Lawyers sue to boost legal aid
Cases to be fought across country will argue Canadians have right to lawyers
by Janice Tibbetts and Ray Turchansky, Journal Staff Writer, August 12, 2002
Canada's lawyers are suing the federal and provincial governments to force
them to provide legal help to people
who cannot afford counsel.
"The challenge has begun," said Daphne Dumont, past president of the
Canadian Bar Association.
"The litigation strategy is because we have failed to get through to
The bar association, which represents 37,000 lawyers, announced Sunday it
will launch a series of lawsuits across the country to argue governments are
violating the Charter of Rights and Freedoms by failing to properly fund
The association has formed a coalition with eight other groups and together
they are seeking test cases involving the worst examples of people who were
turned down for legal help.
"This is an assertion of rights," said lawyer David Matas, of the Canadian
Council for Refugees.
The lawyers, by sponsoring the fight for people who cannot afford to launch
their own challenges, will argue that denying legal aid violates the
constitutional right to life, liberty and security of the person and the
right to fundamental justice.
"In the past we've taken the position that legal aid is underfunded," said
Ravi Prithipaul, president of the Criminal Trial Lawyers Association of
"Neither the provincial nor the federal government define the eligibility
criteria sufficiently widely to allow enough people to have access to legal
aid," he said.
"On the other side of things, the tariff which lawyers are paid a lot of
times is inadequate for a lot of kinds of services we have to provide,
especially in criminal matters."
The Criminal Code now says a judge can order free legal help for a person
who faces jail if convicted, but that is seldom done.
Legal fees hover around $200 per hour in major cities and total fees for a
contested divorce can average around $8,000.
Lawyers charge an average of $10,000 to $15,000 for two days in court in a
civil litigation trial.
The only foothold for mandatory legal aid that has been established in the
courts is a 1999 Supreme Court of Canada decision that a New Brunswick
mother had the right to public funding to defend herself against the state
seizing her children.
The shortfall in legal aid has reached a boiling point across the country,
fuelled in part by complaints by Canada's senior judges that erosion of the
program is crippling access to justice.
Beverley McLachlin, Chief Justice of the Supreme Court of Canada, said
Sunday an epidemic of people showing up to defend themselves in court is
slowing down the courts.
"It is of concern to me that there appears to be some cases of difficulty in
obtaining legal representation and that can have a snowball effect on the
whole judicial system," she said, during a news conference at the bar
association's annual convention.
"It takes immensely more time to deal with these cases when we don't have
"You may lose more than you gain in terms of public expenditure of funds by
not providing sufficient legal aid."
Justice Minister Martin Cauchon, in a speech he will make today to the bar
association, will acknowledge "there are mounting pressures on the legal aid
system which, if left unchecked, would compromise the integrity of Canada's
Cauchon's press secretary, Suzanne Thebarge, said Sunday the government is
reviewing legal aid funding but the minister does not plan to announce any
The federal government gives provinces money to cover legal aid for people
charged with criminal offences, but it is up to individual provinces to
decide how much of their social funding from Ottawa -- under the Canadian
Health and Social Transfer -- is spent on civil legal aid.
Most provinces have expanded on the federal initiative by including some
civil matters, such as battles over child custody, but services across the
country vary widely.
Alberta legal-aid society spending fell by more than one-third during
1992-95, to $19.7 million, but is expected to rise to $33.1 million this
year, the highest total in the society's 29-year history. Guideline incomes
were raised five per cent last year, and hourly legal-aid fees paid to
lawyers is going from $61 to $80 by 2005.
Alberta Justice officials could not be reached Sunday, but earlier this
year, spokesman Bart Johnson said: "We just came to a five-year legal-aid
agreement (in spring of 2001) and there are no plans to revisit that. In a
perfect world, I suppose we could all have access to free legal
representation, but it's a question of what's
available and what's appropriate."
The bar association, while it has intervened in court cases, has never
pursued such a massive legal challenge against Ottawa and the provinces.
© Copyright 2002 Edmonton Journal