It is hard to criticize a government that ponies up additional money to meet an immediate need, even if the amount of money is completely insufficient for the size of the problem.
Such is the dilemma posed by Manitoba Legal Aid. This week, the province announced an additional $2 million to increase legal aid hourly rates for private bar lawyers by 40 per cent.
No one should sneer at a 40 per cent increase, especially when there was the very real possibility that private lawyers would simply stop taking on legal aid cases. That was the doomsday scenario addressed by this week's funding announcement.
However, no one believes this gesture has "fixed" legal aid. In an interview, Justice Minister Dave Chomiak agreed the increase was insufficient to meet the challenges facing the legal aid system. However, he said it was necessary to stop the "drift" of private lawyers away from legal aid cases.
"It looks on paper like a big increase, but in reality, it's only a catch-up," Chomiak said. Indeed, one might even suggest it's not even a catch-up. Although hourly rates have improved, there are just too many other pressures threatening to implode the system.
Although Legal Aid Manitoba described the funding increase in terms of its impact on hourly rates, the gross majority of legal aid work is paid by block fees. There is a schedule that outlines how much lawyers are paid for a particular type of charge; regardless of the circumstances that might make each case unique, each robbery and assault is provided the same amount of funding for legal representation.
The greatest knock against this system is that it was an incentive for lawyers to advise their clients to plead guilty. Given that the block fee remains the same regardless of the length of the proceeding, many lawyers found it was simply not cost-effective to drag out a proceeding. Lawyers handling more complex criminal cases can apply to a case management committee to get additional funding, but it's a crap shoot. It remains to be seen whether this additional money is enough to encourage some lawyers to try cases instead of taking the easy way out.
And it is still difficult to get funding for expert reports or testimony, which means the Crown remains the only party to a trial that can consistently produce third-party analysis to back up its claims.
The province should not be condemned for all these shortcomings. As has been repeatedly argued by Chomiak and his predecessors, legal aid began in the 1970s as a cost-shared program between the federal and provincial governments. Today, however, Ottawa provides just 20 per cent of total funding, leaving the gross majority to the provinces.
Manitoba has increased funding to legal aid four times now since 1999. In that time, there has been no appreciable increase in federal contributions. This is an odd development, given that federal governments find it quite fashionable to compose laws that create all sorts of new criminal offences, along with measures that prescribe longer sentences.
And yet, successive federal governments have felt it unnecessary to provide additional money to make sure those caught in the web of the new crimes, and who are facing those longer sentences, get a fair trial with quality legal representation. There is a strong suggestion the current federal government equates the guarantee of a fair trial to "being soft on crime." As a priority, it's not hard to imagine that for the current federal government, increased legal aid funding is right up there with providing federal inmates with High Definition televisions.
Jurisdictional conflict, and the willing paralysis that often ensues, has been a chronic feature of federal-provincial relations in Canada. The Constitution draws a line between federal and provincial responsibilities, but over the history of this nation we have seen many scenarios arise that were unforeseen. The result is that even when there is a clear public responsibility, it is not clear which level of government should be responsible.
Legally, there is a strong case to be made that legal aid is a provincial responsibility. However, Ottawa certainly has a moral obligation to see that everyone charged with an offence in this country gets a fair trial.
The justice minister suggested it is doubtful "we'll ever go back to the heady, 50-50 days of the 1970s" as far as legal aid funding is concerned. That may be a frank assessment, but it is a deeply worrisome admission that Manitoba believes it will never be able to address legal aid woes alone.
If Manitoba cannot adequately fund legal aid, and Ottawa by its silence indicates it will not, then justice will suffer. The only question is, does anyone care?
dan.lett@freepress.mb.ca
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