Cost of defending yourself | David Dorson

By David Dorson

Law360 Canada (October 6, 2023, 9:48 AM EDT) -- “You know, if you had had another $50,000 I could have got you off these charges.” This is what a friend said he was told by his lawyer as he waited for his sentencing. He got four years, his marriage dissolved, his highly successful career ended, and he lost most of his personal and professional connections, including some with siblings. More than a decade later he has not recovered.

The reality is that access to justice depends to a very large degree on how much money a person has. It may be that “nobody is above the law” but some people are certainly standing on higher ground.

On a TV program or movie, the cost of lawyers never comes up. In one famous series I remember watching five or six lawyers sitting in a meeting working on their client’s defence. “Who is shelling out thousands of dollars per hour for all that help?” was what I found myself wondering.

Let me say that I am not attacking how much criminal lawyers get paid. Some do very well indeed, but most are not raking in huge incomes. According to the average gross pay for a criminal lawyer in Canada in 2022 was about $117,000, or about $60 per hour. That’s decent but not exactly executive suite pay especially if you have to pay expenses from it.   

The court process is cumbersome.

The issue is not how much lawyers charge. It’s that the system is set up to require a lot of legal time, and therefore of client’s money. I remember being astounded when one lawyer told me, years ago, that a typical DUI charge might cost $75,000 to defend properly. It’s hard to do anything in court for less than $50,000. Legal aid is only available to people who have no real assets, and even then the lawyers are allotted only a set number of hours per case, often not nearly enough to organize a really solid defence, and that at very low rates. 

Legal fees are expensive also because cases take so long to get to court. It’s not unusual to wait more than a year to get a preliminary hearing or trial. Meanwhile, the lawyers meet every month or so, requiring several hours each time, just to keep the case going. If you do get to trial, lawyers need three hours of preparation for each hour of court time, so even a three-day trial can mean nearly 100 hours of legal time — at $300 or $500 or $700 per hour. And if you are going to trial and facing the prospect of years in prison plus many other bad consequences, you certainly want your lawyer to be well prepared!

Beyond that, hiring experts or having expert witnesses is also very expensive — paid by the client. If you want a medical or psychiatric assessment your lawyers will want to contract with the doctor to preserve attorney-client privilege, and you will have to pay for that yourself. It’s a bit like going to one of those restaurants where the steak costs $50 — and then you find that potatoes are another $10.

Money well spent?

I spent what seemed, and still seems to me to be a gigantic amount on my legal defence, more than most people earn in several years. And in the end — again, I’m not blaming my lawyers for this — it didn’t do me any good at all. I could have got the same result for half the money or less. But you don’t know that until afterwards.

Moreover, one reason why my case ended with a plea instead of a trial was due to cost. I was told that we had a reasonable Charter infringement argument. The police had likely committed an illegal search and were “unable to locate” some critical records. However, I was also told that pursuing this would cost at least another $100,000 and take at least another year (beyond the two years I already spent on restrictive bail), and that it was, at the end of all that, quite likely that a judge would rule that the rights violations were reasonable under the circumstances. If I wanted to appeal that decision, well you guessed it, another year and another six figures. Cases before the Supreme court of Canada can easily run up half a million in total legal fees, not including whatever is spent by the Crown to defend its position.

Too expensive for everyone

And it’s not just the money for lawyers. Usually being charged criminally will result in a large loss of income along with those legal costs. Being arrested often leads to job loss and a sharp decline in income — and to other costs such as challenges to custody of children, marriage breakdown and complying with bail conditions. 

The reality is that the vast majority of Canadians cannot afford a proper legal defence against a significant criminal charge. So what do the many thousands of people do who find themselves in that situation every year?

They mortgage their house. They spend all their savings. They borrow from friends and family. They forgo parts of what might be a good defence, such as expert witnesses or Charter challenges. And, most commonly, they plead guilty, even if they have, in principle, a sound defence available — as did my friend.

Crown attorneys are well aware of the financial pressure they place on defendants. Along with the threat of harsher punishment they use that tactic to push people into pleading guilty.

Enormous lifetime costs

What many defendants don’t understand is that your time in court is only the beginning of your financial disaster. Not only will your income decline, often precipitously, but so will your future income and pension benefits, so the lifetime loss can be enormous. If you are relatively young, or already have a relatively high income when arrested, a criminal charge can easily cost you, your family and children several million dollars (yes, million) over your lifetime. 

My friend who didn’t have the $50,000 for his lawyer saw his annual income drop by 70 per cent, and he was in his 40s when arrested. I estimate the lifetime costs of my arrest and conviction as well into seven figures. That doesn’t include the hundreds of thousands of dollars the public spent prosecuting and imprisoning me. That money that could be put to so much better purpose, including the welfare of victims and improved crime prevention.

David Dorson is the pen name of someone who went through arrest, case disposition, imprisonment and parole in Ontario a few years ago. Law360 Canada has granted anonymity because he offers a unique perspective on a subject that matters deeply to many readers, and revealing the author’s identity would make re-establishment in the community after serving his sentence much more difficult than it already is.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author's firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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