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Why is legal aid funding cases like this?

In the end, the three-member Ontario Court of Appeal panel thanked the lawyers for their efforts, but dismissed the appeal without needing to hear one word from the Crown.

In other words, for all their argument spread over two days at the high court this week, the lawyers didn't have a leg to stand on.

They hadn't made a dent in the air-tight judgment, which ran to 261 pages, delivered almost five years ago by then Ontario Superior Court Judge David Watt.

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Judge Watt, as he then was, was at the time only the most experienced judge on that bench, equally well-regarded, I think, by the defence bar and prosecutors.

He now sits on the appeal court, although was obviously not a part of this panel.

In any case, the decision that the lawyers - five of them in total - were appealing was the April 7, 2006, conviction of Norman Kidman and Elva Bottineau, grandparents unworthy of a moniker usually associated with kindness and indulgence.

Under the watch of these two, over a course of years, a little boy named Jeffrey Baldwin had starved to death. At death, he was both stunted and wasted; he had pneumonia; his body was bruised and covered with sores and dirt; he had septicemia.

He was a ruin, and it took him a long time to get that way.

The day I sat in at the high court, James Stribopoulos was doing the talking on behalf of Ms. Bottineau. One colleague, Lindsay Daviau, was beside him, the other, Anil Kapoor, was away in Ottawa. Only Ms. Daviau isn't a senior lawyer; the other two have a total of 36 years of experience.

Essentially, they were arguing that Ms. Bottineau was too stupid - her intellectual capacity too limited - to have appreciated Jeffrey's dire condition, and thus she didn't have the necessary foresight required for murder.

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As Justice David Doherty snapped: "It is something a six-year-old child could appreciate - if you don't feed your pets, they die."

Ms. Bottineau's lawyers were actually seeking to have her acquitted, or given a new trial, or failing that, to have her 22-year period of parole ineligibility reduced.

Mr. Kidman's lawyers - he had two, Richard Litkowski and Emily Morton - argued that he should have been convicted of manslaughter (the offence he admitted to at trial), not murder, and that at the least, his period of parole ineligibility should also be reduced.

From the way Justices Doherty and Robert Blair and Associate Chief Justice Dennis O'Connor smacked the lawyers about, it was pretty clear they considered the appeals to be baseless.

As this was the second time in three months I'd seen a high court panel briskly dismiss an appeal and wave off the Crown - that was last December, in the case of David Bagshaw, who stabbed Stefanie Rengel and left her to die - I was curious. I knew it wasn't uncommon for the high court to say they didn't require the Crown to speak, but still, these were murder convictions that seemed unassailable.

Mr. Bagshaw, for instance had pleaded guilty to first-degree murder, yet there he was, appealing not his conviction, but his adult sentence, although he was four days away from turning 18 at the time of Ms. Rengel's death. Mr. Kidman had admitted to manslaughter; Ms. Bottineau had denied any wrongdoing, but both had been convicted by probably the best judge in the country.

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So the question then is, what is Legal Aid Ontario (LAO) doing funding cases like this?

LAO, which receives most of its money from the province, is a cash-strapped organization. The rates it pays most lawyers to take on the cases of indigent Ontarians was, until recently, execrable and, as of this year, only modestly better.

According to Feroneh Neil, acting supervisor for communications at LAO, the organization has paid for an average of 35 high court murder appeals a year in the period from 2005-06 to 2009-10.

But since last April, the number appears to have skyrocketed - in less than a year, LAO already has funded 49 murder appeals to the high court.

Six of those were under the organization's program called "Big Cases" - those deemed more complicated - where the average appeal cost is $56,000, compared with an average $11,300 for non-Big Case murder appeals.

Every case is approved by a district committee.

It should be said that LAO didn't identify the Bottineau-Kidman case as publicly funded, but as one of the lawyers, Mr. Litkowski, told me, "It's not a huge stretch to divine that this was not a privately funded appeal."

Give him credit. Like about 20 other lawyers, Mr. Litkowski also takes on, for a small honorarium, so-called "inmate appeals," cases where members of the defence bar help unrepresented prisoners who in some instances have been refused legal aid. (LAO couldn't tell me how many murder appeals are turned down, but said the majority are approved).

Like most lawyers, Mr. Litkowski's chief concern is that cases with legitimate grounds (judicial error, improper jury instruction, etc.) or where there is a legal principle to be tested (Mr. Litkowski believes that because the grandparents were convicted of murder based on what they failed to do, as opposed to actions they took, this was one such) could slip through the cracks.

I don't disagree. I do wonder how this case, and David Bagshaw before it, pass the smell test for a publicly funded appeal.

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