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Criminal defence lawyer job action to continue, at least for the short term, despite federal money for Legal Aid

Alberta’s criminal defence lawyers are continuing their job action for at least another week, while they consider the province’s recent increase of the Legal Aid tariff.

The Government of Alberta announced on Oct. 5, that the tariff paid to lawyers for Legal Aid cases would be increasing from $92.40 per hour, to $100 per hour. According to the province, that raises Alberta from the sixth to fourth on the ranking of provinces for tariffs.

The 8.225 per cent increase in the tariff is a result of pass-through money paid to the provinces for Legal Aid via the federal government.

“The federal government does pay for a small percentage of legal aid funding across the country, so it’s unfortunate that the province couldn’t find anything in their existing budget to assist us with,” said Ian Savage, President of the Calgary Criminal Defence Lawyers Association.

“Independent of this nominal increase, it’s nowhere near the amount necessary to reach a level that we think is appropriate.”

Criminal defence lawyers ceased taking on Legal Aid cases on Sept. 26, following escalating job action that saw them steadily reduce the type and number of cases they would take on from Legal Aid Alberta.

“We, again, just continue to ask people to consider what they would want this system to do, if not just for themselves, but if a friend or family member fell into the criminal justice system,” Savage said.

“What kind of service would they like that individual to receive, and to ask themselves that question—we think the answer is quite obvious, and that reasonable Albertans agree with our position.”

Minister of Justice Tyler Shandro said that the increased federal funding allowed the province to increase Legal Aid funding earlier than they had anticipated. The ministry has previously stated that they would not be able to address the Legal Aid budget until 2023.

“Our commitment to review all aspects of legal aid funding remains in place,” he said.

“This in-year funding increase is a first step and we look forward to the results of the modernization project and the results of the comprehensive review.”

More needed to address increasing complexity in cases

Legal Aid Alberta issued a statement on their website on Wednesday, saying that the organization is continuing with modernizing the tarrif structure for roster lawyers.

“The modernized tariff will be enhanced with feedback from and consultation with the roster and support from the Ministry. We are committed to working collaboratively with our partners,” they wrote.

They wrote that the thresholds for qualifying for legal aid were also increasing. Single individuals were previously limited to monthly incomes of less than $1,668 in the previous 30 days, with an annual income of $20,021. The new threshold sets this at $1,805 per month, and $21,668 per year.

Family of 123456+
Old financial guidelines$20,021$24,788$35,275$38,134$40,995$43,855
New financial guidelines$21,668$26,827$38,176$41,271$44,367$47,462
Source: Legal Aid Alberta

The province’s increase to $100 per hour puts the tariff rate in Alberta between 8.5 per cent and 38 per cent less than Ontario, and 38 per cent and 63 per cent less than B.C.

Tariffs paid to Legal Aid roster lawyers in those provinces have a range based on the type and complexity of the cases presented before the courts.

The variable rate is another factor that Alberta’s lawyers are considering bringing to the table as part of their protest over government funding.

“They have to be properly compensated because the problem is if you have junior lawyer handle a case above their ability, then you’re going to inevitably end up with wrongful convictions and miscarriages of justice,” Savage said.

“Just as if you were to apprentice plumber to a situation that is well over their experience level.”

Savage said that an increase of 20 per cent would be needed to address inflation since 2015, and that their ask is for a 40 per cent increase to bring the province in line with other jurisdictions.

Defence lawyers have previous told LiveWire Calgary that the Legal Aid tariff has to be sufficient for all of the associated costs of doing business. Most roster lawyers are in effect small business owners with rent, staff, and their own employment to cover.

Alberta NDP Justice Critic Ifran Sabir issued a statement in response to the government on Wednesday.

“This announcement is a stop-gap measure made in the final hours of Premier Kenney’s government that still falls short of what legal aid lawyers are asking for,” Sabir said.

“I urge the next premier to negotiate in good faith to pay arrears owed to legal aid under the 2018 agreement, and permanently revise tariffs and eligibility guidelines to be comparable to other major provinces.”

Next steps for defence lawyers

Savage said that with the pending change in leadership for the UCP party, and subsequently a new Premier for Alberta and possibly a new Minister of Justice, that the associations were hoping that “those individuals will find the light of day, and do the right thing and find the money now.”

“It’s necessary to get the system back on its feet and not not continue with this charade of ‘oh we have to wait for a budget, budget input, and budget consultations, budget announcements in spring of 2023’—that’s too late,” Savage said.

He said that the lawyers will be meeting again on Oct. 12, to discuss the changes. But, he said, it wasn’t clear if there would yet be a motion from the lawyers to change their job action.

Savage said that the outcome from criminal defence lawyers continuing to refuse Legal Aid cases could mean severe issues for Alberta’s justice system.

“We know for a fact, that if we continue on this path, in short order, relatively short order within a matter of weeks, the justice system will start collapsing,” he said.