Access to justice is a familiar phrase, and problem. Access to justice is the phrase that articulates the idea that all Canadian citizens – particularly the marginalized and disadvantaged – should be able to seek and obtain equitable legal remedies through formal or informal institutions of justice. It is no surprise that an access to justice problem exists and persists as a two day trial costs in excess of $30,000 according to the 2015 Canadian Lawyer Legal Fees survey. As a collective of individuals who are paid problem-solvers, those in the practice of law tend to offer solutions to the access to justice problem. The most recent solution has come from the head of the highest court in the land.
On February 7, 2019, the Honourable Chief Justice of the Supreme Court of Canada stated in an interview that it would be “very good” for law societies to make pro bono work a requirement of all lawyers to alleviate court delays and to close the access to justice gap. However, this proposed requirement would likely overburden criminal defence lawyers – the vast majority of whom have a significant legal aid practice and are already performing a substantial amount of reduced rate and unpaid hours.
While access to justice encompasses a broad range of local support, the most obvious example is legal aid. As you likely know, legal aid is a government (under) funded program that delivers legal services for those who are economically disadvantaged and thereby unable to hire their own legal counsel. In Saskatchewan, legal aid services provided in relation to criminal matters far outweigh legal aid services provided in the civil realm.
Inherent in legal aid work is a significant degree of pro bono work. Legal aid employs a very strict payment regime for lawyers, which is a direct result of the degree of government funding it is provided. While the parameters of payment vary from province to province, in Saskatchewan, legal aid files are paid out at $88 per hour. Further, preparation time is limited on the basis of the maximum sentence available for the alleged offence and court time is unpaid unless it is time that is specifically spent speaking to the file(s) at hand. These parameters result in a significant number of hours worked for free on each file.
The legal aid hourly rate is significantly lower than the regular hourly rate at which private work is billed and does not even cover the overhead costs of performing that work. In making time for legal aid files, private lawyers are often effectively declining files that can be billed at their full rate and are reaching into their pockets to cover the concomitant overhead costs. As such, there is a noteworthy value that is donated by each paid hour of legal aid work done. For example, a private lawyer who has an hourly rate of $200 is forgoing $112 for each paid hour spent on a legal aid file. The hourly rate of legal aid work is noteworthy as it impacts private counsel’s capacity to take on legal aid matters, specifically junior counsel whose job security depends, to some extent, upon the amount of money their work generates for the firm as a whole. After all, law is a business and in business, the economic bottom line is paramount. While a significant amount of money, and some degree of job security, is relinquished each hour spent on legal aid files, this is certainly the least significant (and most selfish) point to be made.
Legal aid strictly limits the amount of time which can be spent preparing for a matter. Under the Criminal Legal Aid Tariff, summary and indictable matters with a maximum punishment of five years imprisonment are limited to 10 hours of preparation time. The limitation on preparation time increases to 15 hours for alleged offences carrying a 14 year imprisonment maximum penalty and to 30 hours for alleged offences which are punishable by life imprisonment.
The reality is, however, that the volume of disclosure and the court process involved in a legal aid file does not always mirror the severity of the alleged offence(s). For example, I recently concluded a file wherein the accused was charged with an offence carrying a maximum punishment of 14 years in prison. As such, I was afforded 15 hours of preparation time. However, the file included over four hours of video, nearly 200 pages of police disclosure, as well as voluminous transcripts from the preliminary hearing. By the time I had thoroughly reviewed all of the material contained in the file, I had already exceeded the allotted 15 hours for preparation and had not yet begun to prepare materials for the two day trial that was scheduled. In addition, time spent preparing witnesses is not an expense that is covered by legal aid, meaning that the three and a half hours I spent with my client to prepare him for his examination-in-chief and likely points of cross-examination was entirely unpaid. As a result, over 30 hours spent in preparation for this file amounted to unpaid work.
Regardless of the volume of disclosure accompanying a particular file, you would be hard pressed to find a lawyer who simply ceases work on a file when the time limitation has been reached. Work continues despite knowledge that payment will not occur for that additional work for a number of reasons; primarily because everyone deserves a thorough, thoughtful, and fulsome defence, and secondly because no self-respecting lawyer is going to appear before their colleagues and the Court ill-prepared, citing the reason for the same being that their paid prep time ran out.
It is also important to note that a significant number of legal aid files end up in the hands of junior counsel. As a result, some time is spent researching and understanding not only the substantive law underlying the charge(s) at hand but also the procedural law which accompanies the array of appearances, motions, and applications involved in navigating a criminal law matter. While this knowledge is necessary in adequately representing any client, the research done to generate the same will eat away at the amount of hours one can spend squarely focussed on addressing the issue(s) at hand.
Junior counsel having carriage of legal aid files makes sense from an economical perspective as the relatively low hourly rate of legal aid files comes at an increased cost to more experienced counsel. However, the additional time spent preparing for court prefaces the additional (unpaid) time typically spent in court by junior counsel. It is common practice in the courtroom that counsel appear in order of seniority. As such, junior counsel spend a significant amount of their time simply waiting to speak to their matter(s). At a particularly busy court docket, it is not uncommon to wait for an hour to speak to a five minute matter. Under the legal aid payment regime, the 60 minutes spent waiting to speak to a matter, is unpaid.
Lawyers working on legal aid files also do not get paid for the time spent in the hallway outside of the courtroom explaining to their client’s distraught mother how to start a bank account at the correctional centre for her son so that he can purchase basic goods such as deodorant. Nor the time that is spent thanking the employee of the local Salvation Army who made time to be present in court after spending an abundance of time and effort ensuring a bed would be available for the client in the event they were not remanded.
As can be gathered from the above, many defence counsel are already providing considerable pro bono hours through their legal aid practice. As such, the requirement that lawyers provide a regimented number of pro bono hours each year, as proposed by Chief Justice Wagner, is unfortunately unlikely to impact the access to justice problem, let alone fix it.
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