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Criminal defence lawyers escalate job action in fight over Legal Aid funding

Starting Sept. 26, Alberta’s criminal defence lawyers will no longer be taking on Legal Aid cases in the province.

The action follows months of escalating protests by members of the province’s four largest criminal defence associations regarding what they see as inadequate funding to Legal Aid.

Job action by the lawyers began earlier in August with refusal to take on a small number of Legal Aid certificates regarding bail only services, courtroom duty counsel, compliant counsel services, and cross examination of complainant services.

The lawyers furthered their refusal to take on more complex Legal Aid cases at the beginning of September.

“What we’ve been trying to do is only do what we have to do to get the government to realize just how bad the situation is in our courts,” said Kelsey Sitar, a vice president with the Calgary Criminal Defence Lawyers Association (CDLA).

“We want to minimize the impact on the vulnerable Albertans that we want to serve.”

Members of the legal profession and supporters protested at the Calgary Courts Centre on Friday with a tongue-in-cheek “bake sale for justice.”

“I mean, we don’t know what else to do at this point,” said Sitar.

“The government is sitting on a $13 billion surplus and they will not give any of that money to Legal Aid. They won’t give any of that money to vulnerable Albertans that are trying to navigate the court system and are being forced to do that alone.

“So our hope is we can raise at least some money here today and give that to Minister Shandro and tell them we trust that you will get that money to poor people in Alberta and help fund some extra lawyers.”

Government said Legal Aid had surplus of funds

Alberta’s Minister of Justice Tyler Shandro said that work to consider increased payments to lawyers has already begun by ministry officials and Legal Aid Alberta.

“Increases to the legal aid tariff, which is the rate that criminal defence lawyers are paid for legal aid work, will be considered as part of the 2023 Budget,” he wrote in an email response.

Minister Shandro referred to an August opinion article written by Legal Aid Alberta CEO John Panusa, in a statement provided to LiveWire Calgary.

“John Panusa, CEO of LAA has publicly stated that they have all required funding necessary to ensure uninterrupted access to justice,” the response read.

The province said Legal Aid Alberta was reporting a large surplus of funds due to court closures during Covid-19 in background information provided to LiveWire Calgary.

“Funding was adjusted based on the significantly decreased demand, while ensuring Legal Aid Alberta had sufficient funding to maintain their levels of operations at that time,” wrote the province.

The province wrote that Legal Aid clients have not been adversely impacted.

According to the financial statements of Legal Aid Alberta in 2021, the province provided $24 million in deferred revenue to LAA, to be recognized as roster expenses when lawyers completed work on certificates. This deferred revenue made up nearly half of the cash assets—and the perceived surplus in funding—reported that year.

Lawyers not waiting till 2023 on review

Sitar said that the job action wouldn’t be put on hold to see if a future cabinet would make different decisions regarding Legal Aid funding.

“The problem with waiting is right now there’s a review happening of the legal aid system, and we’ve been told that that was going to include the two key ingredients: The budget that legal aid gets every year, and who will qualify for legal aid services,” Sitar said.

“That is scheduled to be done, and it’s not considering either of those things.”

She likened the review to renovating a kitchen without having any budget for new appliances.

“So we would love to wait ,and have this be at a time that maybe it was more convenient to the government, but frankly it’s them that chose to undertake an incomplete and frankly useless review at a time that they weren’t going to have a leader for their party,” she said.

Sitar took aim at Minister Shandro’s public statements, where he has previously stated the government couldn’t make any changes to funding until the next budget session.

“I don’t believe it. He’s found money to appoint a bunch of new officers to help people transfer firearms—that was not in that budget,” she said.

“So, when the government needs to find money, they can find money, and they were sitting on $13 billion. I don’t buy it.”

Tens of thousands of Legal Aid certificates at risk of not being filled

According to Legal Aid Alberta’s 2021-22 annual report, lawyers provided service to 34,857 different clients, and 61,132 Legal Aid certificates. Of those certificates, 16,367 were in Calgary.

In 2020-21, Legal Aid provided service to 34,642 clients, down from 39,804 in 2019-20 and 38,589 in 2018-19.

John Hooker, a long-standing criminal defence lawyer in Calgary and one of the original pilot program lawyers for Legal Aid, said that the likely outcome for people not being represented would be improper jail sentences.

"People will be going to jail, improperly. People will be defending themselves and doing a poor job of it," Hooker said.

"The courts are going to get jammed because of delay, the prosecutor's job gets twice as hard, the judge's jobs get twice as hard, and the backup just gets twice as bad."

Sitar said that none of the lawyers protesting and taking job action wanted to be doing so. She said that it was hard to watch their colleagues in family law acting as duty counsel in criminal courtrooms.

"It's awful, but the reality is every study that's been done tells us that continuing to prop up this system doesn't do anyone any favours, that the level of representation people get and the risk of wrongful convictions is too high," she said.

Unsustainable financially for lawyers under current system

Sitar called the current step taken by the lawyers unprecedented in Canada. Previously announced job actions by the lawyers with restriction on Legal Aid certificates was an action also taken by lawyers in Ontario.

"I'm not personally aware of this having to happen in any other province in Canada for the government to take notice of how bad the crisis is in the justice system," she said.

At issue for the lawyers is the current tariff system, which LiveWire Calgary previously reported is approximately 50 per cent less than in Ontario and B.C.

The hourly rate in Alberta is $92.40 per hour, whereas that can range from $109.13 for the least complex cases in Ontario, to $270.30 in B.C. for major criminal cases.

Under a tripartite agreement signed by the province in 2018, the province agreed to fund Legal Aid for $104 million in 2018-19, $106 million in 2019-2020, and $110 million in 2021-2022.

The current deficit between promised funding and actual funding of Legal Aid Alberta is approximately $80 million, said Sitar.

Hooker cited how inflationary costs, and the associated costs of running a legal practice, make the current tariffs too low for lawyers to take on Legal Aid cases.

"I have an assistant, I have a mortgage to pay, I have rent to pay on my office. If I get sick I have to pay insurance, and this is just not funding that kind of an operation," Hooker said.

"And our friends in the prosecution, of course, are well funded. They don't pay a mortgage, they don't have assistants, they don't pay rent, and it's becoming one sided and that's very dangerous for society."

He said that the complexity of cases has increased, especially in light of the need to protect Charter rights.

"I don't think a lot of people understand how important it is to fund Legal Aid. People, when they hear about it, they go 'well are criminals that important?' And possibly not, but the principles that they're convicted on are incredibly important," Hooker said.

'Line in the sand'

Hooker said that the incredibly vast majority of police officers are decent, honourable people, but the slippery slope is when even good people begin to take shortcuts with Charter rights.

Amy Matychuk, a lawyer with Prison and Police Law, attended the protests at the courts on Friday.

She said that the civil Legal Aid cases she takes on are far harder for people to get coverage for.

"It's very frustrating every day to speak to people who really need my help, and to have to tell them that their only options are to pay privately for it, which isn't an option for most people, or to get legal aid funding," she said.

Matychuk cited the inability for prisoners, often the clients she works with, to form robust legal defences while behind bars without Legal Aid.

"So if Legal Aid is removed as a way for you to get assistance with your legal problem, you end up doing your own research, and you end up making a poorly researched application through no fault of your own," she said.

"That takes a lot longer to get through the courts and frustrates the judicial system because you're self represented and the legal system just isn't built for the self represented person."

She said that she was angry on behalf of her clients.

"It feels to me, having to be here, means that this government doesn't actually care about a judicial process that is fair to people who are charged," she said.

"It feels like this government cares about charging people, and it cares about convicting people, and it could care less about whether they're actually guilty or innocent."