Law360 Canada (August 24, 2026, 2:50 PM EDT) -- A national civil liberties group has launched a Charter challenge against what it calls the “chronic” underfunding of criminal legal aid in Manitoba.

And a leading voice for criminal lawyers in the province is echoing the sentiment that funding has long stagnated.

The Charter challenge, which looks to obtain “declaratory” relief from the court, takes aim at the governments of Manitoba and Canada, which both fund legal aid in the province.

On Aug. 20, the Canadian Civil Liberties Association (CCLA) announced it had filed an application with Manitoba’s Court of King’s Bench “alleging that the underfunding of criminal legal aid … violates the Charter of Rights and Freedoms.”

This marks the first “systemic challenge” to the underfunding of criminal legal aid in Canada, states the CCLA.

The group states that Manitoba’s legal aid system — much like legal aid in other provinces and territories — is “woefully insufficient and has been for decades.”

The CCLA is seeking a declaration that the underfunding of legal aid violates sections 7, 11(d) and 15 of the Charter.

Section 7 speaks to individuals’ “right to life, liberty and security of the person,” while s. 11(d) stipulates that anyone charged with an offence has the right to be presumed innocent until proven guilty through a “fair hearing.”

Section 15 provides that everyone has the right to equal protection “and equal benefit of the law without discrimination.”

The CCLA’s application states that “these rights are systemically undermined by Canada and Manitoba’s chronic underfunding of criminal legal aid.”

“Over the past five decades, funding for legal aid in the province has not kept up with the increasing cost and complexity of criminal prosecutions,” it states. “Far too many vulnerable accused persons face the state’s bluntest instrument without legal representation.”

Manitoba’s criminal legal aid program, formally established in 1971, uses a combination of staff lawyers and private bar lawyers hired via certificates to take on cases.

“Whether you are rich or poor should never determine whether you are found guilty of a crime,” said the CCLA’s Shakir Rahim in a statement. “Legal Aid is supposed to protect that principle, ensuring that every person receives adequate legal representation. But in Manitoba, like many provinces and territories, provincial and federal government funding for legal aid is woefully insufficient and has been for decades. Income cut-offs to receive legal aid have not kept up with the cost of living, and what the program covers is far below the actual requirements of increasingly complex criminal proceedings.”

Rahim also noted this places a “particularly harsh burden” on Indigenous people, who face higher rates of poverty and are overrepresented in Manitoba’s justice system (not to mention in the rest of the country).

Manitoba has one of the largest proportions of Indigenous residents in Canada. According to Statistics Canada, Indigenous people made up 18.1 per cent of the province’s population in 2021 — the largest proportion of all the country’s provinces. (This does not include the territories, which have the highest numbers of Indigenous residents.)

Rahim went on to speak of impact.

“The result of underfunding is that Legal Aid Manitoba must ration its services. Many people who need funding do not receive it and are either self-represented or face financial ruin, even if they are found not guilty.”

According to Manitoba Legal Aid’s revenue statement for 2025, it received just over $30.7 million from the province that year. An official with legal aid said this would include a contribution to the province from the federal government. That amount was down from just over $33.6 million received in 2024.

In 2025, legal aid also received $546,000 directly from the Government of Canada. This was up slightly from the $331,000 received in 2024.

It also received revenue in smaller amounts from sources such as the Manitoba Law Foundation, contributions from clients and money from judgment costs, settlements and recoveries from client services.

A spokesperson with the Criminal Defence Lawyers Association of Manitoba (CDLAM) confirmed “the issue in [Manitoba] appears to be one of funding.”

Over the years, legal aid has had to pay private bar lawyers more and more in terms of compensation, but funding has not kept pace, said CDLAM’s director of communications Chris Gamby.  

“The [legal aid] tariff has been pretty stagnant over the last 25 years or so,” said Gamby. “I think it was 2003 when there was a job action that resulted in some increases. The tariff was increased again. That would have been, I want to say it was 2019 when we had our job action that resulted in an increase in the legal aid tariff, from $80 an hour to, I think it was $100, and then more recently it’s gone up to $105. The issue with funding, though, is that the funding hasn’t changed.”

While Gamby declined to comment specifically on the CCLA’s Charter challenge and what could result from it, he did describe a criminal justice system that has come under strain due to a lack of cash flow from above.

“Cases have become more complex; there is more surveillance video and things like that that lawyers are required to review.… [And] we’re going to be getting [police] body cams that are going to be distributed. That’s going to do two things: there’s going to be a whole administrative back end that is going to challenge firms in terms of dealing with the data, and then lawyers are going to need to review what might be hours of footage per case.… It’s going to require more man hours.”

And as cases become increasingly complex, lawyers are going to have to wrestle with the extra hours that will be needed to wrangle with these issues, said Gamby.

“Private bar lawyers have a tension in that your financial goals — whether it’s to earn a living or something more than a living — and your ethical goals, your ethical duties, will eventually come into conflict. A tension can be created where, okay, so [in] this case, this argument and this argument might be valid arguments, and they might be arguments that we should articulate … but developing those arguments is significant in terms of the time it’s going to take, and there’s no way you’re going to recoup that time on the basis of the [legal aid] certificate as it is. So, something different probably should be happening.”

Canada’s Department of Justice was asked to comment on the CCLA’s legal action. A spokesperson said in an email the federal government is “reviewing the notice of application and will respond in due course.”

“The Department of Justice Canada’s Legal Aid Program provides contribution funding to the provinces and territories for the delivery of legal aid services for economically disadvantaged persons,” they said. “This federal-provincial/territorial collaboration on legal aid is based on the shared responsibility for criminal justice by the federal government, under its constitutional authority for criminal law-making and procedure, and by the provincial/territorial governments, under their constitutional authority for the administration of justice, including legal aid.”

For its part, Manitoba’s government had little to say on the matter.

“The province would have no comment on a matter that is before the courts,” stated a spokesperson.

Like Gamby, the CCLA’s application speaks to the increasing complexity of criminal cases — and the ever-increasing workload resulting from it.

“Criminal investigations and prosecutions have increased in complexity and duration. The development of new technologies has brought new kinds of investigative techniques, evidence and experts.… Criminal investigations and prosecutions now routinely involve extensive disclosure, electronic communications, digital records, surveillance materials, forensic analysis, expert evidence, and complex evidentiary issues. Criminal proceedings are longer, require substantially greater preparation, and frequently involve numerous pre-trial appearances and motions that were uncommon or far less resource-intensive in earlier decades.”

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