Harsh indictment against Legal Aid

In Canada's justice system, it would be tough to find a more unsympathetic character than Richard Dow.

The former police officer was recently convicted of 11 counts of sexual assault on young women who were modelling at his off-duty fashion photography studio. The women ranged in age from the late teens to early 20s.

As an off-duty cop, Dow was an authority figure who inspired trust in the women who hired him to take their pictures. Taken together, all of the facts of this case make Dow rather loathsome. So much so that virtually no one cares it took nearly 70 months for the justice system to prosecute him.

Let's be clear, the wheels of justice turn slowly. Serious criminal cases are measured in years. And yet, 70 months -- almost six years -- is outside the definition of "normal."

At one point, the defence made an application to have the charges dropped on the basis Dow's constitutional rights had been violated. In a May 7 decision, Queen's Bench Judge Chris Martin dismissed Dow's motion, but nonetheless had stern comments for the justice system in general, and Legal Aid Manitoba in particular.

Of the four instances of delay Dow cited in his motion, two involved legal aid: a seven-month delay in 2007 to approve Dow for legal aid and another year-long delay in 2010 when Legal Aid cancelled Dow's assistance, forcing him to obtain a court order to have his legal fees covered three months before Dow's trial was supposed to begin, eventually causing it to be cancelled.

Martin concluded the first delay was not unreasonable because Legal Aid needs time to assess eligibility. However, the decision to cancel Dow's coverage, a few months before trial with full knowledge he would likely win court-ordered support, was unacceptable. Martin noted this decision had an impact well beyond this one case. It meant "the process of administration of justice in Manitoba was severely tarnished and other participants, including court, the complainants, the prosecution and the accused were negatively affected," Martin wrote. He went on to say if other cases are handled this way, Legal Aid's approach to assessing the needs of those facing criminal charges was "overly bureaucratic, overly self-centred and generally unresponsive."

You would think a decision such as this would send senior officials at Legal Aid scrambling to either find a way to ensure this kind of unreasonable delay does not happen again, or to at least find some reasonable explanation about how such an unreasonable event took place. That does not seem to be the case. Legal aid chairman Mario Santos, contacted last week, said he had not read the decision nor had anyone informed him of the wood-house spanking the judge had dished out.

After inquiring with senior officials in his office, Santos passed on a rather wordy explanation of the financial challenges facing Legal Aid. In particular, the office has to ensure coverage for some 24,000 cases each year, and funding from the federal and provincial governments does not cover their costs. All this is absolutely true.

However, Santos refused to deal with the central issue: Why would Legal Aid cancel Dow's coverage just a few months before a scheduled trial was to begin, knowing he would meet the standards of a court order to receive financial support from the province?

Martin's assertion is Legal Aid withdrew coverage with the express knowledge Dow would get his legal fees paid by the province after making application to the court. In other words, Legal Aid saw an opportunity to move Dow's legal fees from its own budget, which exists at arm's length from government, to the departmental budget and it was willing to trample the administration of justice in the process.

There is not enough money to cover legal aid expenses, of this there is no doubt. And similarly, there is no doubt Ottawa has almost completely withdrawn from its obligation to cost-share legal aid, leaving the provinces to carry the burden. But these indisputable facts do not justify Legal Aid's behaviour.

Sensing an opportunity to move Dow's legal fees from one budget line to another, Legal Aid gave no real thought to all those affected by this cynical strategy. Legal Aid officials were probably only thinking about Dow who, as mentioned earlier, is hardly worthy of any sympathy.

There could not have been consideration for Dow's victims, who had to wait much longer than necessary to see justice done. Or all the other complainants and defendants who had to wait because they had no judge or court.

There are only so many judges and courts; this case marks a reprehensible waste of court resources. Along with all of its bluster about getting tough on crime, the province should reassess the impact insufficient funding and questionable management at Legal Aid are having on the justice system. If not for people such as Dow, then for all those who genuinely deserve justice from their justice system.

dan.lett@freepress.mb.ca

Republished from the Winnipeg Free Press print edition June 4, 2012 A6