April 8, 2020

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Winnipeg Free Press

ABOVE THE FOLD

Meager legal aid promotes factory-like justice

Opinion

It is often said that government cannot solve a problem simply by throwing more money at it. While that may be true in some instances, in others it is a complete cop-out, a pathetic excuse to justify the decision by government to ignore a problem and deliberately starve it of the resources it requires. Problems like legal aid.

Private lawyers are again threatening to boycott legal aid cases if the provincial government does not increase the hourly rates at which they are compensated. The members of the Criminal Defence Lawyers Association of Manitoba called off a boycott of legal aid cases last month after being promised that government would discuss their concerns. Now, concerned that they are not being "taken seriously," the CDLAM is starting job action.

The first step in that job action is to refuse to take on new clients in bail court. This is a critical first stage in the administration of criminal justice, a safety valve that helps control the number of accused persons put into remand custody. Private lawyers perform the gross majority of all legal aid cases, including bail applications, and the withdrawal of their services would paralyze the court and correction systems.

There are a number of things the Progressive Conservative government can do to alleviate the concerns of private lawyers, but almost all of them involve spending more money. And that is something that neither the current or former provincial governments have been willing to do.

Decades ago, the provinces got 50 per cent funding for legal aid from the federal government. Over the ensuing years, Ottawa has essentially capped its support while costs have risen.

That having been said, the provinces have used the declining federal support as a crutch to essentially allow the legal aid system to fall into disrepair. And rather than just keeping support the same, the provinces have actually cut back on legal aid schemes.

Last year, Ontario announced a $133-million cut to legal aid that was intended to shift more cases from private lawyers to staff lawyers, including cuts to special rates paid to lawyers who represent clients with mental health issues, and Indigenous clients.

Inadequate legal representation is a problem that has created a system that puts expediency ahead of just and fair verdicts. (Mikaela MacKenzie / Free Press files)

Inadequate legal representation is a problem that has created a system that puts expediency ahead of just and fair verdicts. (Mikaela MacKenzie / Free Press files)

Similar stories are being written in almost every province. In British Columbia, cuts to overall legal aid funding paid to private lawyers have been accompanied by wage freezes to staff legal aid lawyers. In Alberta, budget cuts are threatening to push overworked staff lawyers to the breaking point.

In Manitoba, legal aid pays private lawyers $80 an hour, a rate that has not been increased since 2008. Total fees for any one case are subject to incredibly low caps that mean, when all the bills have been added up, private lawyers make considerably less than either auto mechanics or plumbers on an hourly basis.

Inadequate legal representation is a problem that has created a system that puts expediency ahead of just and fair verdicts.

It starts with the police, who routinely overcharge accused persons. Crown attorneys, looking to steer clear of a trial if at all possible, offer to drop most of the charges in exchange for a guilty plea on a core charge.

Legal aid staff lawyers, or private bar lawyers working on basic legal aid fees, often encourage their clients to take the plea bargain rather than having to endure the time and expense of fighting the charges at a trial.

If everyone agrees about the state of the justice system — and there is a near–consensus about this problem from all sides — then why aren't we pursuing a solution?

This is a process completely geared to helping prosecutors and defence lawyers dispose of cases with the least amount of time and effort because there just aren't enough resources to properly consider, argue and deliberate on those cases that really deserve a full and fair hearing in court.

The byproducts of this approach to administering justice are both horrific and inhumane.

It disproportionately affects the poor, who really have no other choice but to rely on whatever public resources are available to fund their defence. It similarly stacks the deck against people with lower education, or those who suffer from mental health issues that make it difficult for them to fully understand what it is the criminal justice system is trying to do with them.

In short, lack of resources for legal representation has turned our courts into an assembly line, where the goal is to move as many people through the system as quickly as possible.

If everyone agrees about the state of the justice system -- and there is a near-consensus about this problem from all sides -- then why aren't we pursuing a solution? This is the challenge that has virtually no dedicated advocate. At least, not one that the public believes is acting altruistically.

Lack of resources for legal representation has turned our courts into an assembly line, where the goal is to move as many people through the system as quickly as possible. (John Woods / Canadian Press files)

Lack of resources for legal representation has turned our courts into an assembly line, where the goal is to move as many people through the system as quickly as possible. (John Woods / Canadian Press files)

Private lawyers are, along with insurance salespeople and journalists, almost universally distrusted. If an association representing private lawyers, many of whom charge paying customers hundreds of dollars per hour, suddenly cries poverty, there aren't many taxpayers who are going to feel sympathy for their situation.

And then there is the fate of the accused. The public still generally believes that anyone charged with a crime is unworthy of much sympathy let alone taxpayer support to be defended in court. Political leaders are patently aware that there is no traction for them on this issue; providing adequate funding to legal aid will likely be resented, rather than applauded, by taxpayers.

No, you can't necessarily solve a problem as complex as this by throwing money at it. But it would be a nice start.

dan.lett@freepress.mb.ca

Dan Lett

Dan Lett
Columnist

Born and raised in and around Toronto, Dan Lett came to Winnipeg in 1986, less than a year out of journalism school with a lifelong dream to be a newspaper reporter.

Read full biography

History

Updated on Monday, February 3, 2020 at 8:11 PM CST: Relates latest story

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