Information for lawyers

Discretion

Information for Lawyers

Discretion guidelines


These guidelines clarify the discretion request process and come into effect November 26, 2012.

The discretion guidelines are a result of province-wide consultations initiated in May 2012 to ensure greater compliance with the legislation, increase predictability for lawyers and enable Legal Aid Ontario (LAO) staff to provide quicker, more consistent decisions on discretion.
 

Discretion guidelines for specific areas of the law


Effective November 26, 2012

Criminal Law

 

Approved discretion guidelines

Results obtained

  • All charges withdrawn as a result of lawyer’s actions
  • Discharge of all charges at preliminary hearing as a result of lawyer’s actions
  • Acquittal of all charges at trial as a result of lawyer’s actions
  • Sentence significantly reduced as a result of lawyer’s actions
  • Material contribution to an outcome that is precedent-setting and that affects the administration of justice in favour of the defendant

Complexity of the matter

  • Novel legal issue – e.g., attempt at aggravated assault by HIV transmission – or unusual factual situation
  • Rare motion – e.g., third-party records, recusal motion, mistrial
  • Forensic/expert evidence
  • Client’s special needs – e.g., mental illness (unique proceedings)
  • Characteristics of witness – e.g., child witness (testimonial capacity)

Other relevant factors

  • Defence facing exceptional Crown/prosecutorial resources
  • Disclosure
  • Extended sentencing hearing
  • Timeliness/reduction in appearances, i.e., Justice on Target criteria
  • High-profile case


Family Law (Support, Custody, Access)

 

Approved discretion guidelines

Results obtained

  • Motion for interim spousal support – award at high end of spousal support guidelines
  • Motion for interim child support – retroactive to date of application; support ordered where other party stands in loco parentis
  • Access, custody – custodian successful in obtaining relocation and/or change in de facto custody due to parental alienation
  • Change in interim custody
  • Contested no access ruling

Complexity of the matter

  • Client’s special needs – e.g., mental health
  • Self-employed, imputing income
  • Sexual or serious physical abuse allegations – e.g., criminal charges
  • Hague Convention matters

Other relevant factors

  • Disclosure
  • Forensic/expert evidence
  • Multiple children/ parents/parties
  • Well-funded litigant
  • Timeliness/reduction in appearances through mediated/negotiated settlement


Family Law (Child & Family Service Act - CFSA)

 

Approved discretion guidelines

Results obtained

  • Protection application – child deemed not in need of protection
  • Motion – care and custody – child deemed not in need of protection
  • Motion – summary judgment on Crown wardship application – successfully defended and/or costs awarded
  • Status review – resolution from Crown wardship to supervision order

Complexity of the matter

  • Child or parent special needs – e.g., mental illness, addiction
  • Sexual or serious physical abuse allegations – e.g., criminal charges
  • Aboriginal factors, band issues

Other relevant factors

  • Disclosure
  • Forensic/expert evidence
  • Multiple children/ parents/parties
  • Well-funded litigant
  • Timeliness/reduction in appearances through mediated/negotiated settlement


Refugee Law

 

Approved discretion guidelines

Results obtained

  • Successful refugee claim – Immigration and Refugee Board success rate of 20 per cent or less

Complexity of the matter

  • Novel claims - e.g., transgender
  • Exclusion
  • Multiple countries of citizenship
  • Ministerial Intervention

Other relevant factors

  • Minor
  • Domestic violence
  • Mental illness
  • Illiteracy
  • Expert witness