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Ian Savage, Criminal Defence Lawyers Association

Alberta defence counsel begin withdrawing services as part of legal aid protest

Thursday, August 11, 2022 @ 2:10 PM | By Ian Burns

Defence counsel in Alberta have begun a job action to protest what they say is a chronic underfunding of legal aid in the province.

The job action, which is spearheaded by the Criminal Defence Lawyers Association (CDLA) of Calgary, the Criminal Trial Lawyers’ Association (CTLA) of Edmonton and the Lethbridge-based Southern Alberta Defence Lawyers’ Association, began earlier this week with members not accepting files that would require them to provide bail-only services, courtroom duty counsel services, complainant counsel services or cross-examination of complainant services. This step will continue until Aug. 19, and if legal aid is not addressed by the government the associations’ members will withdraw all duty counsel services at the justice of the peace bail office from Sept. 1 to 15. The Red Deer Criminal Defence Lawyers Association has also voted to take part in the job action.
And CDLA president Ian Savage said the conflict could lead to lawyers declining more and more certificates, up to cases involving murder and violent crime.

Ian Savage, Criminal Defence Lawyers Association

Ian Savage, Criminal Defence Lawyers Association

“Both public and accused in those matters would expect to go to trial very promptly — well, if you don’t have a lawyer at all that is not going to happen, and justice will not be done. And that will be the government’s fault,” he said.

The job action has its genesis in letters the three organizations sent to provincial Justice Minister Tyler Shandro last month asking for a meeting to discuss legal aid funding. When no reply was given, they voted to take job action, leading to a meeting with Shandro on Aug. 8 which Savage described as “equal parts frustrating and depressing.” He said there has been a $55-million underfunding of legal aid in the middle two years of an agreement on legal aid reached in 2018 with Alberta’s previous NDP government — an agreement that Savage said the current administration of Premier Jason Kenney has “completely denigrated.”

“In effect legal aid lawyers have taken a roughly 75 per cent pay cut by virtue of inflation and all the extra work piled on to them over the years,” he said. “And just like for a police officer or prosecutor, they can’t just say that I have reached the maximum number of hours the government is willing to pay me to work on this murder investigation, so we have to stop working on it — that’s not how it works in real life. Defence lawyers will continue to work on a file and put their full effort not it and see it through to completion providing essential service when for most of that file essentially they are not getting paid for their time.”

Justice Ministry spokesperson Joseph Dow said in an e-mail that “ensuring every Albertan has fair and equitable access to the legal system remains a key priority for Alberta’s government.”

“We recognize and respect the importance of the work criminal lawyers do, and we are committed to working with our justice partners to make sure Albertans have access to publicly funded legal services in our province,” he said. “Work is already underway to modernize the legal aid tariff in our province. We’ve asked Legal Aid Alberta to conduct a review to address administrative efficiencies for billing, block fees and other simplifications of the tariff system, and we expect to receive the results of the review this fall.”

Dow said the government will be able to explore potential changes to tariff rates and the current financial eligibility guidelines as part of the development of the 2023 budget.

“Throughout this process, Alberta’s government will continue to engage our justice partners, including these organizations, to ensure we continue to prioritize the accessibility and long-term sustainability of legal aid in our province,” he said.

Savage said that budget process is one that the defence lawyers are more than willing to participate in, but they are asking for an immediate cash infusion into legal aid. He said that could be easily done by a nominal increase in the hourly tariff rate, which would recognize the crisis nature of the funding issue “and then we can address the budget in due course.”

““We are not working for 10 cents on the dollar anymore and our clients deserve better. We want to be comfortable and provide proper service just like any prosecutor or judge does,” he said. “Legal aid in Alberta has been chronically underfunded for years, if not decades, and now the chickens are coming home to roost.”

And the criminal lawyers’ traditional courtroom opponents have come to their defence, with the Alberta Crown Attorneys' Association saying in a statement it is encouraging Albertans to “understand and support the important work that can only be achieved through appropriately funded legal aid.”

“Lawyers in the defence bar who represent accused through legal aid deserve fair and competitive compensation. This work is difficult and often unpopular,” the association said. “Properly understood, it promotes just outcomes to criminal cases, and it also promotes their prompt conclusion, which all stakeholders support. It does this because professional expertise expedites decision‐making and focuses cases on the real issues in dispute. The justice system, like any system, only functions well when its component parts function well.”

Legal Aid Alberta (LAA) said in a statement that, while integral to the delivery of legal services, criminal defence lawyers who take LAA files on contract are not employees “and do not represent all private sector roster lawyers who do legal aid work.”

“We know this is a concerning time for Albertans attending provincial court, and we want them to know that we’re doing everything we can to support them,” the statement said. “So far, significant efforts to ensure a duty counsel lawyer is available either in person or virtually at all courthouses have been successful. At this time, we are not aware of any significant impact on Albertans. However, we are taking it one day at a time.”

But the LAA noted that if a withdrawal of services escalates or continues longer term, it anticipates a greater impact on the justice system and disadvantaged Albertans.

“We are at a pivotal moment when decisions about the future of legal aid are tough but necessary. While LAA is unable to change the rate of pay for contracted roster lawyers, we are included in these discussions,” the statement said. “In the meantime, we have work to do — to support low-income Albertans facing legal issues. We are also pressing forward with our commitment to modernize the tariff structure and continually improve LAA’s administrative processes for roster lawyers.”

More information about legal aid in Alberta can be found here.

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