August 21, 2009

Do the Homeless Face Discrimination in Court Applications for Legal Funding?

I posted in April about the cuts to the Legal Services Society, including predictions from lawyers that slashing legal aid funding would simply lead to an increase in Rowbotham applications, where a person denied legal aid can apply for a court order requiring their legal costs to be paid by the government. As I wrote then, "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."

Speculation in April was that an increase in Rowbotham applications would lead to increased costs and clog up courtrooms. Now, some Vancouver lawyers are accusing the Attorney General's office of opposing Rowbotham applications depending not on the need of the accused, but rather on the accused's chance of making a coherent application. Making a Rowbotham application is certainly more complicated than filing out a form or two. It requires gathering and presenting written and oral evidence that the person meets the test for court-ordered funding.

Critics allege that the AG is opposing Rowbotham applications brought by indigent, unrepresented people. However, where someone is represented by counsel, often acting pro bono, the AG will more often consent to the Rowbotham application or the Legal Services Society will change its mind and provide legal aid funding to the accused.

Vancouver lawyer Phil Rankin points to a recent case of his to illustrate the problem:

"In this case, Olivia Edgars, 27, who was charged with four counts of breach of probation, was initially denied legal aid. Rankin appealed that decision and the Legal Services Society confirmed no funding would be provided.
...
Like so many, Edgars is addicted to heroin, collects $230 a month from welfare, occasionally turns tricks to feed her habit and suffers from mental health issues.

She has at best a Grade 6 education.

Edgars is like most of the chronic offenders who get caught in the revolving
door of these minor charges tied to their addictions and homelessness. She has
no fixed address so there is no place to send Crown disclosures or to contact
her. And, let's be honest, she's incapable of understanding the nature of a
criminal trial and the issues at play.

Surprisingly, however, on the eve of her Rowbotham hearing (with Rankin in her corner), the attorney-general authorized funding.

'This came as surprise to me,' the lawyer said, 'as the LSS had twice denied funding and because the LSS has a policy of not funding category one offences unless a person suffers from a serious mental or physical disability.'

The society says it has approved 70 cases under its disability exemption so far.

Rankin figured Edgars received funding because the government knew it was about to lose -- as it would in similar, competently prepared cases -- and he thinks that stinks. Few of these individuals can produce a competently prepared case or properly defend themselves.

'Making the unrepresented accused jump through these hoops is too onerous and the AG is abusing the process and litigants by paying off those who can do a proper Rowbotham application,' he said.

'Ironically, the time and preparation and defence [of Rowbotham applications] is costing the taxpayer tens of thousands of dollars to prevent [the needy] getting legal aid which would be much less expensive.'"

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