The fair and effective administration of justice for Albertans has seemingly been put under threat, as Legal Aid Alberta (LAA) is set to cease operations in a week.

That, according to the Criminal Defence Lawyers Association of Calgary, the Criminal Trial Lawyers Association of Edmonton, the Southern Alberta Defence Lawyers’ Association, and the Red Deer Criminal Lawyers Association on the July 2 news that the province of Alberta has failed to come to a new governance agreement with Legal Aid Alberta.

In effect, as of July 9 without a governance agreement, Legal Aid Alberta roster lawyers would be unable to take on new clients.

LAA, which has operated for more than 50 years in Alberta, has issued over 300,000 certificates to provide for the representation of Albertans since 2019.

In the 12-month fiscal year ending on April 1, 2024, LAA issued 18,288 certificates in Calgary, up 13 per cent from the year previously.

In a letter sent to Legal Aid roster lawyers by Legal Aid Alberta Board Chair Ryan Callioux, he wrote that current agreement ended on June 30 despite negotiations with the Government of Alberta.

“For those of you who do not know what the Governance Agreement was, it was an agreement between the Law Society of Alberta, the Government of Alberta, and Legal Aid Alberta that codified how we operated,” he wrote.

“It secured the independence of Legal Aid Alberta, while at the same time respecting the role of Government to ensure efficient use of funds, and the necessary role of the Law Society of Alberta in securing the sound practice of law in the Province of Alberta.”

Callioux said that it was in the interest of the government to reopen the agreement, and that Legal Aid Alberta felt the previously negotiated agreement was working well and should have been extended.

A tripartite agreement that was signed in 2019 between the Government of Alberta, Legal Aid Alberta, and the Law Society of Alberta.

Province sought to remove Law Society of Alberta as party to legal aid governance

Criminal defence lawyers across the province, in a joint statement, took umbrage with a proposal by the Government of Alberta to remove the Law Society of Alberta as a party to the legal aid agreement, and to bring Legal Aid from an arms-length, independent organization not beholden to the government to becoming a part of the Government of Alberta.

“It is a central principle of fundamental justice that the person prosecuting an individual must be separate and independent from the person conducting their defence. On the terms of the government’s last-minute ultimatum, this fundamental principle would be destroyed. The impacts of this change will be greater than just affecting criminal defence matters,” said the associations in that joint letter.

“Legal Aid funding affects the administration of family law, child welfare, and immigration matters as well.”

Legal Aid Alberta was given a deadline of July 1 to sign a new agreement with the Government of Alberta.

Callioux called that situation an untenable one for Legal Aid Alberta.

“Legal Aid Alberta’s independence would be significantly curtailed, including that the Minister would have the authority to unilaterally determine that Legal Aid Alberta’s financial situation is sufficient such that the funding that would otherwise be provided would not be required,” he wrote.

“The total amount of the funding and payment of the same could be adjusted at any time in the sole discretion of the Minister… generally, the Grant Agreement is skewed heavily in favour of the Minister, with almost no meaningful obligations on the part of the Minister, including any obligation to continue funding.”

Were Legal Aid Alberta to be brought into the Ministry of Justice, the Government of Alberta would be in the position of both deciding who to prosecute and who to provide funding for legal defence.

Speaking to LWC, Pawel Milczarek, Vice President of the Criminal Defence Lawyers Association of Calgary said that issues already exist around the funding of LAA from by the Government of Alberta.

“Because Legal Aid is in charge of the purse strings, essentially as funded by the government, that’s the problem here,” he said.

As part of the province-wide job action taken in 2022 by criminal defence lawyers, the CDLA among other associations advocated for both greater funding for LAA and for greater access by Albertans to legal aid.

“Without any sort of negotiations going forward for Legal Aid and the Government of Alberta, you would be looking at a really devastating impact to the justice system. The kind of standstill that we would be at would be really unprecedented, because even even at the height of the legal aid job action in 2022, duty counsel services were still in place,” said Milczarek.

“Based on what was proposed, the only thing, the only party that would be cut out entirely would be the Law Society. And basically, there would be tighter control by the Minister of Legal Aid in terms of funding, and what they fund. So that is the primary source of change proposed, but that is not insignificant.”

Callioux called the ask by the government a “snap decision,” in his letter to roster lawyers.

“The Minster was fully aware that we would not have adequate time to respond as it was not reasonable to expect the Board to consider its terms, reasonably study its impacts on the organization, and by extension on vulnerable Albertans, and respond by the deadline imposed,” he said.

In a statement made by officials on behalf of the Minister of Justice Mickey Amery, they said there needed to be a balance between providing high-quality justice and being responsible to taxpayers.

The statement said that the Ministry believed that Legal Aid Alberta had sufficient funds to continue operations with a strong roster of lawyers, as well as day to day operations.

“Alberta’s government remains committed to working with Legal Aid Alberta to ensure Legal aid is well-funded to continue to provide high-quality legal aid services to Albertans. It is also imperative that we are responsible stewards of taxpayer dollars, and that funding is being spent with the best interests of Albertans in mind,” said a Ministry of Justice spokesperson.

“The current governance agreement with Legal Aid Alberta expired on June 30th, and we are working diligently to put in place an interim grant agreement that will ensure Legal Aid Alberta receives the necessary funding to maintain their operations. As of the end of May, Legal Aid Alberta had a cash balance of over $82.1 million.”

According to the LAA’s 2023-24 audited financial statements, of the cash balance remaining at the fiscal year end of March 31, 2024, $74 million of that cash was restricted as deferred revenue to be recognized as an expense upon the completion of LAA certificates.

An additional $8.5 million in cash was held as deferred contributions, held for un-forecasted and unbudgeted costs. Of that available cash, the province provided $1 million, while the Alberta Law Foundation provided $7.5 million.

Callioux said that the Government of Alberta had failed to remit a payment that was due to LAA on April 1 as part of the agreement.

“We had expected that to be forthcoming. We have a legal duty to preserve remaining funds so that the employees of Legal Aid Alberta and the service providers and vendors who serve this organization can still get paid.”

The Ministry of Justice said that a payment of $27.5 million to the LAA was being processed, and said that they were awaiting LAA to complete a grant agreement.

“We are confident the funds we have already provided Legal Aid Alberta are sufficient to maintain a strong roster of lawyers as well as day-to-day operations in the coming months as we finalize a new grant agreement.”

Minister Amery, in an updated statement made on July 3, claimed that the funding for Legal Aid Alberta had become unsustainable, after growing from $66 million in 2015 to $110 in 2024.

“Even more puzzling to our government is the fact that despite this massive increase in funding, Legal Aid Alberta is not materially expanding the number of clients it serves, nor is it being forthcoming with a credible explanation or details as to why this is the case,” he said.

“Albertans expect their government to be responsible with their hard-earned tax dollars.”

The increase in funding to Legal Aid Alberta followed the job action undertaken by defence lawyers across the province, who had refused in 2022 to take legal aid certificates due to what they characterized as underfunding by the Government of Alberta despite the tripartite agreement signed in 2019.

In the 2023-24 financial year, the Government provided $106 million to Legal Aid Alberta—below the $109 million given in 2019 to the organization. In 2022-23 the government provided $89.5 million, and in 2021-22 provided $82.3 million.

Legal Aid Alberta also saw a decrease from 2019 the number of clients served throughout the pandemic. The number of certificates issued province wide rose to 59,599 in the 2023-24 fiscal year, up from a pandemic low of 37,694 in 2021, and above the 55,871 issued in 2019.

Minister Amery also said that the Law Society of Alberta would continue to play a role in governance over Legal Aid Alberta through board governance via the bylaws of LAA, as the regulator for lawyers in Alberta.

Under the current governance agreement, the board of LAA cannot amend the bylaws for the organization without the prior consent of both the Minister of Justice and the Law Society of Alberta.

Calgary Lawyers blindsided by actions of the government

Milczarek said although the details regarding the status of Legal Aid Alberta were in the air, severe outcomes for the justice system in Alberta were likely to come.

"We were given to understand that I'm legally at Alberta and the Government of Alberta, we're working towards a draft a redraft of the governance agreement, which expired in April. So, what happened is at the end of April, they extended for three months, and they were working on it,” Milczarek said.

"It came to us as quite a surprise in the last few days leading up to this announcement that there just wasn't any progress whatsoever on that."

He said that those unprecedented consequences would mean the end for new representation for Calgarians and for Albertans.

"The information that we're getting is that basically, as of [July 9], not only people looking for criminal defence assistance from Legal Aid will be unable to do so, but pretty much every other legal aid. Justice system functions will be essentially done for anything new coming into the system,” Milczarek said.

"From the information that we're getting, this may also extend to do to counsel services from Legal Aid. What’s being sort of told to us at this moment is that it may very well be just like, privately-funded counsel and more in court, as well as who had previously existing legal aid certificates preserved. Everybody else would be effectively unrepresented."

He said that the associations’ reaction to the Legal Aid Alberta announcement has been one of shock.

"We certainly stand with Legal Aid Alberta, in terms of the services they provide to the people who are most vulnerable in our justice system. I guess the message would be, we would hope that the Government of Alberta recognizes that this problem needs to be fixed very quickly, or else there will be significant problems that occur to the administration of justice throughout the province,” Milczarek said.