Manslaughter and child custody cases at risk over legal aid job action, say judges

Lawyers in Calgary, pictured here, and Edmonton staged a courthouse walkout in September, protesting the lack of progress in their fight with the provincial government for increased Legal Aid funding.   (Colleen Underwood/CBC - image credit)
Lawyers in Calgary, pictured here, and Edmonton staged a courthouse walkout in September, protesting the lack of progress in their fight with the provincial government for increased Legal Aid funding. (Colleen Underwood/CBC - image credit)

Manslaughter cases are getting delayed, people without lawyers will be headed to trial and some Albertans are at risk of losing their children in custody cases.

Those are some of the alarms being sounded by two judges as the Legal Aid Alberta job action is set to enter its 16th week.

Provincial court Judge Susan Pepper expressed frustration several times throughout the day Thursday as cases in her courtroom were stalled, often because accused people were unable to get a lawyer.

"We have manslaughters getting adjourned because of the job action," said Pepper to the prosecutor and defence lawyers, who were in the courtroom and appearing virtually.

'An unresolvable issue'

One man, who was without a lawyer because of the job action, made his 15th court appearance wanting to set trial dates.

Pepper called the situation "an unresolvable issue" and said prosecutors would have to start setting trial dates even if an accused person wants a lawyer but cannot get one.

Meanwhile, Robert Philp, a retired judge and vice-chair of the Edmonton Community Legal Centre, wrote a letter to four Alberta defence lawyer organizations voicing support for increased funding to all legal aid programs.

"Blue-collar and even middle-class Albertans cannot afford counsel and are increasingly going to court self-represented," wrote Philp in the letter obtained by CBC News.

"The financial eligibility guidelines in Alberta are set around the poverty line, at a truly subsistence level."

Those heading to court self-represented are at risk of serious outcomes, including imprisonment, deportation, becoming homeless or losing custody of a child, Philip noted.

$22,000/year: too much to get help 

A person making more than $21,668 is ineligible to receive help from legal aid.

Legal Aid Alberta is a non-profit organization that provides legal services to Albertans in family, domestic violence, child welfare, immigration and criminal defence cases.

"We would urge the government of Alberta to increase legal aid funding so that eligibility guidelines can be based upon the actual ability of Albertans to pay, and ensure competitive tariff rates, which will permit lawyers to continue to take legal aid work," said Philip.

The lawyers, represented by organizations in Calgary, Edmonton, Red Deer and southern Alberta launched job action on Aug. 8 and are largely refusing to accept certain legal aid cases.

Lawyers taking part in the job action are asking the government for both an increase in rates paid on legal aid cases and for eligibility requirements to be changed so that more Albertans qualify for help.

Most of Legal Aid Alberta's roster lawyers have been refusing to take on new legal aid cases since Sept. 26.

'Decades of underfunding'

Last month, Justice Minister Tyler Shandro announced the province would increase the pay for lawyers on legal aid cases by $9.60 per hour until spring 2023, when the province's "comprehensive review" of eligibility guidelines and hourly rates is due.

But none of the funding is new money or provincial money, says Kelsey Sitar, vice-president of the Criminal Defence Lawyers Association.

"It was all federal money the province had coming to them already and they had to use to fund criminal legal aid," said Sitar.

More importantly, says Sitar, the 8.2 per cent increase "cannot make up for decades of underfunding" and "does nothing for impoverished Albertans trying to access legal aid services."

"Essentially, it took the financial eligibility cutoffs to what they were in 2010. Those cutoffs would have needed an additional 31 per cent bump to account for inflation alone."

In response to a request for comment, a spokesperson for Alberta Justice says Legal Aid Alberta has not reported any instances of Albertans not being able to access family or criminal lawyers because of insufficient funding, but didn't say whether the job action had impacted service.

"Alberta's government is open to continuing discussions with the criminal defence associations and further increasing the tariff rate, and we hope the four defence organizations reconsider or pause their job action," said Ethan Lecavalier-Kidney.