Winnipeg Free Press - PRINT EDITION

Legal Aid in turmoil

Murder case highlights dysfunction

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Sean Heickert has no lawyer, although it's not for lack of trying.

Facing a first-degree murder charge for the 2007 killing of a Thompson drug dealer, Heickert tried hiring a private lawyer through Legal Aid Manitoba, but was turned down. It is believed to be the first time someone facing a first-degree murder charge has been denied a lawyer of choice.

He was assigned two in-house public defenders, but they withdrew following his preliminary inquiry after Legal Aid refused to provide the resources they sought.

Now, Heickert is sitting in Headingley Correctional Institute outside Winnipeg wondering whether anyone will show up when his trial eventually starts. Heickert said he obtained a copy of an email sent to one of his public defenders in early August indicating that, despite having already turned down Heickert's request for a private lawyer, Legal Aid may not do the case either. "We're discussing if LAM can fund this file at all," Samuel Raposo, the acting deputy director of legal aid, wrote in the email.

"I guess they want me to represent myself," said Heickert.

 

Mario Santos, chairman of Legal Aid Manitoba, acknowledged there have been problems finding Heickert the right lawyer, in large part because the case is extremely expensive.

Factors such as the severity of the charge, the location and the fact many expert witnesses will be needed have made this one of the most expensive cases in recent history, Santos conceded.

Following the withdrawal of the public defenders, management at Legal Aid have been negotiating with a private bar lawyer and with in-house counsel to find the most cost-effective approach, he said.

"We're exploring options with other counsel," Santos added.

Heickert said he wanted to hire veteran Winnipeg criminal lawyer Bruce Bonney to represent him. Heickert qualified for legal aid but when Bonney applied for coverage, he was turned down.

"They never really gave me any explanation for their decision," said Bonney. An appeal of that decision was filed, but later abandoned because the date of Heickert's preliminary inquiry was fast approaching and "he needed a lawyer, fast," Bonney said.

Legal aid assigned two in-house public defenders to the case, Alan Libman and Nancy Fazenda. They worked on the case, according to Heickert, until just after the preliminary inquiry when they withdrew as defence counsel of record.

Heickert said the public defenders withdrew after legal aid rejected their request for financial resources to defend the case. This included funding for defence experts to counter prosecution experts, and to pay for lawyers to cover their Winnipeg cases while they worked a first-degree murder trial in Thompson, which was expected to last several months.

As for the original decision to deny Heickert counsel of choice, Santos said he did not have enough background to comment. However, Santos said that decision may have been different if legal aid knew in 2008 what it knows now: Public defenders are not always less expensive than private bar lawyers.

An internal study of legal aid revealed it costs up to $125 an hour to assign a public defender to a complex criminal case. Currently, legal aid pays only $80 an hour to private lawyers for the same work.

"If that had been known, it could have been a different decision," Santos said.

Those admissions do little to placate many private bar lawyers, who believe the Heickert case is the best example of the dysfunction that grips the legal aid system.

"This is just the tip of an iceberg," said Darren Sawchuk, head of the Manitoba chapter of the Criminal Trial Lawyer's Association.

"(Private lawyers) just cannot continue to finance these cases for them. They have to start paying the true cost of these complex cases."

Sawchuk said fewer private lawyers are willing to take on complex cases because of the fight that ensues to get fair payment for the tremendous amount of work required.

This dispute is just the latest in a series of mishaps and missteps that go back nearly a decade.

In 2003, private lawyers staged a brief strike, refusing to take legal aid cases to protest low fees. A review of the program by former deputy attorney general Ron Perozzo in 2004 recommended a majority of criminal case work be channelled to public defenders, and taken out of the hands of private lawyers. To that end, Perozzo recommended the hiring of 10 new in-house public defenders.

However, although the province supported the conclusions of the Perozzo report, it delayed fulfilling both recommendations. One reason could have been that in-house public defenders won a significant increase in salary in 2005. Unable to reach a contract for two years, an arbitrator boosted pay for starting public defenders by more than 30 per cent, and pushed the top rate for senior public defenders to $106,000 a year, plus benefits. The ruling was intended to pay public defenders comparable salaries to Crown attorneys.

The arbitration ruling significantly increased the cost of using public defenders for legal aid cases, eroding the logic Perozzo had used to argue for more in-house resources. Still, legal Aid hired six public defenders in 2006.

Private lawyers again started turning their back on legal aid work in 2007 and 2008, prompting the province to inject more than $2 million into the system. This increased fees to private lawyers by 40 per cent, and temporarily defused another showdown with the private bar.

Despite the increase in funding to legal aid, the system remains chronically underfunded.

Legal Aid Manitoba is currently struggling under what is forecast to be a $3-million shortfall in funding this year, the result of a precipitous decline in support from the Manitoba Law Foundation. Depressed financial markets have hammered the foundation's investment portfolio, which has led to millions of dollars less in funding for legal aid.

Attorney General Andrew Swan promised last spring to find the money to help cover the shortfall but signalled that cost savings would still have to be found within legal aid. This has produced a series of extreme, even absurd cost-saving measures.

In the category of the absurd, legal aid has told its in-house lawyers it will no longer pay for BlackBerry smart phones. The BlackBerry has become standard equipment for lawyers, as common now as legal pads and pencils were a generation ago.

However, some of the proposed measures were less absurd than they were extreme. Legal aid management proposed, for example, to cap fees for the most serious cases at $30,000. Given that it is well-known first-degree murder cases often require as much as $50,000 to properly defend, the proposal seems deliberately naive.

Santos said he reviewed that proposal with Swan and everyone decided it was not feasible to arbitrarily cap legal fees for the most serious cases.

"For now, we are being told to administer our program the way we have always done it," Santos said. "We will have to find a solution to this funding problem, and we expect to sit down to find that solution this fall."

dan.lett@freepress.mb.ca

Republished from the Winnipeg Free Press print edition August 28, 2010 A6

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