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Delays, lack of access due to Alberta government’s underfunding of Legal Aid resources

This Perspectives piece was contributed by the Criminal Defence Lawyers Association (Calgary).

Imagine. After years of mounting trauma you finally bring yourself to flee domestic violence.

With the support of family and friends you courageously walk out into the unknown and file a police report. You show them pictures of your body and let them read your messages. Maybe you sign a waiver for medical records. For the first time in what feels like forever you feel in control. You are ready to demand justice. You leave the police station and anxiously await your day in court. That day comes but nothing happens. Again and again, the case is postponed. Everything feels stalled, like it will never end.

Whether it be domestic violence or child custody or sexual assault cases, this is the story thousands of Albertans tell. They seek justice. But where is it?

Anyone who works around Alberta’s provincial court system, or has been drawn into its orbit, knows it has reached its limit. This is not a surprise. It has not happened overnight. It is the direct result of decades of provincial underfunding. Sure, it sounds nice to announce more police or judges or better paid prosecutors. But this accomplishes little if you do not also ensure that the people caught up in this adversarial system also have access to legal representation.

Left in limbo

When a litigant in a child custody case cannot access a lawyer, children are left in limbo and the whole family suffers. But when criminal defendants cannot get lawyers, everyone suffers. Cases take longer, tying up court time that could otherwise be used for family, personal injury, or other court cases. Lives are put on hold, and suffering is prolonged – not just for any particular victim, but for everyone awaiting access to a justice system that can’t keep up with demand.

Without adequate funding for legal aid, impoverished Albertans are abandoned, unable to access adequate legal representation. Alberta is a place of advantage and prosperity. Yet Legal Aid Alberta compensates lawyers at rates significantly lower than what is paid in other provinces, while not providing enough time for lawyers to properly prepare to represent their clients in court. While it promises that “all Albertans facing criminal charges who are eligible for legal aid will be appointed counsel,” Legal Aid does not acknowledge the unbelievable poverty one must face to be eligible for services – that Alberta families scraping by on minimum wage make too much money to qualify.

For those that do qualify, they often face numerous legal issues but will only be granted coverage for one. To be clear, the excellent lawyers that work at Legal Aid do not want to leave anyone high and dry, but they are hamstrung by inadequate funding every single day.

Job actions continues

Defence and trial lawyers from across Alberta just marked their 18th week of job action, part of a decade-long fight with the Government of Alberta for equal access to justice. Meanwhile, government inaction has further backlogged an already overwhelmed justice system. As each day passes more families, children, witnesses, victims, and defendants are left without legal aid support.

While Justice Minister Tyler Shandro continues to deny or ignore the struggle of Albertans seeking justice, the situation grows more dire. Very soon, the fallout will be impossible to manage. Not only will criminal cases be delayed, there is a palpable risk they will be dropped completely.

The Canadian Charter of Rights and Freedoms guarantees the right to a fair trial within a reasonable time. For many criminal matters, this requires an accused’s trial be completed within 18 months. As Albertans struggle to secure legal representation, or even resort to representing themselves, the backlog of cases grows. With an ever-growing logjam of criminal court cases, meritorious prosecutions risk being triaged or dropped.

In an attempt to meet these Charter-protected timelines, criminal cases get priority for available court time. This means Albertans awaiting trial for personal injury, family and child custody matters can see their cases postponed, sometimes several times, for months on end. This underscores the strain our courts are under, and the provincial government’s failure to provide equal access to justice for all Albertans.

‘The Justice Minister’s blind eye gives our justice system a black eye’

With merely a threat to strike due to low wages, Justice Minister Shandro awarded Crown prosecutors an immediate raise.

Yet he continues to turn a blind eye to the plight of lawyers who accept Legal Aid, and their clients who are lost without them. He continues to ignore the devastating impacts of decades of underfunding, and what all of this will inevitably mean for the future of our courts. The Justice Minister’s blind eye gives our justice system a black eye – what good is a prosecutor if they’re the only lawyer in the courtroom when a trial gets adjourned?

The worst is yet to come with an anticipated avalanche of requests to schedule delayed court cases. In its current underfunded state, our justice system does not have a big enough shovel to dig out from underneath all those requests. There are not enough hours, court staff, judges or lawyers to offer timely justice to all those Albertans. As cases are dropped, victims will fall to the wayside – along with their trauma, stress and hopes for justice.

The political spin will be to blame the broken system without acknowledging who broke it, paying lip service to those suffering as a result. But the truth is that without an adequate funding commitment to Legal Aid there will be only one cause – a provincial government failing to work for the betterment of Albertans.

The trajectory of our court system can still be corrected, but time is running out. The provincial government must take meaningful action now. In a massive surplus year, Justice Minister Shandro can lead us there. He can do so by addressing the underfunding that has long plagued Legal Aid Alberta and our courts.

We call upon the Government of Alberta to balance the scales of justice in this province, for the sake of our families, our communities, and our own legal rights. Join us and demand a properly funded institution that can deliver justice.