Left to right: Erin Dann, Lori Anne Thomas, Apple Newton-Smith Photo credit: John Hrynuik
The flight of women out of criminal law is well documented, and those who stay face many obstacles.
On the ground floor of historic Osgoode Hall in downtown Toronto, there is a hallway linking the Court of Appeal and the Divisional Court with the section occupied by the Law Society of Ontario.
This is also an area of the building where there are change rooms for female and male lawyers who are there to appear in court on any given day. The male change rooms are opulent and spacious with nearly 70 full-length lockers, benches, several mirrors and a spacious bathroom area. There is also a comfortable lounge section with a sofa and a large wooden table and chairs for writing any last-minute notes before appearing in court. The feel inside is that of a male locker room in an old-money golf and country club. Not many steps away is the change room for their female counterparts. The sign on an entrance door says “Lady Barristers.” Inside, there are 12 lockers. There is mismatched furniture and an old desk in the room. The décor is best described as “chintz,” says Toronto criminal defence lawyer Apple Newton-Smith. The disparity in size and comfort level sends a message, even if inadvertently, says fellow defence lawyer Lori Anne Thomas. “It is like there is a sign there saying we don’t think you are staying long.”
The changing facilities at the building that is the home of the Ontario Court of Appeal is obviously not specific to female lawyers who practise criminal defence. In fact, Newton-Smith, a partner at Berkes Newton-Smith and a vice president of Ontario’s Criminal Lawyers’ Association, notes that it is still one of the nicer changing facilities for female lawyers at courthouses in Toronto and surrounding municipalities.
At the same time, it is another example where even though law school classes have been equally male and female for at least 25 years, there is still a disparity in treatment, even in areas as minor as change rooms at courthouses.
In the world of criminal defence, many obstacles remain in place for female lawyers in 2018. There are relatively low rates of legal aid in every province (which impact both male and female lawyers) and the small firm or sole practitioner structure means there are fewer backup office resources or legal mentors. As well, there is a lack of outside assistance if a lawyer is going on maternity leave and, even now, the culture in criminal law may still be behind the rest of the profession in terms of professional respect for female colleagues. As well, except for a small percentage of those in the profession, their annual income is significantly lower than Crown counterparts of the same experience level.
In 2016, the CLA had criminologist Natasha Madon conduct one of the few studies analyzing data about the retention of female lawyers, specifically in the area of criminal law. One of the findings of the study was that 60 per cent of women who started practice in 1998, initially with a large percentage of criminal work, had left that field altogether by 2014. The numbers were high for men as well, but not nearly as great as those for women.
Newton-Smith, who was called to the bar nearly 20 years ago, says the results of the study were not a surprise. “We have a real problem with women staying in the profession. They go to the Crown’s office or they go elsewhere. Among my female colleagues of my experience level, not many are left,” she notes.
While there is very little specific data available, anecdotally at least, the retention issue may be even greater in other parts of the country.
Katherine Bueti, a partner at the criminal law firm of Bueti Wasyliw Wiebe in Winnipeg, says low legal aid rates and a lack of resources for female lawyers who take a maternity leave are significant barriers to earning a living wage and maintaining a client base. “In Manitoba, there have been no increases at all in legal aid rates in 10 years,” says Bueti, who was recently elected president of the Law Society of Manitoba.
“Meanwhile, Crowns have received increases and staff lawyers at legal aid have received raises,” she notes. The legal aid system in Manitoba is a hybrid of staff lawyers and certificates for those in private practice. The hourly tariff is $80, although, like in most provinces, there is an increasing use of block fees.
The Law Society of Ontario and the Law Society of British Columbia are the only provincial regulators to offer any maternity-related assistance. In Ontario, it is a maximum of $9,000 if the lawyer’s net practice income before taxes is less than $50,000 annually. No legal work can be conducted by anyone receiving this stipend. In B.C., there is a maximum interest-free loan of up to $8,000 that must be repaid within four years.
Bueti and her law partners have put in place a parental leave policy at the firm with benefits, which is unusual in the criminal law field in Manitoba. “It is costly, there is no question, but it has to be a priority because anyone we are bringing in is an investment,” she says.
For those who move away from practising criminal defence, the reasons rarely have anything to do with a lack of interest in that line of work. “I have not lost that passion,” says Diana Lumba, a Toronto lawyer who was recently hired by the Public Prosecution Service of Canada as a prosecutor. “I guess I am one of those statistics,” she jokes.
Lumba, who was called to the bar in 2008, came to Canada with her parents at the age of seven. “I did not grow up in a legal world,” she says. After graduating from law school, she articled at the Ministry of the Attorney General and clerked at the Superior Court in Brampton, Ont. for judges such as Justice Casey Hill. “He was a great mentor and a champion of women lawyers and racialized lawyers,” she says.
For several years after that, she practised criminal defence with a mostly appellate practice. “I think it is a noble profession. But it can wear you down. I have a young child. After a while, you get tired of subsidizing an essential government service,” says Lumba.
At the Court of Appeal, for example, the standard Legal Aid Ontario allowance for an indictable conviction appeal is 37 hours of billing. Anything more must be negotiated and, often, disbursements such as mileage will not be provided for any type of case.
While financial reasons may have played a significant role in her seeking employment with the Crown, there is a professional upside, Lumba stresses. “I think we all need to be more civil and have more understanding about the challenges each side faces,” she says, adding that facilitating disclosure requests are often more complex than she previously realized.
Another challenge for female defence lawyers, even in 2018, can be their male counterparts. “It is still a bit cowboy-ish,” says Thomas, who is also on the executive of the CLA. “It is not just in court. It is out of court. They go to [pro sports] games together, they go on trips together. You can be left out of things that are group sessions,” she observes.
Where this comes into play is referrals between lawyers. “I don’t get as many co-accused cases, especially the high-end work, such as organized crime cases,” says Thomas, even though she worked on many of these types of proceedings earlier in her career as an associate.
While there is now a much better gender balance on the courts, especially in provincial courts across the country, out-of-date stereotypes persist.
Erin Dann, a Toronto defence lawyer who clerked for Supreme Court Justice Morris Fish in 2007-08, cites a judicial pretrial where a more junior male lawyer handled the preliminary hearing. The male judge asked her if she was “authorized to make decisions” on behalf of the client, Dann recounts. “I think it is getting better, though. These examples are the exception,” she says.
Thomas also remembers being told on more than one occasion by court staff in the first few years of her career that certain seats in the courtroom were for “the lawyers.”
At a time when there is a push for more diversity throughout the legal profession and for the judiciary to be more representative of the communities they serve, what can be done to apply this as well to the practice of criminal defence?
Law societies should provide more financial support for maternity leave, suggests Newton-Smith. “This is a key issue. Law societies talk about the retention of women. They could do more with a real parental leave program,” she says.
Newton-Smith, who has three children, says she benefits from a supportive partner. “Someone who is able, when you are stuck in trial, to pick up the kids,” she explains.
The CLA also has a women’s committee that tries to assist its members with resources and “crafting your own strategy” to maintain your practice if going on maternity leave.
For younger female lawyers entering the criminal law profession, the need for a strategy may extend to every part of their practice, says Marilyn Sandford, a partner at Ritchie Sandford McGowan Barristers in Vancouver.
“The traditional criminal lawyer practice, where you do not do other things, may not be the right 21st-century approach,” she says. The prominent B.C. lawyer’s practice has included wrongful death and civil constitutional claims as well as criminal work. For the past number of years, Sandford has also taught a course at the University of British Columbia law school related to wrongful convictions. “I have always had other aspects to my work,” she says.
In provinces such as B.C., it may also make sense to practise outside of the major urban centres, at least early in one’s career. “Leave the big cities and go to smaller communities for a while. There are fewer defence lawyers,” says Sandford.
Dann, who heads Erin Dann Barrister, which includes two associates, agrees that diversifying a practice and trying to find a niche can assist in providing a stable income in an often-unpredictable line of work. “I do a lot of work in the intersection of criminal law and mental disorder and as a referee related to search warrants. Try to develop a special expertise and do good work,” she adds.
Dann and Thomas agree that it is important to try to be a part of higher-end criminal cases early in your career, even if you are a junior lawyer and the financial compensation is not great. “I was always available. You will just get better as a lawyer,” says Thomas.
Once you are out on your own, however, a chambers setting is essential, she says. “We can talk on a daily basis when it comes to strategy. No matter how many years you are out, you will always have questions,” Thomas notes. A chambers environment also provides an opportunity to share overhead expenses, she adds.
The business side of a criminal defence practice, even if it is very busy, is another area where female lawyers might be more reticent when it comes to the amount of fees they will seek from a client, compared to their male counterparts. In fact, one of the topics at a spring 2017 criminal lawyers’ conference in Toronto aimed at female lawyers was entitled “show me the money.”
“Don’t negotiate with yourself,” says Dann. In terms of running a business as well as being a busy criminal lawyer, it’s also essential to hire the right people to handle accounting, bookkeeping and administrative matters, she says.
Andrea Urquhart, a partner at Roulston Urquhart Criminal Defence in Calgary, was called to the bar six years ago and says she has no intention of leaving this area of the law. “It is my passion. I like all of what being a defence lawyer is about. There is also a lot of freedom that other lawyers do not have,” she says.
The firm has a busy practice. “Ultimately, criminal defence is a customer service business,” which is what can lead to referrals, Urquhart says. However, she also notes that she is fortunate to have a husband who is also self-employed and shares child care responsibilities. “I am not raising my child alone.”
The nature of the work and the flexibility of a criminal practice is part of its appeal, despite some of the obstacles, says Newton-Smith. “If someone comes to me and says they want to go into defence, it is personality driven and it is not for everyone, but I encourage them,” she says.
Of the 27 people who clerked the same year she did at the Supreme Court, only one other is in the criminal law field and he is a federal Crown, says Dann. The decision for her was not complicated. “I always thought it was the most interesting area. It was the greatest opportunity to put into practice what we studied,” she says. In less than 10 years as a practising lawyer, Dann has appeared at the Ontario Court of Appeal dozens of times and the Supreme Court on six occasions, something that might not have happened if she practised in another area of the law.
The reasons for continuing with criminal defence are straightforward, according to Thomas. “I am now at a point where I can say I don’t want to do that case. I can give it to younger lawyers. Doing what you enjoy makes much more sense. I did not go to law school to be on Bay Street. And it is exhilarating when you conduct a cross-examination that goes well. There is a reason that most legal television shows are about the criminal law,” she says.
Maternity leave benefits
Law Society of British Columbia
A loan program offering up to $8,000. It is available to sole practitioners or firms of up to five lawyers. It is an interest-free taxable benefit that must be repaid within four years. It is not available to lawyers with access to any maternity benefits beyond that of government programs. The loans are intended to cover overhead expenses and not as a substitute for income.
Law Society of Ontario
A sole practitioner or someone in a firm of five lawyers or less is eligible to receive a maximum of $9,000 over 12 weeks under the Parental Leave Assistance Program. To be eligible for PLAP, the applicant must have an annual net practice income (before taxes) of less than $50,000. As well, the applicant cannot have entered into the federal EI special benefits program or be receiving any private maternity benefits. A lawyer “must cease to engage in remunerative work and to practise law” while receiving benefits, the law society states. The purpose of the plan is to assist with overhead costs. In 2015, 37 members were paid a total of $246,750, 23 were paid a total of $173,250 in 2016 and 22 were paid a total of $168,750 in 2017. There were 49,048 licensees in Ontario as of Nov. 2015, 20,342 of which were female.
Ontario Crown Attorneys Association
Under the terms of its collective agreement, a female Crown attorney is entitled to a maximum of 52 weeks of combined pregnancy and parental leave. During pregnancy leave and the parental leave, a member is entitled to receive a payment under its supplemental employment benefit plan to top up EI benefits. The payment is an amount equal to what would bring total compensation during the leave period to 93 per cent of the lawyer’s weekly pay.
British Columbia Crown Counsel Association
Pregnancy and parental leave benefits fall under the terms of the provincial Public Service Act. It provides for a maximum combined leave of 52 weeks. During pregnancy leave, there is a top-up of up to 85 per cent of salary. During parental leave, it is up to 75 per cent of salary.
Sources: Law Society of BC, Law Society of Ontario. Ontario Crown Attorneys Association/Association of Law Officers of the Crown collective agreement 2013-17, BC Crown Counsel Association collective agreement (2007-17)
By the numbers
849 Number of lawyers at the Ontario Ministry of the Attorney General whose salary was more than $200,000 in 2017
48 Percentage of lawyers earning more than $200,000 at the Ontario Ministry of the Attorney General who are female
4 Number of lawyers at the Alberta Ministry of Justice and Solicitor General who earned more than $200,000 (in 2016)
122 Number of lawyers at the Alberta Ministry of Justice and Solicitor General whose salary was more than $180,000 (in 2016)
46 Percentage of lawyers earning more than $180,000 at the Alberta Ministry of Justice and Solicitor General who are female
24 Percentage of lawyers in Ontario with a high volume of legal aid certificates in 2013/14 who are female
34 Percentage of female lawyers in Ontario in 2010 who originally started out doing criminal law but were no longer doing so 10 years after starting practice
$89,100 Average salary for a lawyer in a community legal clinic funded by Legal Aid Ontario (in 2015)
22 Number of lawyers in Ontario who received financial assistance in 2017 under the Law Society of Ontario’s parental leave assistance program (just less than $8,000 on average)
Sources: Ontario and Alberta financial disclosure documents. Legal Aid Ontario. Law Society of Ontario. Study in 2016 by Natasha Madon, commissioned by the Criminal Lawyers’ Association.
Legal aid payments
Hourly rates range from $83.90 to $125 per hour “enhanced rate” for senior counsel, although there are block fees for many services.
For a half day in court, rates range from $125 for a bail hearing on a summary conviction offence to $150 for indictable and $200 for a major offence.
For the first two half days of a preliminary hearing, a lawyer is entitled to bill $600 for an indictable offence and $800 for a major offence.
For the first two half days at trial, up to $600 is allocated for a summary conviction offence, $800 for indictable and $1,400 for a major offence. Similar amounts can be billed for subsequent days.
Summary conviction appeal
Up to 14 hours and time in court.
Appeals to the B.C. Court of Appeal
Up to 45 hours if it is a conviction and sentence appeal as well as time in court.
Hourly rates range from $109.14 to $136.43 per hour, depending on experience level. There are also block fees for certain circumstances including work to complete a guilty plea or a withdrawal by the Crown.
Two hours allotted for bail hearings, whether the Crown proceeds summarily or by indictment.
Actual time in court along with 15 hours of preparation time if the preliminary hearing is 10 days or less.
Up to 10.5 hours for summary conviction offences and 15 hours for indictable “type 1” offences and sexual assault trials. Four hours plus actual court time for each additional day after the first day. (Note: There are higher maximums for the most serious of indictable offence trials.)
One per trial permitted. Two hours maximum.
Summary conviction appeal
Up to 16 hours for appeal of conviction and sentence, in addition to actual time in court.
Appeals to the Ontario Court of Appeal
Up to 37 hours preparation plus attendance in court the day of the argument.