The Advisory: Volume 8, Issue 4, October 2010

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Legal Aid Changes Spur Discussion

By Derek Sankey

A YOUNG ABORIGINAL woman in her early 20s living on the Blood Reserve near Cardston, Alta. had several run-ins with the law in the past and had always received help through Legal Aid Alberta (LAA) to navigate a complex legal system she understood very little about. But when her most recent charges were laid, related to the theft of a motor vehicle and traffic offenses, and she approached the same lawyer she had used previously, she was refused coverage through LAA due to recent changes that were implemented to the system.

The Crown proceeded by indictment on the charges for the mother of two young children, who has a low level of education and suffers from significant social disadvantage. Despite the fact that, in theory, she could face jail time and has no means to pay her lawyer of choice – Lethbridge criminal defence lawyer Ingrid Hess – her case was still refused coverage through LAA.

It’s the kind of story that’s being retold around the province by lawyers and social service agencies who are advocating to have the changes rescinded. At issue are two key points: A shortfall in funding for LAA has resulted in changes to the way the organization determines eligibility for its clients, while it has also taken away the ability of those clients to choose their own counsel.

Cases are most often referred to an “expanded duty counsel” — the staff lawyers in LAA offices in Alberta — and, based on a number of criteria including the likelihood of facing jail time, a decision is made as to whether they receive assistance. Under the old guidelines, a two-person family making $26,000 a year or less would qualify. Under the new guidelines that figure has dropped to $13,600. If they do receive coverage, they are appointed a lawyer of LAA’s choosing.

The reality is that Alberta’s legal aid system, like many jurisdictions across Canada, is struggling with a funding shortfall in the wake of the recession and tighter budgets. Legal Aid Alberta receives funding from the Alberta Law Foundation, provincial government and federal government. The amount provided by the Foundation (which is independent from the Law Society) varies from year to year because it is based on interest earned on lawyers’ trust accounts. While funding from the government has remained consistent, funding from Foundation dropped to $5.9 million for 2009-2010 from $14.8 million in 2008-2009.

On June 23, the Alberta Criminal Trial Lawyers’ Association tabled a petition that resulted in a vote during a province-wide special general meeting of the Law Society of Alberta asking LAA to rescind the changes to financial eligibility and the ability to choose counsel. A second resolution requested that “the Law Society publicly advocates in the public interest for an adequately, publicly-funded legal aid system as a statutory foundation that is independent of the government.”

The Advisory took this opportunity to survey a diverse segment of the population familiar with the recent legal aid changes to provide a snapshot of various perspectives on the issue.

INGRID HESS, Private Criminal Defence Lawyer (Lethbridge)

At a recent meeting with three colleagues in Cardston, one lawyer had not heard of any clients who didn’t receive the lawyer they requested, while two others were told by several clients they asked for a specific lawyer and did not receive them. Most were referred to duty counsel, if they were eligible.

In the case of the Aboriginal girl mentioned earlier, the old guidelines would have guaranteed that she not only received coverage (she was refused), but that she would have also been able to choose her counsel. “I find it shocking there was even a process undertaken (to determine eligibility) when facing an indictable offense – it should be automatic,” says Hess, who has worked closely with LAA’s Lethbridge office in the past. “I don’t want to participate in this system anymore.”

She says she’s frustrated with the recent changes to the legal aid system because it hurts the people who need it most – low-income, marginalized, disadvantaged Albertans who find themselves facing the legal system without any means to represent themselves. There are many layers of implications for people facing criminal charges — summary or indictable — from domestic violence cases to assault cases.

If every person charged now goes through duty counsel, who approaches the Crown to determine if they’re seeking jail, when it’s determined they will not seek jail time, the case is refused.

“The problem I see with that in a lot of cases like domestic violence is that even a first-time offender… could be looking at jail, in theory,” says Hess. “There’s no discussion of guilt or innocence. If the Crown says he’s only looking at probation and (the client) pleads not guilty, the Crown is not bound by anything – they could now be asking for jail – and then he’s on his own.”

LUCIEN A. (LUKE) KURATA, Retired Crown Prosecutor (Red Deer)

Lucien Kurata spent most of his career as a Crown prosecutor in Alberta and has watched the legal aid system evolve over the years.

“I saw many shifts and changes with the delivery of legal aid to individuals when I was active,” he says. After retiring, he started doing some pro bono work, including for Legal Aid Alberta. “In Alberta at the current time, there is a very serious Access to Justice issue,” says Kurata. “I was a Crown for many years and the playing field is no longer level.”

He sees several issues at stake. First, there is “tremendous economic pressure” on young counsel, who often can’t “stay in it” for the rates that are paid and under the rules that LAA imposes, he says. The second issue is the ability to choose counsel. “There has to be absolute freedom in selection of counsel with a cap on reasonableness,” says Kurata.

He believes there is an ethical duty for the Crown to be vigilant in ensuring that innocent people are not convicted — a task made more difficult with the recent changes to the legal aid system. “I think Legal Aid has to be entrenched by an act of the legislature and function absolutely independently. There has to be the highest standard of process, which is why Legal Aid should be administered by independent legislation, which makes things very difficult for the Law Society.”

DAVID BERGER, Executive Director, Boyle Street Community Services (Edmonton)

“Any time there are any constraints on access to counsel, especially for people who are marginalized, living in poverty, facing racism or not familiar with large systems, that’s when people in those categories suffer as a result,” says David Berger.

The changes to Legal Aid will create more barriers to those in need. People who face mental illness and addiction issues will only be further “bamboozled” by the system, he says. Aboriginals, who comprise about 70 per cent of his clients, are particularly impacted by the new guidelines because of the additional socioeconomic and social issues facing them, he says.

Boyle Street has been around for 40 years working with poor and disadvantaged people, including the mentally ill, and many of them require access to legal services, among many other types of assistance. The changes to the legal aid system will only further isolate and demoralize this segment of the population.

“Anything that limits access to those resources will result in more people getting lost in the system and not presenting defenses that are available to them,” says Berger. “The changes can have unintended consequences. Sometimes, getting incarcerated connects people with (additional) services, but it doesn’t always work that way. It’s not the way to go, but it happens.”

David Berger, Executive Director, Boyle Street Community Services (Edmonton)
PHOTO: Ken Armstrong

ROBBI ROBINSON, Legal Resource Agent, Siksika National Legal Aid

“It’s really knocked out a lot of our clientele that are under welfare,” says Robinson of the legal aid changes. Many of her clientele facing summary charges are routinely denied covered by LAA, while the staff lawyer has been “inundated” with files, where there is often a conflict because she cannot see two parties involved in the same case.

The one advantage she sees occurring as a result of the changes – and it has yet to be seen – is if the Siksika Nation can enhance other support services to combat the root of the problems facing its members, 70 per cent of whom are on welfare. She hopes the Nation will boost services such as anger management and substance abuse programs and men’s support groups.

There are other services she refers them to — Legal Service Centre in Edmonton, Calgary Legal Guidance, the Lawyer Referral Service, Native Counselling – but the bottom line is that more people are being excluded from accessing legal counsel.

“It puts pressure on the system … but hopefully it gets the rest of the programs and departments on Siksika to buck up their programs,” says Robinson. “Our goal is to make sure everybody leaves here with some kind of an answer to their situation.” It’s a job she admits is made more difficult by the exclusion of such a large number of people on the reserve from legal aid coverage.

JANE SMITH, registered nurse for 30 years in an Alberta community

Jane Smith (not her real name on condition of anonymity) spent years in the trenches, working with many patients who suffered from serious mental illness and socio-economic problems. They’re often receiving Canada Disability or Assured Income for the Severely Handicapped (AISH) and have few, if any, resources to pay for legal representation. Not to mention, they often do not understand their rights or how to access legal services.

“They really need an advocate,” she says. “They fall through the cracks in medicine, social services, housing – everyone – and they really do need to be represented because a lot of the time they are ripped off. That combination of just trying to find legal aid and get through the front-end barriers is enormous for them. Once they get that, there’s still a bill.”

DEBORAH HATCH, Criminal Defence Lawyer, Alberta Criminal Trial Lawyers’ Association President (Edmonton)

The ability of Legal Aid Alberta to function independently from government is critical to its mandate and the recent changes to the legal aid system have implications for Access to Justice far beyond the clients who are being left out in the cold, she says. Equally troubling is the fact the LAA now decides who is most appropriate to represent a client. There are greater issues at stake for the entire legal profession in Alberta and for society at large.

“It seems absolutely wrong, especially when you consider it’s the Law Society that regulates the profession; it is not supposed to be the Legal Aid Society,” says Hatch. “As a lawyer, I am really concerned that somebody is intruding onto the Law Society’s domain to make these kind of competency decisions about lawyers.”

She has been an outspoken critic of the changes and is baffled by what appears on the surface to be a funding issue that is now impacting the most vulnerable in our society by restricting access to justice in the most fundamental ways.

“To find this is the situation is really disgraceful,” says Hatch. “Governments have been talking about changes to the Legal Aid program in Alberta for years before there was any funding issue, so that is not the only source of this. Many lawyers have heard rumblings about changes the government would like to see and suddenly we’re seeing them now.”

Regardless of the rationale behind the decision to change legal aid guidelines, she is adamant about pushing ahead to have the changes reversed. Law Society members voted overwhelming in favour of the June 23rd resolutions and must now act, she says. If they aren’t implemented, another petition of the Law Society will require a paper ballot to be sent out to all lawyers in the province, with two-thirds’ support requiring implementation.

“We are very hopeful that the Law Society will decide to implement these resolutions,” says Hatch. “Who can say that this is wrong for poor people to have lawyers? This is an Access to Justice issue right here.”

Legal Aid Alberta Revenue Summary (2009 Legal Aid Alberta Review, November 19, 2009)

Revenues (Actual) 2004/2005 2005/2006 2006/2007 2007/2008 2008/2009 2009/2010
Province of Alberta* 20,280,045 20,246,784 32,444,784 34,608,031 43,131,441 43,131,441
Federal Government 11,617,955 10,751,216 10,715,216 10,737,969 10,678,559 10,678,559
Alberta Law Foundation 2,854,653 2,411,437 5,536,940 13,74,431 14,857,540 5,900,000
Client Payments 3,482,570 3,967,179 4,115,575 4,449,571 4,526,802 5,118,000
Total Revenue     $39,062,205 $38,143,646 $53,981,447 $64,581,511 $74,581,170 $65,128,000

(* Federal funding is paid directly to the Province, and transferred to Legal Aid as part of the provincial grant which, for 2008/2009 was $53,810,000.)

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