Deborah R. Hatch is director of the Canadian Council of Criminal Defense Lawyers and past president of the Criminal Trial Lawyers’ Association of Alberta
We have all heard of highly publicized wrongful convictions in Canada and elsewhere. What leads to those injustices is a complicated question.
One of the main factors identified in the many miscarriages of justice that have come to light is inexperienced or overburdened defense counsel. The criminal justice system can only function with a strong, properly funded and independent defense bar, capable of providing vigorous and effective representation.
Over many decades, the Alberta criminal justice system, while certainly not perfect, has functioned well.
Prosecutors paid by the provincial government have represented the interests of the state, and defense lawyers have provided legal representation to accused persons. Those who are able to retain a lawyer on their own do so.
Since 1973, the Legal Aid Society of Alberta has provided representation to indigent persons and the working poor, paid for with funding from the province and other sources. The program provides legal representation not only to accused persons, but also to abused women, refugees and others.
But today, the legal aid system is being starved. Contrary to the Alberta government’s claims that legal aid funding has increased since 2015, Alberta’s Legal Aid funding has actually decreased dramatically over the past few years.
As a result, thousands of Albertans cannot qualify for representation due to strict guidelines that fail to keep up with changes in the economy. Those who do qualify are represented by lawyers who are not paid for many hours of the work they do. And for those hours for which they are paid, the rate has not increased in seven years, and does not cover much beyond office overhead.
The steps being taken by lawyers across Alberta to withhold services in certain circumstances until the system is properly resourced are taken with a clear understanding of the damage caused by chronic underfunding.
Starving the legal aid program affects all Albertans, directly or indirectly.
Currently, more unrepresented people are appearing in court, clogging the system with trials that may not have proceeded had they received legal advice and representation. We see longer trials, which, had a lawyer represented the accused, would have been much more efficiently focused and thus shortened.
The system is at risk of more cases being thrown out because of excessive delays. The prospect of more miscarriages of justice, more wrongfully imprisoned Canadians, and more inquiries into wrongful convictions, is real. Wrongful convictions may not only cost the government significantly in financial settlements, but also bring the justice system into disrepute.
Defense lawyers across Canada recognize how important this is. Prosecutors recognize how important this is. This is why the Association of Justice Counsel, which speaks for 2,600 federal lawyers, including federal prosecutors, wrote to Alberta’s Justice Minister, Tyler Shandro, last month stating: “We are very concerned that the inadequately funded Alberta legal aid system has reached an alarming crisis point where defense counsel feel compelled to withdraw their services, and justice in the province is threatened.”
It is clear that in recent years, fewer Albertans have been able to access legal services. The Canadian Bar Association wrote last month that without adequately funded legal aid, “our justice system will continue to deteriorate.” The Alberta Crown Attorneys’ Association stated publicly that “lawyers in the defense bar who represent the accused through legal aid deserve fair and competitive compensation” and noted that the system only works when its component parts function well.
Lawyers are not alone. The Chief Justice of Canada and the Law Society of Alberta have, on numerous occasions, called upon governments, courts and institutions to enhance access to justice for those who cannot afford legal services, and have recognized that it is crucial that legal aid programs be properly funded.
Increased legal aid funding saves money. Independent research has shown that $2.25-million is saved for every $1-million injected into legal aid because of earlier dispute resolution and savings to other social programs. Public opinion polls show that Albertans support such increases in funding.
For as long as the provincial government resists increasing legal aid funding in a substantial and immediate way, individuals in the justice system, and ultimately our democracy, will suffer.
The financial cut-offs for eligibility are so low that some of the most needy and vulnerable individuals are denied representation. This is unconscionable. Those who cannot afford representation still deserve to have their interests protected, to receive independent advice about their predicament and to receive assistance when confronting some of the most serious problems they have ever faced. (For example, immigration, family law or criminal law issues).
The provincial government’s promise to study the issue is not enough. Talk of doing something in 2023 or the next budget cycle is not enough.
Raises for prosecutors – who did not have to wait for the next budget cycle or the new year – without a corresponding increase to defense counsel reflect inequity and a lack of balance. This is why prosecutors are calling for fairness as well.
Most Albertans know that what is happening is not right and that it is the government’s job to ensure funding to legal aid is increased. That is why so many are speaking out and taking action now.
The funding necessary is a drop in the bucket relative to the recently announced $13-billion provincial budget surplus. What is needed is trifling relative to what is being spent on policing and other parts of the justice system.
It is time to recognize and prevent further injustice. Albertans, and Canadians, understand the need for this action. They want the Justice Minister to do what is right. They should expect and are entitled to no less. Fairness and democratic values demand it.
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