To meet time limits, legal aid must be prioritized: lawyers

VANCOUVER — Provinces have mostly ignored legal aid as they increase resources to meet strict time limits imposed in a landmark Supreme Court of Canada ruling, the head of the Criminal Lawyers Association says.

Anthony Moustacalis said while the so-called Jordan decision of July 2016 has forced provinces to make changes ensuring delays don’t exceed 18 months in provincial courts and 30 months in superior courts, defence lawyers who take on legal-aid cases have been left behind.

“In Ontario, the provincial government has appointed more provincial judges and [Crown counsel]. And instead of funding legal aid to cover more of the work of private counsel, they’ve funded legal aid to put duty counsel in the jails to make sure that people who are arrested get their bail hearings organized a bit faster.”

Judges are now requiring defence lawyers to submit more detailed written arguments before starting a trial to accelerate proceedings, but the extra workload isn’t matched with more legal aid, he said.

“You get a limited number of hours per file and that was based on the average demands on a file in the 1980s,” but more disclosure and meetings with judges and the Crown, along with increasingly complex scientific evidence, already chew up valuable court time, Moustacalis said.

Legal aid covers about 55 to 60 per cent of all cases in Ontario, far below what’s required for people too poor to afford basic necessities, let alone a lawyer, he said.

“If legal aid was properly funded, it would be more like 80 per cent of all cases. Eighty per cent of people who are charged have either mental-health or drug or alcohol dependency issues or a combination thereof.”

Moustacalis said his association has been lobbying the federal Justice Department on legal-aid funding and other issues in keeping with timelines established in the Jordan ruling, which set aside the drug convictions of B.C. resident Barrett Jordan over unreasonable court delays.

Issues stemming from delays were on top of the agenda at a recent meeting in Vancouver of Canada’s justice ministers.

The Justice Department said in an email statement that it is working with provinces and territories to reform the system and make it as efficient as possible, saying ministers at the meeting “reinforced this commitment, agreeing on the need for urgent and bold reforms to reduce delays in the criminal justice system.”

B.C. Attorney General David Eby said justice ministers at the meeting were troubled by court delays, especially because more than 200 cases have already been tossed since the Jordan decision.

“The concern is universal across the country about the impact that this Supreme Court of Canada decision has in really raising the disturbing possibility of people who have allegedly committed serous offences walking free,” Eby said.

B.C.’s former Liberal government slashed legal aid in 2002 and continued cuts that had lawyers protesting.

Eby said the 2018 provincial budget would provide some money for legal aid and other reforms.