An internal study by Legal Aid Manitoba has revealed it often costs more — up to 50 per cent more — to have a public defender try a criminal case instead of a private lawyer.
This finding runs contrary to a long-held NDP government belief that private bar lawyers are more expensive. It was this belief that prompted the province to hire more in-house public defenders so that up to two-thirds of all criminal cases in Manitoba could be taken from the private sector into the public sector.
Mario Santos, chairman of Legal Aid Manitoba, said the study required government lawyers to track their hours much in the way private lawyers do. Then, those hours were divided into the total cost of supporting a government lawyer --including office space, support staff and benefits -- to arrive at an hourly figure.
Santos said he initiated the study because legal aid had never before tried to compare the true costs in both the public and private sectors. "Before this, we were comparing apples and oranges," he said. "It's an age old question, is it cheaper to use private bar lawyers or government lawyers? Before, we didn't have the statistics to answer that question, and now we do."
The study revealed that, contrary to previous government studies and policies, it can be significantly more expensive to use in-house public defenders on some cases, Santos said.
Although there is a range of fees paid to private bar lawyers, on average legal aid pays $80 an hour for most criminal cases, and caps the number of hours that can be charged for certain kinds of criminal cases. Santos said the review showed it can cost up to $125 an hour for a senior public defender to try a case.
"In some cases it does cost more (to use a public defender)," Santos said.
Lawyer Darren Sawchuk, president of the Manitoba chapter of the Criminal Defence Lawyers Association, said most private lawyers will not be surprised at the findings.
Sawchuk believes the study may still be underestimating the hourly cost of assigning public defenders to cases, which the association estimates at closer to $150 an hour.
"People like to say that private lawyers are greedy but it looks like we're at least $45 an hour cheaper than an in-house lawyer," Sawchuck said.
The findings of this most recent, year-long study is a setback for the NDP government's policy that put a priority on getting in-house lawyers to do criminal case work.
The latest study contradicts a 2004 report by former deputy attorney general Ron Perozzo, which recommended up to two-thirds of criminal cases be handled by government-employed lawyers.
The NDP government responded to Perozzo's report in stages. In 2005, it passed amendments to the Legal Aid Act that ended the right of accused persons to choose the lawyer that represents them. A year later, it hired six new public defenders to bolster the in-house staff of Legal Aid Manitoba.
However, in the interim the Legal Aid Lawyers Association won an important arbitration battle with the province that ensured they would be paid at the same rate as Crown attorneys. The decision led to a double-digit increase in wages for public defenders, and in the process changed the entire financial model at legal aid.
Attorney General Andrew Swan could not be reached for comment.