Santos' legal aid exit likely good for all parties

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Mario Santos

After seven years as chairman of Legal Aid Manitoba, Mario Santos said it was time to step down.

"It was a good time to leave," Santos said in an interview Monday, just two days after it was announced via internal memo the province has relieved him of his duties. "I'm 60 years old. If I'm going to make any moves in my professional life, now is the time."

A good time for Santos to leave, and perhaps a good time for new leadership at LAM. Notwithstanding his comments about moving on to other professional challenges, it is generally believed in the legal aid offices that he wanted to continue as chairman. The details behind this decision are murky. All we do know is Santos did not want to leave. It appears, however, Attorney General Andrew Swan, who is ultimately responsible for the decision, wanted to go in a different direction.

LAM is not a top-of-mind issue for many people. It should be, of course. LAM is that mechanism that ensures every citizen, regardless of social or economic standing, will be given adequate legal representation. But the main narrative of the legal aid story -- which usually involves battles between the federal and provincial government, or between government and private bar lawyers -- generally fails to evoke much passion. For many of us, it's a sideshow in which politicians, lawyers and criminals, all loathsome characters, battle each other for a few coins.

Lord knows Santos tried to make this a more compelling story. A longtime NDP supporter, Santos enjoyed a much higher profile during his seven-plus years at the helm of legal aid than his predecessors. He eventually became the chief spokesman for the Crown agency, and even established an office for himself within the LAM structure, something that had never been done before his tenure.

How has the agency fared during that time? It would be unfair to attribute all of the problems facing LAM to Santos. For many years now, it has been virtually impossible to write a story about legal aid without using the words "crisis" and "turmoil." Caseloads are skyrocketing and money is constantly running short. Part of this is due to a withdrawal of funding support from Ottawa, which used to cover half the total cost of legal aid programs across the country. Now, Ottawa pays for about one-third, and keeps dropping.

But even within the context of a funding crisis, Santos managed to make a mess out of legal aid. Under his watch, LAM was singled out by sitting judges several times for failing to live up to its mandate. In one case, LAM allowed a Thompson man facing a first-degree murder charge to go without counsel for the better part of a year. In another, a Queen's Bench judge slammed LAM for manipulating proceedings by denying an accused person coverage and forcing the court to step in and order the province to fund the man's defence.

Private bar lawyers aren't always the most sympathetic group, but it's not hard to understand why they came to mistrust Santos. In the spring, Santos made headlines by ordering private lawyers to attend, without compensation, overnight calls involving young offenders in custody. The private bar reacted with loud, angry indignation. Santos remained resolute that this work should be done "pro bono" but in the end, LAM had to do most of these overnight calls itself.

Later, during the summer, private lawyers complained the Winnipeg Police Service was threatening to charge lawyers who did not attend overnight calls. The biggest professional groups wrote a letter to the WPS decrying these tactics. Remarkably, after kicking off this controversy with his directive, Santos was one of the signatories to that letter complaining about the police tactics. It's not hard to see why many lawyers saw confusion as the hallmark of the Santos era.

The end result is that right now, fewer private bar lawyers are taking on legal aid work, and more uncertainty exists about who qualifies for legal aid coverage. LAM has effectively refused to take on high-profile, complex criminal cases because the costs of providing an adequate defence run into the millions of dollars. There was no plan for who would pay to defend the accused in those cases, only a policy that it wouldn't be LAM. That was a clear abrogation of LAM's duty to accused persons before the justice system.

Santos' departure is in almost all respects a chance for Swan to improve an agency that is an essential part of the effective delivery of justice services. LAM exists to ensure the constitutional right of all Manitobans to an effective defence, and to ensure there is a level playing field, no matter the case or charge. LAM often failed to fulfil those parts of its mandate under the oversight of the last board chairman. No new leader will fix all the problems facing legal aid, but the right person could remove the cloud of confusion enveloping the agency now.

dan.lett@freepress.mb.ca

Republished from the Winnipeg Free Press print edition October 16, 2012 B1