The right to a lawyer

Can justice be served if defendants are forced to represent themselves?

RAE CORELLI November 24 1997

The right to a lawyer

Can justice be served if defendants are forced to represent themselves?

RAE CORELLI November 24 1997

The right to a lawyer

Can justice be served if defendants are forced to represent themselves?




On the cloudy and unseasonably warm morning of April 28, 1994, in the New Brunswick capital of Fredericton, a judge took Jeannine Godin’s three small children away from her and gave them to the provincial ministry of health and social services. The ministry had requested a six-month custody order on the grounds that the 30-year-old welfare mother could not provide proper care. The judge agreed. That day in court, the government had a lawyer. Godin did not. So she simply went home, bewildered and angry, to the neighboring village of Keswick. “It was a nightmare,” she recalls. “That’s what it was, a nightmare.”

There is a good deal of skepticism harbored by the public and politicians alike about the overall value of legal aid.

—Roy McMurtry, then Ontario attorney-general, Feb. 13,1976

It was also the beginning of a long legal battle that will be decided once and for all by the Supreme Court of Canada, probably next spring. Lie issue, simply put, is whether parents are entitled to state-paid lawyers if

they want to fight attempts by government agencies to take custody of their children. If the Supreme Court decides they are, then lower courts would be barred from acting on ministerial custody applications unless the parents are accompanied by their own lawyers. And it would be the first time that the nation’s highest court had established an unqualified right to counsel for a specific group within the population.

But the implications of such a ruling would go beyond the legal needs of parents. There are thousands of custody battles similar to Godin’s across the country every year and a majority of the people caught up in them are indigent. That means the responsibility for providing lawyers to handle those disputes would fall mainly on the nation’s 11 provincial and territorial legal aid plans.

Most of these agencies, bled dry by government cutbacks in social services, are being forced to turn away more and more people seeking help with family law cases in order to continue representing defendants facing imprisonment. Even in the criminal law field, legal aid applicants are finding it more difficult to qualify because the amount they are allowed to earn is being increased. “Unless the government puts more money in,” says Calgary lawyer John Bascom, “[former prime minister Pierre] Trudeau’s ‘just society’ will only be a memory.” Thirty years after the birth of the system dedicated to the rights of the poor, there is widespread talk of a crisis.

Jeannine Godin’s trek into legal history really began a day short of six months after her first court appearance when, on Oct. 27, the ministry applied to have the custody order extended for an additional six months. The Court of Queen’s Bench summoned her once again. “It’s hard to describe the way I felt going into that courtroom alone,” she now says. “I was scared, I was really terrified.”

She was not alone for long. Thomas Christie, taking his turn as a provincial legal aid duty counsel—the jailhouse and courtroom lawyers who give people on-the-spot advice about their rights and options—told Godin he thought she should have her own full-time lawyer. He persuaded the judge to adjourn the case so she could ask legal aid to supply one. “My point all along,” says Christie, “has been that here we’ve got one or two Crown prosecutors with their expert witnesses— psychologists and doctors and social workers—all traipsing through court, and you’re going to tell me that it’s fair for a welfare mother to try to mount a case against that?” However, on Nov. 2, legal aid turned Godin down. The judge, ruling that she could have a fair hearing without a lawyer, renewed the custody order and reserved judgment on Christie’s argument that legal aid had violated the fundamental justice guarantee in the Charter of Rights and Freedoms by refusing to help. In June, 1995, Godin got a break—the children were returned to her when the ministry said it was satisfied that her “parenting skills” had improved. But in December, the judge issued a written decision declaring that legal aid had not contravened the charter.

However, Christie was not finished. Arguing that Godin had been denied her constitutional rights, he took his fight to the New Brunswick Court of Appeal. Last March 14, the court voted 3 to 2 to dismiss the appeal. (One of the dissenting judges was Justice Michel Bastarache, since appointed to the Supreme Court where his participation in the appeal process will preclude him from sitting when Godin’s case gets there). Two months later, Christie applied for leave to appeal to the Supreme Court. It was granted on Oct. 16, setting the stage for a showdown that could have long-range implications for the design, calibre and availability of legal services across the country.

On March 31,1967, when Jeannine Godin was only three years old, Ontario formally launched Canada’s first legal aid plan amid the flag-waving enthusiasm generated by Centennial Year and Expo. That plan gave certificates to qualified applicants who took them to a lawyer willing to work under a relatively modest fee schedule. Other provinces and the territories, imbued with an equal passion for justice and fair play, joined the crusade.

The Supreme Court takes on a challenge to the legal aid system

By the mid-1970s, low-income or indigent Canadians from coast to coast, mainly those charged with crimes, could get help of one kind or another from a mix of legal aid staff lawyers and members of the private bar. (As the years passed and the money flowed, legal aid branched out to embrace civil cases involving refugees, abused wives and the mentally ill.)

“All persons must have access to lawyers in appropriate circumstances,” proclaimed Halifax lawyer William Cox, chairman of the committee that proposed the Nova Scotia plan in 1971. Otherwise, said Cox, “one may expect continuing and growing disrespect for the law.”

But what gradually developed over the following 25 years was public disrespect for legal aid. The news media soon began carrying stories about private lawyers making hundreds of thousands of dollars from legal aid, about people with long criminal records qualifying again and again for counsel at the taxpayers’ expense, about the soaring cost of the whole venture.

By 1987, total spending on legal aid had reached $210 million and it more than tripled in the next eight years, hitting $650 million in 1995. One reason for that jump was an increase in the crime rate; between 1991 and 1995, the population of federal prisons alone rose by 25 per cent. A second reason was legal aid’s earlier and ambitious expansion into the civil law field. A third factor was the recession-driven, nationwide growth in welfare and other social assistance programs that, ironically, made far more people eligible for help under legal aid’s income-based eligibility rules. While the number of cases nationally rose by 52 per cent between 1987 and 1993, legal aid’s costs inexplicably soared by 175 per cent.

But in the early 1990s, governments, sensing that the money was getting out of hand, had begun applying the brakes and the effects finally showed up in 1996 when overall spending by the country’s 11 legal aid plans fell to $610 million. An austerity-conscious Ottawa had frozen its contribution to the cost of legal aid— the amounts in 1993 varied from the 68 per cent for Nova Scotia to the 21 per cent received by Ontario and Alberta. And most provinces, mindful of a national swing to conservatism,

had already taken an axe to social programs.

Nearly all of the provincial plans have had to eviscerate their budgets, lay off support staff, raise the minimum income for eligibility, and reduce or discontinue services in fields such as impaired driving, residential evictions, divorce, refugee applications and deportations. “Legal aid,” says a 1995 report by the federal government’s National Council on Welfare, “is in trouble everywhere in Canada.”

There is ample evidence to support that blunt assessment. In British Columbia, the Legal Services Society has had to turn down 3,000 applicants for help so far this year. By early next year, Nova Scotia Legal Aid may have to quit issuing the certificates that allow people to pick their own private lawyers, and dump its entire caseload on 65 staff lawyers who have not had a raise in four years. The Ontario Legal Aid Plan is struggling to pay off an accumulated $82-million deficit created over the last two years. Since the plan’s inception, the province had automatically paid whatever legal aid owed in overhead and lawyers’ fees at year’s end. In 1995, Queen’s Park abruptly cancelled that policy and put legal aid on a fixed budget, compelling the plan to pay off the debt itself.

Yet the most disturbing consequence of legal aid’s disarray is that thousands of people, not earning enough to hire a lawyer but too much to qualify for assistance, now are being tried without representation, convicted and imprisoned each year. “More unrepresented people are appearing in our trial courts and that is a major concern,” says Roy McMurtry, now Ontario’s Chief Justice. ‘We’re also concerned about the quality of justice being dispensed.” No province has yet begun to keep statistics. “But,” says Robert Holden, provincial director of the Ontario Legal Aid Plan, “it’s a huge problem.”

Toronto’s century-old former city hall is a fortress-like pile of sandstone and granite with turrets and a huge stained-glass window overlooking a rear quadrangle. It is 1:30 on a late-fall afternoon, and since the three floors of the provincial criminal courts do not reconvene until two o’clock, no justice is being dispensed although a lot of people are waiting for it. In the tiled and s echoing corridors, in base| ball caps, jeans, running g shoes and windbreakers, 5 they sit on wooden benches, I pace back and forth or lean I against the wall. There is fear □ here. But there is boredom 1 and anger as well. Everys body has pieces of paper— summonses, subpoenas, appearance notices—their tickets to the next stage of the criminal process. Most of the women here this afternoon are wives or girlfriends.

A sign on the window of the legal aid office notifies applicants that they must pay a fee of $25. The staff says that people frequently show up, read the sign and just leave. Nearby, a man in his early 30s, muscular arms crossed, awaits his turn. He declines to give his name or say what he is charged with. “On a Friday, I was here waiting, like now, and by the time I was the next one up they said they were closing. So I had to wait two weeks to take another day off work and they said I didn’t have the right papers. So here I am again.”

He has plenty of company. Ray Louison, a soft-spoken 23-year-old community college student in gold-rimmed glasses, is accused of theft and sexual assault. A judge will set his trial date at a hearing in a week’s time and he has cut a class to seek legal aid. “I’ve never been here before and it’s kind of scary,” he admits. He hopes one day to be an accountant. Wayne Brott, 34, who says he broke his hip, pelvis and back in a 1982 truck accident and has not been able to work since, is less reticent. “I’ve been in and out of the system ever since,” he says, for theft and possession of stolen goods. Is it hard to get legal aid? “It’s difficult but it’s not hard,” he says enigmatically.

Further along the bench is a 24-year-old downtown bicycle courier. “They say I robbed somebody and I attacked somebody,” he says. “I’m afraid of losing my job and I’m afraid of going to jail. I’ve never done anything to nobody.” If he doesn’t qualify for legal aid and cannot afford a lawyer, what will he do? “I guess they don’t care what you do,” he shrugs.

A man in his 40s with black hair and a bushy moustache has reached the head of the line. He is charged with dangerous driving. “I talked to a lawyer and he says it’ll be $2,500. Me, I told him I just could afford $300 and he said forget it” Does he think he will qualify? “Probably not.”

The most a single person can earn annually and still get legal aid varies widely across Canada. The lowest maximum, according to the 1995 National Council of Welfare report, was $4,716 in Newfoundland. The highest was Ontario’s $15,800. British Columbia came next at $13,080 (for Vancouver residents; less in the rest of the province) and Nova Scotia was third at $12,804. Several provinces have since lowered the threshold, disqualifying thousands.

Numbers like that have long aroused protests among groups representing lowwage earners and debt-ridden members of the middle class. From legal aid, they get sympathy but little else. Ontario’s Holden doubts that the middle class will ever be covered, “but the justice system has to become cheaper and more accessible to those people. Legal fees are unconscionable for some services the middle class requires.” Nancy Brown Medwid, executive director of Legal Aid Alberta, says: “It’s true that there are people with substantial incomes who haven’t the ready cash to pay for a lawyer, but they can usually borrow the money.”

The sobering challenges facing legal aid are felt most acutely by the men and women responsible for running it. Pinder Cheema, chairman of British Columbia’s Legal Services Society, says budget cuts have forced her to drop services such as representing single parents who want courts to increase maintenance orders against a onetime mate. The only exceptions, says Cheema, are cases where “there is a risk of harm to the children or to the safety of the person making the application.” She adds: “We are at the stage where we are serving fewer and fewer people because our dollars are shrinking.” The biggest losers, says Vancouver lawyer Richard Peck, “are wage earners, people who just barely make it in their day-to-day family lives and who simply can’t afford counsel.”

Frustration over the diminishing dollars available for civil cases, particularly family law, is widely apparent. Jane Lancaster, chairwoman of the Saskatchewan Legal Aid Commission, says that because the provinces are required by Ottawa to furnish a basic criminal law service, “any reduction in our budget is always at the expense of family law clients.” Adds Lancaster: “I think you would get a lot of spirited discussion as to where obtaining maintenance for a single mom fits on the scale of justice compared to someone with their 57th break and enter.’’The private bar is rarely used by Saskatchewan legal aid; the commission employs 60 full-time unionized lawyers whose starting salary is $32,400 a year.

Nova Scotia—which, along with Prince Edward Island, depends heavily on staff lawyers—is feeling the squeeze even more than Saskatchewan. Its legal aid eligibility levels have not been broadened in six years, says executive director Gerard Lukeman, because “that would increase the number of people

who would qualify and we don’t have the resources to handle them.” His office no longer accepts impaired driving cases unless the offender faces jail, and restricts family law work, which used to include divorce and maintenance issues, primarily to family violence and child safety. “Our basic function,” Lukeman says, “is to provide services to people who are charged with serious criminal offences where there is a likelihood of incarceration.”

But the legal aid plan that has really hemorrhaged under the government knife is Ontario’s. In 1993, the province spent more than $320 million and issued 225,000 legal aid certificates although, says director Holden, that number was probably inflated by the recession. This year, Ontario will hand out 85,000 certificates from a budget of around $167 million, a chunk of which must go to reducing the plan’s deficit.

“In the early ’90s, we were getting close to the point of being able to say that legal aid had created equal access to justice, but I wouldn’t say that now,” says Holden. “The idea of havng two justice systems—a law for the rich ind a law for the poor—is something that so:iety is prepared to accept. What’s more discurbing in some ways is that the legal profession is prepared to accept it.” But that attitude, warns Holden, ignores potential dangers for society. “At some point, people will become angry and we just don’t know what the results if that will be.”

For years, the justice system—especially in Western Canada—has wrestled with the special needs of natives who often do not understand how the justice system works. At the same time, native leaders complain that white society does not understand their needs. Legal aid tries to bridge the gap and build understanding—on both sides. In Saskatchewan, the 11 members of the Legal ¿Vid Commission include four aboriginal laymen appointed by the lieutenant-governor. ¿Vrne Peltz, director of Winnipeg’s legal aidsupported Public Interest Law Centre, has neen trying to recruit aboriginal staff, ineluding lawyers and paralegals. “There’s neen a debate going on in Manitoba about whether there should be a separate justice system for native peoples,” Peltz says.

That would be a welcome change for repeat offender Dean Three Suns, who says he feels íe is in an alien world when he finds himself nefore a Calgary judge. The 30-year-old Blackmot Indian has been charged with a string of minor offences at least once a year since he mrned 18, and his frustration and confusion always return. “It’s as if no one listens or understands, or gives me credit for what I’m trying ;o do to make myself a better person,” says rhree Suns, from the Siksika Nation 75 km sast of Calgary.

Last month, Three Suns appeared in a Calvary provincial court on charges of driving while disqualified, driving without a valid licence, failure to appear and theft under >5,000. Alberta legal aid lawyer Tim Dunlap persuaded the judge to delay the proceedings because Three Suns wanted to complete a eourse in aboriginal cultural awareness.

Dunlap has witnessed the alienation abo'iginal people feel within the justice system. The problem is that it’s not sensitive enough o cultural issues,” says Dunlap. “It’s common for aboriginal people to face charges mch as failure to appear because they live )utside the court’s jurisdiction and often lave no vehicle or any other way to get to :ourt. So they get charged with failure to apiear and that comes back to haunt them when they try to find a job.”

Moreover, he adds, legal aid’s requirements sometimes work against those who leed help the most. In Alberta, individuals must pay a $10 application fee to be considered by legal aid. Native people are often ar-

rested and remain in jail, sometimes for days, until legal aid waives the application fee. “It’s crazy,” says Dunlap. ‘You get people in jail at a cost of $100 a day because they don’t have the $10 for legal aid.”

Not surprisingly, most of the suggestions for reviving the legal aid system revolve around transfusing it with more money. But there are others. An Ontario task force led by

John D. McCamus of York University’s Osgoode Hall Law School in Toronto, which concluded that the present system “is failing to meet even the most basic needs of the poor,” recommended last September the creation of a legal services corporation independent of both the provincial government and the regulatory Law Society of Upper Canada. At the same time, said the task force, while the private bar must continue to anchor the delivery of services, legal aid should draw more heavily on the services of duty counsel and paralegals. And in civil law cases, it added, there were “compelling reasons” for permitting U.S.-style contingency fees, whereby lawyers would agree to take cases for a percentage of the awards by the courts to their clients.

The argument for the independence of legal aid plans from both the legal profession’s regulatory and licensing bodies and governments was echoed by the National Council on Welfare. But it also proposed that the justice system could reduce the financial drain on legal aid by resorting to mediation and conciliation services to settle disputes short of the courtroom door. Young offenders and natives accused of minor offences should be diverted to the care and counselling of community groups. Poverty, child abuse, unemployment, inequality and crime are all linked, said the council, so governments “should give their unqualified support to measures which will correct these problems.”

An option opposed by most lawyers, who loathe government intervention in any form, are state-financed public defender programs that indigent offenders depend on in the United States. The Winnipeg Public Interest Law Centre’s Peltz said American public defenders “can’t come close to doing a proper job for their clients” because they are overworked.

However, there would appear to be moves in that direction—Saskatchewan, Nova Scotia and Prince Edward Island depend largely on staff lawyers, Quebec and Newfoundland use a mix of staff and private-bar lawyers, Alberta has just begun experimenting with staff counsel and Ontario will follow suit shortly. And Toronto criminal lawyer Edward Greenspan is resigned to the trend. “We should have the public defender system because we have no choice,” says Greenspan, who advocates contingency fees as well. “I’m not enamored of it because the independence of the criminal bar is very important, but I’ve come to have a better appreciation of the American system—especially since my daughter is about to become part of it.”

On the fourth floor of the Allegheny County Office building in downtown Pittsburgh, a lanky, bush-jacketed man in his late 20s stands before the receptionist in the public defender’s office. He is late for a court appearance on a charge of narcotics possession. “They told me today,” he says uncertainly, fingering an earring. “Well, they were wrong,” she replies. She hands him a slip for another appointment and he leaves.

Five days a week, they line up in front of her desk, blacks, whites, Hispanics; most of them young, all of them in trouble, an endless legion in the ubiquitous uniform: baseball caps, running shoes, sweatshirts, jackets. Each gets a piece of paper and a seat in the rows of moulded wooden chairs where they wait for interviews with intake workers. They will all get representation if they cannot afford a lawyer.

In his office down the hall, director Kevin Sasinoski shares the burden that swamps legal defence schemes across the continent—too many cases, too little money. In 1995, his budget was more than $5.6 million a year and he had 60 lawyers and 25 support staff. Then, in 1996, the Republicans, genetically hostile to social service programs, wrested the county from the Democrats for the first time in 60 years. Now, Sasinoski has a budget of less than $4.2 million, 45 lawyers, 15 support staff and his caseload is up 30 per cent.

Most of the lawyers share small offices on four sides of a common room whose most prominent feature is an old-fashioned, coin-operated peanut-and-gumball machine. In the year that ended on Sept 30, they had appeared at 12,005 preliminary hearings, a third of which were quickly settled by guilty pleas to reduced charges. But they also dealt with 6,047 trials in addition to thousands of pretrial conferences, probation violations, mental health commitments and juvenile hearings. They work up to 10 hours a day and frequently spend their weekends on trial preparation. The starting salary is only about $35,000—which makes one wonder why they do it.

“Probably a couple of reasons,” says Sasinoski. “Number 1, they love the work. Number 2,1 don’t think there’s a lot of private criminal work out there.” Given that his office handles up to 65 per cent of all the criminal cases in a county of 1.5 million, he is probably right. “Besides,” he adds, “it’s a great challenge. It’s like being a gladiator in some ways; it’s just you and the guy you’re in battle with. Fortunately for both sides, the wounds are not mortal.”

Still, he gets frustrated. “I know what would make it a better place, more efficient, more in tune with what ought to be done.” Money.

Atrip through the legal system for people not familiar with it can be harrowing, but it is less so when the traveller has company. In Fredericton, Jeannine Godin says she will always be grateful to Thomas Christie. Today, she says, life is not so bad; in fact, “we’re doing pretty good. The kids are all in school and my son’s in French immersion.” She recently bought herself a small rent-to-own trailer. “Things are starting to come together. I think I’ve got a lot of people mad at me right now but they don’t bother me anymore.”

Christie, she adds, “has never gotten paid for any of this and he put a lot on the line for the kids and I’m really proud of him, you know? If it wasn’t for him, things wouldn’t be going anywhere.” But because of Christie’s refusal to take no for an answer and the Supreme Court’s willingness to hear his reasons, there is no telling where things will go next.