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Criminal defence lawyers walk out of courts to protest of lack of funding for Legal Aid

Members from all four of the province’s criminal defence lawyer associations walked out of court in Calgary on Monday, in an ongoing dispute with the province over Legal Aid funding.

The protest was yet another escalation in a month that has seen the lawyers make continued demands for what they say is fair compensation for Alberta legal aid cases.

“We’re here today because we’ve been asking the Government of Alberta to properly fund the Legal Aid plan, so that all vulnerable Albertans that need the assistance of a lawyer can get that assistance, and that will be can be properly funded to properly defend them,” said Kelsey Sitar, a vice president with the Calgary Criminal Defence Lawyers Association (CDLA).

“Because right now, the funding and the tariffs that’s in place doesn’t allow for that to happen.”

Job action is being taken by members of the CDLA, the Edmonton Criminal Trial Lawyers Association, the Red Deer Criminal Defence Lawyers Association and the Southern Alberta Defence Lawyers’ Association. Sitar said the actions were unprecedented in Alberta’s history.

“It’s never happened in this province before, and I don’t know that we’ve ever even had defence lawyers organized enough to stop taking Legal Aid files of any kind,” she said.

LiveWire Calgary reached out to Minister of Justice Tyler Shandro for comment, but did not receive a response by publication time.

Action from vast majority of province's criminal defence lawyers

Combined, the four associations represent the vast majority of defence lawyers in the province. It represents lawyers from small firms up to the province's largest legal firms.

Job action began on Aug. 8. Lawyers refused to take on new cases that required bail only services, courtroom duty counsel services, compliant counsel services, and cross examination of complainant services for when defendants are self-representing themselves.

On Sept. 1, members stopped accepting Legal Aid files for cases involving serious criminal offences including homicides, firearm related offences, dangerous offender proceedings and appeals, and most criminal sexual offences.

The lawyers are asking the province to honour a tripartite agreement made in 2018 by then Minister of Justice Kathleen Ganley, Legal Aid Alberta, and the Law Society of Alberta.

At the time, Don Cranston, president of the Law Society of Alberta called the agreement "the most dramatic improvement to Alberta’s legal plan in 40 years."

Under that agreement the province promised to pay $104.1 million in 2018-19, $105.9 million in 2019-20, and $110.4 million in 2020-21. The province provided the promised $104.1 million, but provided Legal Aid $91.8 million in 2020, and $70 million in 2021.

The 2021-2022 annual report for Justice and Solicitor General acknowledged the deficit of of $40.5 million in 2021.

That report stated that the reduction in the ministry's operating budget decrease of $28.7 million for that year was "primarily due to decreased funding to Legal Aid Alberta in order to offset ministry projected voted operating deficit and decreased funding for victims through the Financial Benefits Program due to the program no longer accepting new applications."

Fee structure half of other provinces

Alberta's current legal aid fee structure is approximately 50 per cent less than Ontario and B.C., said Sitar.

The hourly rate in Alberta for certificates issued for cases in the province is $92.40.

In Ontario, depending on the complexity of the tier and complexity of a case, that rate for roster members is between $109.13 to $161.05 per hour.

B.C.'s criminal offence tariff rates range from $162.18 for summary offences, $182.46 per hour for indictable offences, and $270.30 for major offences.

Not all fees are by the hour, and many are set regardless of how little or how long they take to perform.

The example Sitar used was bail hearings in the province. This requires a lawyer to visit a client at a remand centre, or review disclosure documents. It's frequently in excess of 20 pages and often with video—arrange sureties with family members, and then attend court to run that hearing.

For all of that work, the province pays a single fee of $92.40.

"When most of us do the math, and we joke about it, because you have to—we're making 25 to 40 bucks an hour if we're lucky on most files."

Like the legal aid services in Ontario and B.C., roster members are members of firms, often sole members of their firm, who out of that $25 to $40 per hour also have to compensate legal assistants, pay for office expenses, and other overhead costs.

She said if she's lucky, emphasizing the lucky part, she can take home $20 an hour from legal aid files.

Appropriate compensation a multi-step question

Sitar said that the government needs to determine first what fair compensation is for lawyers. Then, it needs to look at if they're actually providing sufficient funding to legal aid to meet that threshold.

"Then, the government needs to look at if that's what we have to pay, what services are we prepared to cover and it may be that there's some services—maybe there's some civil services, some other services that they say 'OK, we're not going to be able to cover those, or we're only going to be able to cover part of those,'" Sitar said.

"But the first thing they need to do is figure out what is fair compensation, so you can have lawyers that are working on your roster, and a roster that sustainable."

She said that the province also needed to examine the financial eligibility of Albertans attempting to get legal aid.

"They got to set some realistic financial eligibility guidelines so we don't have people below the poverty line who don't qualify for legal aid."

Among those individuals are Albertans on AISH. Sitar said the Alberta Government is resisting revisiting their eligibility as part of the overall demands by lawyers for fair compensation.

Lawyers take aim at Legal Aid Alberta CEO

Sitar also took aim at Legal Aid Alberta and its president and CEO John Panusa over an op-ed written for the Calgary Herald on Sept. 1.

"It is very unusual for it to have to come to this, and it's frankly very unusual for Legal Aid to not be joining and supporting their roster lawyers in fighting for more funding for that organization."

Writing in that op-ed, Panusa said that Legal Aid Alberta has been pushed into the news.

"Job action by some contracted criminal defence lawyers who want the government to increase their rates for taking legal aid work has prompted questions from clients, judges, lawyers and Albertans."

"Is Legal Aid Alberta OK? Yes, it is."

He said that to date the organization has received sufficient funds to provide services and legal counsel for everyone who qualifies.

Panusa said that he was concerned about marginalized people getting caught in the crossfire between the defence lawyers and the government.

Sitar said she was shocked by the statements made in the op-ed.

"He is actively advocating against the interests, not only of his organization, who was promised $80 million, but against the people he's supposed to be serving," she said.

"We volunteer not only to hours into on files for free, but to sit on committees to attend meetings to try and help the system function, and we've done that in meetings with Mr. Panusa. So, not only was it offensive broadly, but personally it was deeply, deeply hurtful."

Anger at United Conservative Party

Sitar, speaking to her fellow lawyers during courthouse speeches, directed her anger towards the current United Conservative Party government and Minister Tyler Shandro.

"For years, our members have propped up this broken system, doing hours and hours of work for which they will never be paid. But today, we're telling them the free ride is over."

"Legal Aid Alberta's most recent annual report shows that the UCP has now failed to deliver $80 million to Alberta. These arrears can be calculated easily and the numbers don't lie.

"So, it's dumbfounding that Minister Shandro keeps saying that funding to Legal Aid has increased since 2015. Like anybody, the Minister is entitled to his own opinions. What he's not entitled to are his own facts."

The lawyers were joined by representatives from the United Nurses of Alberta (UNA). They've publicly battled with the Minister during his time in the health portfolio over then-proposed wage cuts to nurses.

"Nurses know firsthand that when Tyler Shandro touches a file, it turns to dust, and so we are here to show support for the defence attorneys who are dealing with a minister who just doesn't listen," said Cam Westhead, second vice present for the UNA.

"We think that people deserve access to justice. For a government that says they're tough on crime, they're actually not putting their money where their mouth is."

Westhead previously served as the MLA for Banff-Kananaskis, and was the deputy whip for Alberta's NDP government.

He said that the UCP reversed the funding agreement to Legal Aid Alberta that his former government made. They just projected a $13 billion surplus last quarter.

"We can't shortchange people when when they've been accused of a crime, they deserve representation. These defence attorneys are highly skilled people, and they deserve to be paid appropriately, so people have appropriate access to justice," Westhead said.

Consequences for lack of legal representation grave

John Hooker, one of the original pilot program lawyers for the legal aid program under the Peter Lougheed Government in the 1970s, was one of the lawyers who walked out of court on Monday.

He said that the Lougheed government, and subsequent governments, have understood the importance of providing legal aid for Albertans.

"However, it's morphed over the years to this government treating us as almost like a thorn in their side," he said.

"They've funded police on several different occasions in the last few years, they've funded the prosecution on several occasions in the last few years, and legal aid has remained the same—and the work has doubled."

The Alberta Crown Attorneys' Association very nearly came to job action with the Ministry of Justice earlier this year. Roughly 75 per cent of the province's prosecutors threatened to walk out over lack of funding and sufficient lawyers to handle cases.

Hooker presented a dire outcome for what happens when a justice system fails as a result of defence counsel arguing on behalf of the accused.

"The ultimate down the road, if it keeps up like this, is a police state. I mean it gets gradually worse and worse," he said.

"The police are good people, and our friends in the prosecution are good people, but everyone tends to cut corners, everyone tends to take the easy road if they can, we're there to make sure they don't do that.

"And I see nothing but disaster in the long run if Legal Aid isn't funded properly. A major proportion of criminal law here is on the basis of legal aid, and it's very, very important."