UPDATE: Inadequate funding for legal aid puts fair trials in jeopardy, experts warn

Watch above: A provincial court decision has re-ignited a political fight. Judge Larry Anderson has ruled the province must provide lawyers to three people previously denied legal aid. Fletcher Kent reports.

EDMONTON — A judge’s threat to stay criminal charges against three Albertans unless the government pays for their defence highlights the need for more funding to legal aid, an Edmonton law professor says.

Steven Penney, a law professor at the University of Alberta, commented Friday on a decision released the day before by Assistant Chief Judge Larry Anderson of the provincial court.

Anderson had been asked to review three cases, all of which involve defendants who receive income from the government’s Assured Income for the Severely Handicapped program, but who do not qualify for legal aid. They claimed their right to a fair trial would be infringed if the government did not fund their defence against the serious and complex charges they face.

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“If the Crown does not confirm to the Court within seven days that Legal Aid has been directed to provide counsel…, at no less than the standard Legal Aid hourly rate, the charges… will be stayed,” Anderson said.

Penney said the decision is a wake-up call to the province, which funds legal aid.

“There isn’t enough money in the system to provide fair trials for Albertans who are charged with serious criminal offences.

“It really calls out to the government to look at this issue more carefully and to consider very seriously putting more resources into the system.”

The applicants in the case were denied legal aid because they make too much money, according to new income thresholds implemented by Legal Aid Alberta in February 2014, the decision says.

Currently, an individual must earn less than $1,348 a month and $16,170 a year to qualify for an lawyer through the agency, which is funded by the provincial government.

Those who are denied legal aid may end up representing themselves, even in serious matters, says Suzanne Polkosnik, president and CEO of Legal Aid Alberta. Or they may come to Legal Aid to ask for help to apply to the court to appoint a lawyer paid for by the government.

Legal Aid used to get one or two of those requests a year, Polkosnik says. Since February, they’ve received 40.

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“This decision very likely will cause that to increase even to a greater extent. For us, it means that these are unforeseen and unbudgeted expenditures that had not been anticipated and we’re certainly hopeful that it will cause some sort of reconsideration for our funding stream for this year.”

READ MORE: ‘Inadequate funding’ leads to 2nd resignation at Legal Aid Alberta in 3 months

Legal Aid predicts it will have a shortfall of $6 million next year, and $19 million the year after. In recent months, two of the group’s board members have resigned in protest to what they say is chronic underfunding.

Alberta Justice Minister Jonathan Denis has long said Ottawa is to blame for not paying its share.

“The federal government isn’t willing to step up,” Denis said in a statement. “As a result, we are willing to look at what we can do in relation to next year’s budget for Legal Aid.”

NDP MLA and leadership candidate Rachel Notley is now calling on Progressive Conservative leadership candidates to commit to increase funding for Legal Aid and to ensure the integrity of the province’s justice system.

“This situation is a direct result of this government’s long-standing negligence on Legal Aid,” said Notley.  “Chronic underfunding of Legal Aid jeopardizes the constitutional rights of all Albertans, especially our province’s most vulnerable citizens.”

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In his decision, Anderson wrote “it is not the court’s role to tell the government how public monies should be spent.” It can be costly when defendants don’t have a lawyer, he pointed out.

“The assumption that taxpayer dollars will be impacted negatively if counsel were appointed in any one of the cases before the Court ignores the cost to the taxpayer of not having counsel appointed. Anyone on the front lines of the justice system will recognize the important role that defence counsel plays in allowing matters to proceed efficiently. Judicial experience shows that when accused persons are not represented, the number of appearances tends to increase, the number of adjourned trials tends to increase and the length of trials tends to increase, each of which involves significant cost to the government through judicial, prosecutorial, clerical and security costs.”

The court shouldn’t have to intervene in such cases, said Kent Teskey, the lawyer who represented the three applicants.

“It is not leadership for Jonathan Denis to continually point for the last six months to the feds that it’s their problem,” Teskey said Friday. “He knows better than anybody that the buck stops with him.”

UPDATE: This story was originally published on Aug. 14, 2014, and was updated Aug. 15 to include Rachel Notley’s, Steven Penney’s and Kent Teskey’s comments, and portions of a statement from Alberta Justice Minister Jonathan Denis.


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