Pubdate: Fri, 07 Sep 2007
Source: Lawyers Weekly, The (Canada)
Copyright: 2007 LexisNexis Canada Inc.
Contact:  http://www.mapinc.org/media/4556
Website: http://www.lawyersweekly.ca/
Author: Cristin Schmitz, Ottawa

CROWN AGENTS BILL RECORD TAB FOR DRUG PROSECUTIONS

Drug prosecution costs soared to their highest level in history during the 
Conservative government's first year in office - comprising more than half 
the $50-million tab billed by private-sector law firms who represented the 
federal Crown in criminal and civil litigation in 2006-2007.

The Government of Canada will pay almost $26 million for the fees and 
disbursements of Crown agents who prosecuted illicit drug cases in the 
fiscal year ending March 31, estimated Brian Saunders, the acting director 
of public prosecutions in Ottawa.

That represents an almost $5-million hike — 24 per cent - from the year 
before, according to Department of Justice (DOJ) records obtained under the 
Access to Information Act (the final cost remains a projection because some 
bills are still coming in). The increase is even more remarkable given that 
private-sector prosecutors haven't had a pay rise since 1990. The most 
senior federal prosecutors get $82 per hour, with hourly rates declining to 
$30 for articling students.

In all, the total prosecutions tab for the war on drugs rose to a record 
$60 million in 2006-2007, including the billings of some 800 prosecutors in 
250 law firms across the country, plus about $34 million for prosecutions 
handled in-house by staff prosecutors at the new Public Prosecutions 
Service of Canada.

Rising last December out of the ashes of the DOJ's federal prosecution 
service, the independent agency employs about 450 lawyers.

Saunders told The Lawyers Weekly the higher Crown agent drug prosecution 
costs reflect stepped-up police enforcement last year, a five per cent 
increase in the number of files as compared to 2005-2006, more outsourcing 
to Crown agents by the agency's regional offices, and the complexity of 
drug cases which frequently raise technical legal and constitutional 
issues. "The files were taking longer [and] there was a higher carry-over 
of files from 2005-2006 into 2006-2007 than there had been in the previous 
two years," Saunders explained.

As usual, criminal prosecution costs ate up most of the Crown agent 
monetary pie last year (civil litigation costs were $15 million) .

But civil litigators made up 11 of the 20 top-billing law firms in 2006-2007.

The #1 Crown agent, for the sixth year in a row, was Weil Gotshal and 
Manges of Washington. D.C., which billed $6.4 million in fees and 
disbursements as the lead counsel for Canada in the interminable softwood 
lumber dispute with the United States. The softwood lumber fight has 
generated the largest anti-dumping and countervailing duty cases in trade 
history.

Led by Jean Anderson, the former chief international trade counsel for the 
U.S. Commerce Department and a primary architect of the Chapter 19 dispute 
settlement system for NAFTA, Weil Gothsal's team of a dozen attorneys 
co-ordinates counsel for the provinces and industry, and works on U.S. 
Commerce Department administrative reviews, and appeals of reviews, of 
countervailing duty and anti-dumping orders. The firm has also successfully 
defended Canada against allegations that it dumps hard red spring wheat 
south of the border. Billings were down from $8.8 million in 2005-2006, 
partly because the strong Canadian loonie goes further these days.

The legal highlight of the year was "litigation in the Court of 
International Trade where we had two important victories for Canada," 
Anderson told The Lawyers Weekly. "Both of them went to the question 
whether a U.S. agency decision that was invalidated by a NAFTA panel would 
result in complete refunds of estimated duties. The answer is 'yes', 
according to the Court of International Trade."

The #2 Crown agent was the powerhouse litigation firm of Lenczner Slaght in 
Toronto. With nearly $4 million in fees and disbursements, including $2.5 
million paid by the Department of Justice, and $909,000 paid by the 
Department of National Defence, the 31-lawyer firm acts for the federal 
government on at least four major cases. These include defending against a 
$50-billion claim by civil service unions who allege their pension funds 
were pillaged by the Crown, and pursuing a $1.5-billion civil claim by the 
Crown in Ontario Superior Court against JTI-Macdonald Corp. and the 
Reynolds tobacco empire for tax revenue lost due to an alleged cigarette 
smuggling conspiracy in the 1990s.

"I guess the government, like many clients, recognized that we work 
efficiently and well, and are good value for the money," said Ronald 
Slaght, whose firm has discounted its much higher regular rates to take on 
the government's high-profile and challenging work.

Under fee guidelines set in 1990, the federal Crown pays ad hoc domestic 
agents on civil files $30 per hour for articling students, up to $200 for a 
litigator with 20 or more years' experience, although more is sometimes 
paid for very difficult or high-stakes litigation.

The #3 Crown agent, Calgary's Macleod Dixon, billed $2.2 million, the same 
as the year before. The firm is defending the Crown in a blockbuster, 
multi-billion-dollar breach of treaty and fiduciary duty law suit brought 
by three Alberta Indian bands, who contend the Crown mismanaged their oil 
and gas revenues. The case was launched in 1989, but the arduous trial on 
the historical and money mismanagement phases of the case (another phase 
will deal with oil and gas issues ) did not conclude until 2004, after a 
four-year trial. Federal Court Justice Max Teitelbaum's December 2005 
judgment, which found the rate of return paid by the government to have 
been reasonable, and dismissed the bands' claims, was upheld last December 
by a majority of the Federal Court of Appeal after an unprecedented 15-day 
oral hearing.

Most of 2006 was spent preparing the Crown for that appeal, including 
creating 300-pages of facta, said lead counsel Clarke Hunter, who has been 
working on the case since 1993. "Six lawyers put time into it [last year], 
as well as students and a team of paralegals," he told The Lawyers Weekly. 
"It was a major job to assemble the factums because of the volume of 
material," which included a four-year trial record. A computerized document 
control and transcript system was essential to the task, he noted.

Given that there are several other phases of the case yet to be tried, not 
to mention possible multiple appeals up to the Supreme Court of Canada, 
Hunter, his firm's senior partner, conceded he could be looking at a life 
sentence on the file. "'Daunting' would be a fair word," he said of that 
prospect.

The top Crown agent amongst federal prosecutors, Murchison, Thomson & 
Clarke of Surrey and White Rock, B.C. (#4 overall), billed $1.2 million, 
the same as the year before, for its team of seven full-time federal Crowns 
who prosecute marijuana grow operations and drug trafficking in and around 
the second largest city in B.C.

The fees and disbursements of the other top Crown agents doing drugs, 
fisheries, customs and tax prosecutions were: #5 Daigle & Libotte of 
Moncton, N.B. ($1 million, up from $720,000); #6 J.M. LeDressay & Assoc. of 
Langley, B.C. ($977,000, up from $708,000); #8 Victoria's McConnan Bion 
O'Connor & Peterson ($907,000 up from $748,000) and #10 Nanaimo's Jones and 
Company ($848,000, up from $745,000), #11 Greenbank, Murdoch & Co. of Port 
Coquitlam, B.C. ($846,000, up from $785,000); #12 Baker Newby of Chilliwack 
and Abbotsford, B.C ($761,000); #15 Mousseau DeLuca McPherson Prince of 
Windsor, Ont. ($572,000, up from $535,000); and #16 Lee Inglis Albrecht 
($527,000, up from $496,000).

Civil litigators rounded out the rest of the top 20 Crown agent. 
Vancouver's Miller Thompson (#7 - $947,000) billed mostly to Environment 
Canada for defending the government against claims that it negligently 
permitted an inadequate clean-up of a contaminated Fraser River site during 
the 1980s. Torys, of Toronto, #9, billed $900,000 for the work last year of 
retired Supreme Court Justice Frank Iacobucci and other Torys lawyers, on 
behalf o the Crown, in negotiating the historic $2.1 billion final 
settlement in May 2006 of the Indian Residential Schools litigation, the 
largest Canadian class action settlement ever.

At #13, Gowling Lafleur Henderson billed $683,000, much of it to the 
Department of Public Works, while #14 Montreal's Desjardins Ducharme Stein 
Monast billed $597,000 to the Department of Public Works for work related 
to a $44-million civil suit launched in Quebec Superior Court in 2005 to 
recover funds allegedly improperly received under the federal sponsorship 
program.

WilmerHale of Washington, D.C. (#17) billed $484,000 for softwood 
lumber-related representation, while Ottawa's Perley-Robertson, Hill & 
McDougall (#18) charged $452,000, mostly to Public Works and the Department 
of Industry. Calgary's Miles Davison (#19) billed $444,000, largely to the 
Department of Indian and Northern Affairs for defending the Saddle Lake and 
Whitefish band's claim for a declaration that the Crown mismanaged oil and 
gas resources on their reserves. At #20, Montreal's Gilbert Simard Tremblay 
billed $442,000 for its successful defence of federal tobacco advertising 
restrictions.