Provinces must prioritize legal aid to meet top court’s time limits: lawyers

VANCOUVER — Provinces have mostly ignored legal aid as they increase resources to meet strict time limits imposed in a landmark Supreme Court of Canada ruling, the head of the Criminal Lawyers Association says.

Anthony Moustacalis said while the so-called Jordan decision of July 2016 has forced provinces to make changes ensuring delays don’t exceed 18 months in provincial courts and 30 months in superior courts, defence lawyers who take on legal aid cases have been left behind.

“In Ontario, the provincial government has appointed more provincial judges and (Crown counsel). And instead of funding legal aid to cover more of the work of private counsel they’ve funded legal aid to put duty counsel in the jails to make sure that people who are arrested get their bail hearings organized a bit faster.”

Judges are now requiring defence lawyers to submit more detailed written arguments before starting a trial to accelerate proceedings but the extra workload isn’t matched with more legal aid, he said.

“You get a limited number of hours per file and that was based on the average demands on a file in the 1980s” but more disclosure and meetings with judges and the Crown, along with increasingly complex scientific evidence, already chew up valuable court time, Moustacalis said.

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Legal aid covers about 55 to 60 per cent of all cases in Ontario, far below what’s required for people too poor to afford basic necessities let alone a lawyer, he said.

“If legal aid was properly funded it would be more like 80 per cent of all cases. Eighty per cent of people who are charged have either mental health or drug or alcohol dependency issues or a combination thereof.”

About 10 to 15 per cent of Moustacalis’s cases involve legal aid, he said.

Moustacalis said his association has been lobbying the federal Justice Department on legal aid funding and other issues in keeping with timelines established in the Jordan ruling, which set aside the drug convictions of British Columbia resident Barrett Jordan over unreasonable court delays.

Issues stemming from delays were on top of the agenda at a recent meeting in Vancouver of Canada’s justice ministers.

The Justice Department said in an email statement that it could not comment on communication with the Criminal Lawyers Association but it is working with provinces and territories to reform the system and make it as efficient as possible. 

“At the September meeting of federal, provincial and territorial ministers responsible for justice, ministers reinforced this commitment, agreeing on the need for urgent and bold reforms to reduce delays in the criminal justice system.”

British Columbia Attorney General David Eby said justice ministers at the meeting were troubled by court delays, especially because over 200 cases have already been tossed since the Jordan decision.

“The concern is universal across the country about the impact that this Supreme Court of Canada decision has in really raising the disturbing possibility of people who have allegedly committed serous offences walking free,” Eby said.

He said legal aid is one of several issues leading to delays in B.C. courts.

“We have a lot of people showing up in court self represented who are taking up a lot of court time and bogging things down because they don’t know what to do.”

British Columbia’s former Liberal government slashed legal aid in 2002 and continued cuts that had lawyers protesting while numerous studies concluded lack of access to justice caused backlogs. 

Eby said the provincial budget next February would provide some money for legal aid and other reforms.

Vancouver criminal lawyer Richard Fowler, a member of the board of governors of the Trial Lawyers Association of B.C., said legal aid cuts have meant senior lawyers can’t take on junior lawyers who need training in court so their cases don’t get thrown out over mistakes due to inexperience.

“It’s the only way you can learn,” Fowler said. “It’s an apprenticeship system. The Crown does it, police officers sometimes come and watch other officers testify.

“There has to be an injection of capital into legal aid to encourage and to facilitate senior counsel, experienced counsel doing legal aid cases like murder cases, manslaughter cases and sexual assault cases,” said Fowler.

“The immediate response to Jordan is we need more judges and we need more prosecutors,” Fowler said. “Everybody’s response is to do that and they did that in Ontario and Quebec. You can have all the judges in the world, you can have all the prosecutors in the world. But if you don’t have defence counsel that are properly trained, properly skilled, those cases are not going to run smoothly.”

— Follow @CamilleBains1 on Twitter.

Camille Bains, The Canadian Press