April 5, 2009

How Funding Legal Aid Keeps You Free

The Legal Services Society's cuts to legal aid, announced last January, mean that as of last Wednesday, people charged with breaches of bail or probation conditions no longer receive legal aid, and instead get a few minutes with a duty lawyer prior to their trial.

This has a number of criminal defense lawyers warning that legal aid cuts in the short term may end up costing us a lot more in the long term, as people charged with these breaches are advised to tell the judge that they have not been provided with access to a lawyer, contrary to section 10(b) of the Charter. Section 10(b) provides that on arrest or detention, everyone has the right to retain and instruct counsel without delay and to be informed of that right.

David Hopkins, a Vancouver criminal lawyer says he expects that "many people will be advised by the duty counsel to argue in court that under the Charter of Rights they have a right to a lawyer and to demand a stay of proceedings. That's going to be a real drain on the system. We can certainly expect a dramatic increase in the amount of court time that is going to be devoted to those cases."

Clint Sadlemyer, a Nanaimo criminal lawyer, agrees, anticipating that the courts will be hearing many more Rowbotham applications, where people apply to court for an order that the province pay for their legal defense. The test in a Rowbotham application is whether the accused is in jeopardy of going to jail, whether they have unsuccessfully sought legal aid and whether they have funds for their own defence. Sadlemyer's view is that "it's fair game to apply for legal aid, and when refused to apply for a stay of the charge until the state will pay".

Alongside the backlog and expense these applications would bring, there is a deeper cost to cutting representation for those charged with probation or bail violations, which carry penalties of up to six months in jail. Our legal system's highest value is that individuals should only be deprived of their liberty in accordance with the rule of law. Integral to that concept is the right to have someone who understands the law represent your interests in court.

Toying with this right in circumstances where liberty is at stake sets a dangerous precedent, not only for those accused of offenses, but for all of us. The rights we count on as average, law-abiding people, including that we will not be taken by the police and thrown in jail except by the rule of law, are not won in legislatures and universities. They are fought for everyday in the dingy, embattled courtrooms of 222 Main Street by underpaid legal aid lawyers on behalf of often less than exemplary clients. The fights that happen there force the police, and the state at large, to respect the Charter which safeguards liberty for all of us.

1 comment:

  1. Some people don't pursue their legal remedies for fear of having to speak in public when testifying at court. However often, your claim will be favorably settled long before you go to court. Thanks for sharing to this post.


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