A potential strike is looming for Manitoba’s private criminal defence lawyers as they lobby the provincial government for their first legal-aid pay increase in 11 years.
Manitoba’s justice department hasn’t yet responded to recent recommendations that call for cost-of-living increases to the rates Legal Aid Manitoba pays to private defence lawyers, who essentially work on contract to advocate for the majority of people accused of crimes in Manitoba.
The $80 per hour rate hasn’t been adjusted to account for the cost of living in more than a decade. The last time it was increased was in 2008, after private lawyers went on strike. That could happen again, the Criminal Defence Lawyers Association of Manitoba (CDLAM) says.
"We’re considering multiple forms of job action, potentially including a work stoppage," said CDLAM president Gerri Wiebe. It’s not an option being considered lightly, she said.
"If private bar lawyers stop doing legal aid, the (justice) system would grind to a halt."
Most people accused of crimes in Manitoba qualify for Legal Aid representation, and the majority of those Legal Aid cases — nearly 70 per cent — are handled by private defence lawyers who bill Legal Aid Manitoba based on fixed rates that are set by provincial legislation. Staff lawyers employed by Legal Aid Manitoba take on the rest.
The 2008 strike sent the court system into "chaos" in less than three weeks, Wiebe said.
"That’s how these (current) tariff rates came about, so there’s definitely talk of what job action would look like... if we chose to do it," she said.
Wiebe met with Justice Minister Cliff Cullen in July about the issue and has been trying to schedule a follow-up meeting since.
In a letter to Wiebe dated Nov. 18, 2019, the justice minister’s office makes no commitment to address the legal aid rates. It says the government is still considering a review of the legal aid system that it commissioned last year. Lawyer Allan Fineblit submitted his review to the province earlier this year, but it hasn’t been publicly released.
An advisory committee that includes lawyers and justice officials makes recommendations to the government about the delivery of legal aid services every two years, but despite those recommendations — which included requests for the tariff to be increased according to the cost of living — the province hasn’t approved a raise.
If the government follows that recommendation, the private lawyers’ rate of pay would go up by about 17 per cent to roughly $93.60 an hour, Wiebe said. Crown attorneys’ salaries, meanwhile, have gone up by 33 per cent in the past decade.
The defence lawyers’ push comes as tensions rise in other legal aid systems across Canada. In B.C., legal aid staff lawyers went on strike Nov. 1 with a one-day walkout over compensation, and this summer, people marched in protest of deep provincial cuts to Ontario’s legal aid services.
Wiebe said the CDLAM knows it’s not a "popular cause" for any government to increase legal aid funding, but she said there will be a breaking point.
"Legal aid serves the people who can’t afford to pay a lawyer themselves, so you’re always talking about the marginalized or at least disproportionately marginalized. Indigenous people, (people with) mental health issues, the working poor or the unemployed," she said.
"We would be interested in working with the government to come up with solutions to efficiently and effectively implement Legal Aid but it needs to be fair on both sides. Definitely, adequate funding is needed, and that will be more than what they’re paying right now."
In its most recent annual report, Legal Aid Manitoba acknowledges an increasing volume of criminal cases has increased the cost of its services.
"The private bar continues to absorb the majority of these increases," the report states.
The recently-retired executive director of Legal Aid Manitoba said he agrees the private lawyers’ tariff should be increased.
"Legal Aid has run with enough efficiency and enough of a surplus to handle a modest increase in the tariff, so that should have been— but government has to approve the tariff increase, so it hasn’t happened. And it should happen," Gil Clifford said.
Katie May reports on courts, crime and justice for the Free Press.