligible” offence after a certificate has been issued, defence counsel, when seeking to
resolve the matter, should seek a global resolution of the multiple charges under a
single certificate.

LAO provides an exception, however, to allow lawyers to request a new certificate
through the portal for an additional block fee eligible charge if the new charge is
proceeding separately from a charge or charges authorized on an existing certificate.

Why Are We Making Changes?

Over the past few years, LAO has fine-tuned the charges heard separately exception to
provide quick and timely decisions. Counsel may seek, through a portal application, a
new certificate for charges heard separately without the client having to apply for a
certificate on the new charges. LAO has identified issues with this process, and we are
making changes that will resolve our concerns while maintaining the efficiencies and
advantages of the current process. The changes are listed below.

What is New?

1. If Original Charges Have Been Resolved: A Separate Certificate Will Not Be
Issued


LAO’s analysis of certificates issued through the charges heard separately process
reveals that new certificates have been issued when the charges covered by the original
certificate have already been resolved but not final billed. This is not how the portal
process was intended to be used, and has resulted in new certificates being issued for
charges entirely unrelated to the original charges which do not meet LAO’s eligibility
criteria. LAO is making changes to the portal which prevent counsel from obtaining a
new certificate through the charges heard separately process when the original charges
have been resolved but not final billed.

The technical work to change the portal is in progress. Pending completion of that
work, counsel are advised not to obtain certificates through the charges heard
separately process if the original charge has been resolved.

2. If Defence Lawyer is Unsure How Crown is Proceeding: Separate Certificate
Will Not be Issued

Previously, if defence counsel indicated through the portal that they are “unsure”
whether the Crown is proceeding separately or jointly on the new charges, a new
certificate would be issued. This is inconsistent with Regulation 107 of the Legal Aid
Services Act, which provides that where a lawyer represents a person charged with two 
or more offences and resolves those charges separately, the onus is on the lawyer to
satisfy LAO that separate scheduling was appropriate. Moreover, since June 2015,
lawyers are authorized to bill for a second “s.524” bail hearing on an original certificate
where the client is arrested and detained on new charges. As a result, a separate
certificate is not required to allow defence counsel to conduct a second bail hearing.
In order to align with our regulations and with LAO’s new bail coverage, we will be
making changes to our processes so that if defence counsel is unsure whether the
Crown is proceeding separately or jointly, no separate certificate will issue. If however,
defence counsel learns subsequently that the charges are proceeding separately, he or
she can seek a separate certificate through the portal. This change in process will take
effect immediately.

3. If New Charges are Not Legally Eligible: Separate Certificate Unavailable


LAO has also found in its analysis of certificates issued through the charges heard
separately process that some certificates were being issued for charges where there
was no likelihood of incarceration. This does not conform to our legal eligibility rules.
Therefore, when lawyers are seeking a new certificate through the portal, they will be
asked to provide some additional information about the facts and circumstances of the
new charges to confirm whether a new certificate, if issued, complies with LAO’s legal
eligibility rules. For example, lawyers will be asked for information about whether the
accused is detained, the nature of any prior record, and the Crown’s position on new
charges.

4. If New Charges are already completed: Separate Certificate Unavailable
without review by Director General


LAO has also found that certificates were being issued for charges which had already
been resolved. The request to add criminal charges proceeding separately may not be
used for retroactive authorization. Counsel is reminded to obtain a certificate in advance
of performing services, as certificates with retrospective application are only granted in
extraordinary circumstances, after review by the Director General. Therefore, when
lawyers are seeking a new certificate through the portal, they will be asked to provide
some additional information about the facts and circumstances of the new charges to
confirm whether a new certificate, if issued, complies with LAO’s rules. For example,
lawyers will be asked for information about whether the new charges are ongoing.

Next Steps


The portal changes listed above will likely come into effect late fall/early winter of 2017.

In addition, LAO has learned from different stakeholders, including defence counsel and
the judiciary, that the charges heard separately exception has resulted in defence
counsel moving to have matters resolved separately not because it is in the client’s best
interest (since a global resolution of all charges rather than multiple resolution
proceedings is generally the better option) but because it is financially advantageous.

We are certain that this practice, which effectively puts the lawyer’s interest before
those of the client, is rare, and we expect that that the modifications noted above will
curtail this practice. Nevertheless, we would like to meet with the defence bar to
discuss this concern, and will be doing so in the coming months.

If you have any questions about these changes, please contact Kathleen Murphy
(murphyk@lao.on.ca).

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