Alberta’s injustice system

August 5, 2022

Last month Alberta’s Criminal Trial Lawyers Association wrote the Alberta government warning of a looming justice system disaster and requested an urgent meeting to discuss adequate funding for Legal Aid Alberta.

This situation is no chicken little; the sky is falling, and it will crush fairness in Alberta’s courts.

Legal Aid Alberta has been so underfunded and choked of resources that the province risks sliding into a model of frontier justice, where the innocent are convicted, and only the rich and powerful can defend themselves in court.

How fair is an adversarial legal system when only one adversary has real access to justice?

In Canadian courts, a David and Goliath story plays out every day.

The state is the giant. Its prosecutors are highly skilled and well-trained. The Crown, supported by the police, has the resources to investigate and collect evidence, fly witnesses across the country, hire experts, bring complex legal motions, and appeal losses.

On the other hand, the accused is rarely a trained lawyer and is much more likely to be marginalized and impoverished. An accused person fights an uphill battle, hamstrung by oppressive bail conditions and a lack of resources. No accused has a private team of investigators, a legion of file clerks, or the ability to hire costly experts.

In real life, David never defeats Goliath.

And now, in Alberta, the government has pressed its finger even more firmly on the scales of injustice by starving the provincial legal aid system.

Jason Kenney took a play out of Doug Ford’s playbook when he assumed power in Alberta. Kenney’s Conservative government tore up the previous NDP government’s planned funding increases and slashed legal aid funding by 35 percent.

Kenney’s funding cuts have caused Legal Aid Alberta to tighten its belt to the point of starvation.

In Alberta, the financial eligibility for legal aid is $1,668 monthly and $20,021 annually, meaning only those who live below the poverty line qualify for a defence lawyer. Legal representation, a necessity to ensure fairness in our adversarial system, is simply out of reach for most people.

To compound the injustice, Legal Aid Alberta has one of the country’s lowest hourly pay rates. Even if an accused is poor enough to qualify for legal aid, they may not be able to find a lawyer. Defence lawyers have never viewed legal aid as a route to quick riches. Instead, we see it as an essential public service reflecting the criminal bar’s best traditions. But legal aid remuneration is so low that it quickly becomes a ticket to insolvency. Just look to Red Deer, where only six lawyers can take on legal aid cases.

The criminal defence lawyer brain drain is a real problem across Canada. It has never been harder to be a defence lawyer. Court administration has downloaded more procedural responsibilities on defence counsel as governments slashed legal aid funding. Prosecutors, judges, and other court actors were guaranteed a salary during COVID shutdowns while defence lawyers saw their livelihoods adjourned.

The exodus of lawyers from the defence bar has already cost the justice system decades of skill, expertise, and knowledge — and the Alberta government is gleefully compounding this crisis.

Despite the crumbling Alberta justice system and looming crisis, there has been no response to Alberta’s Criminal Trial Lawyers Association’s request for an urgent meeting.

This inaction contrasts with the rapid government action when their prosecutors begged for help.

The government responded quickly in April when the Alberta Crown Attorneys’ Association raised the possibility of a strike over increasing caseloads, inadequate compensation, and poor mental health support. Within days of the prosecutors’ threats, the Alberta government entered long-term contract negotiations with their prosecutors and promised to double the number of articling positions, provide additional mental health support, and “made a market adjustment to compensation.”

Why has the Alberta government ignored the warning of defence lawyers while bending over backwards to assist its prosecutors?

The answer is simple. The UPC in Alberta, just like Doug Ford’s Conservative government in Ontario, doesn’t care a damn about fairness. They are happy to play Goliath, even if that means the people living under their thumb suffer.