A potential July 9 end to legal aid services in Alberta has been put on hold, at least for the time being, as the Government of Alberta has decided to extend funding to Legal Aid Alberta.

In a joint statement made by Legal Aid Alberta and the Ministry of Justice on July 5, an extension to the otherwise expired tripartite governance agreement that provides for legal aid services in the province was announced.

The extension is set to continue to September 5, 2024.

“Alberta’s government remains committed to ensuring legal aid is available to all Albertans and remains sustainable for the long-term. We will continue to engage with Legal Aid Alberta and the Law Society of Alberta to finalize an agreement in the best interest of Albertans,” said Minister of Justice Mickey Amery.

The joint statement said that the extension would allow for negotiations over the future of legal aid to continue, and that all of the parties agree that the independence of legal aid has to continue in order to provide effective legal services to vulnerable Albertans.

The statement also emphasized that the justice system would continue to operate while the negotiations continued.

“We look forward to good faith negotiations and establishing a long-term Governance Agreement that ensures independent legal advice and assistance for vulnerable and disadvantaged Albertans in the justice system,” said Ryan Callioux, Board Chair for Legal Aid Alberta.

That sentiment was also echoed by the Law Society of Alberta, through the joint statement.

“Legal Aid Alberta plays an important role in the justice system and an independent, well-functioning legal aid system is essential to the administration of justice in Alberta. Accordingly, we look forward to participating in productive negotiations towards a new Governance Agreement,” Deanna Steblyk, President of Law Society of Alberta.

Return to bargaining table marked departure from earlier in the week

The joint statement and the extension of the funding for Legal Aid Alberta was a marked departure from the tone taken by both the LAA and the GOA earlier in the week.

At that time, LAA had said that funding was insufficient to allow for new certificates to be given to roster lawyers—effectively how lawyers are compensated for legal aid cases—past July 9.

Minister Amery, in a statement made on July 3, had claimed that LAA had sufficient funds available to cover LAA operations going forward.

Defence lawyers in Calgary had expressed concern over the consequences of legal aid services, both new certificates being issued and for legal aid duty lawyers to provide services.

Among the issues raised were around what would happen in the criminal system were what would happen to individuals when they are arrested and brought before a justice of the peace, what would occur during bail hearings, and what would happen to the legality of prosecutions of accused individuals without representation.

Chad Haggerty, a Calgary-based criminal defence lawyer and former RCMP officer, described how someone being arrested travels through the justice system.

He said that issues around the bail hearings, around the discovery of evidence, and other preliminary motions before a trial occurs would happen far slower and with questionable legality without the representation afforded by legal aid lawyers.

“When Legal Aid duty counsel positions are unstaffed, then that means individuals who likely have very little knowledge about the court system are left trying to figure it out to be guided by judges, or Google, and it creates delay,” he said.

“That means that accused people are facing charges longer than they need and the consequences that come along with that. But it also means that complainants are not having the matter dealt with.”

He said that in effect, the absence of legal aid services to Albertans—whether it was in the criminal system or family law system—would mean the collapse of the courts and of justice.

“It sounds melodramatic to say that this could result in a collapse of the justice system, but that’s effectively what might happen. I’ve been in court where there are 15 to 20 trials scheduled and they have courtrooms for six because there aren’t enough judges or there aren’t enough clerks, to staff those courtrooms,” Haggerty said.

“Every time there’s a delay, as we saw during COVID, during the last legal aid shutdown, the strike or the job action, everything gets pushed back and you have the volume increases for periods of time because nothing’s happening. So what will happen is cases that ought to be heard by the courts will end up getting withdrawn—charges withdrawn.”

He said this opens the potential for what is called a Rowbotham application, which allows for people who cannot afford to pay for legal representation to have the costs ordered to be covered by the government, and in effect taxpayers.

“Lawyers that are paid for at public expense are usually at a rate higher than the rate legal aid would pay. So it’s conceivable that the same people would eventually get coverage, or most of the people would eventually get legal coverage, but it would come at a greater cost to the average taxpayer,” Haggerty said.

He used the example of bail hearings, where the legal aid tariff in Alberta is relatively low at between $92 to $185 for lawyers, whereas a private cost is somewhere between $1,000 and $5,000.

Haggerty also said that no matter how much goodwill that lawyers could put towards the justice system, and that fundamentally there is a lot of goodwill that allows the system to function as it presently does, without some form of compensation it wouldn’t be feasible to provide legal services.

“The reason that we agreed to those [tarrif] rates is because it’s guaranteed payment,” he said.

Legal aid fight increases need for transparency in negotiations

Andrew Stewart, a member of the Criminal Defence Lawyers Association of Calgary, said that the effects would also stretch to his colleagues in family law without a concrete legal aid agreement.

“This is not just criminal matters, right? Legal Aid [Alberta] has a very robust family law practice. These are people who are not criminals by any stretch, but are people who are going through the most critical parts of their life: that is their marriage, there are children involved, and there may be a cessation of those matters as well, which is even more concerning to most people,” Stewart said.

“It’s even more disturbing that these people, through no fault of their own, are going through a process because of their lack of resources they’re getting.”

He said that in his experience the majority of people using the court system are using legal aid.

“I don’t have hard and fast numbers, but what I would suggest is the following: The vast majority of people who are coming into the court system are going to be utilizing the Legal Aid certificate program… or these people are brand new to the system, they don’t have a lawyer, and they’re going to utilize the services of duty counsel,” Stewart said.

“I would suggest that, again, maybe 20 per cent of people have private lawyers.”

Both Stewart and Haggerty said that the uncertainty over legal aid negotiations was due to both Legal Aid Alberta and the province.

“I think the biggest problem is… we’re not really sure what the issue is. What we don’t know for certain is what the proposed agreement is. We haven’t seen a copy of the proposed agreement and really don’t expect it,” said Haggerty.

“So, we can’t really speak to the specifics of the issues that are binding the negotiations, because defense lawyers and even legal aid staff members, the people at the sharp end of the stick, aren’t being provided with some concrete information. So we can’t have thoughtful, well-thought-out opinions on the topic, unfortunately. That’s a really crappy part.”

Stewart said that he took issue with the negotiating tactics that were used over the potential end to legal aid announced earlier in July.

“Part of the problem is that the government has demonstrated a capacity for saying one thing and potentially doing another, and that can be problematic when you’re trying to come to the table in good faith, trying to negotiate the future of a very, very important institution to ensure the smooth functioning of the justice system in a free and democratic society,” he said.

Referring to a July 3 letter sent by Minister Amery where it was proposed that funding might continue to Legal Aid Alberta, he said that there wasn’t at that time a solution to the impasse that had brought Legal Aid Alberta and the government to loggerheads.

“We’re not exactly sure what’s going on. They, the minister and the ministry, have talked about ongoing discussions, but we’re not privy to those discussions. We don’t have the minutes of these meetings. We don’t know what has been going on.”