Legal aid lawyers in B.C. are preparing for the start of provincewide withdrawal of services beginning April 1 and escalating over a 30-day period to a complete withdrawal. Negotiations with the attorney general's ministry continue throughout the week for members of the Association of Legal Aid Lawyers around B.C.
This is not the first withdrawal of services seen in B.C. with the last protest over underfunded legal aid and lawyer tariffs in 2012 and others stretching back to the early 1990s. "I've been involved in them all, but this one is different," says ALL director and 44-year veteran Robert Bellows as lawyers are more organized and have formed ALL. "We have found our voice."
Bellows said lawyers, in various jurisdictions defined mainly by courthouses, have voted 97 per cent for job action, but starting April 1, ALL members, estimated at 600 strong, will refuse any new clients. Also on April 1, ALL lawyers will no longer provide services to out-of-custody clients at the courthouse, which includes out-of-custody clients needing evening or weekend help.
"Different jurisdictions have the ability to accelerate job action starting April 1," Bellows says, adding that some jurisdictions have opted for withdrawing in-custody duty counsel Monday to Friday starting April 1. The known jurisdictions, mainly in Greater Vancouver, he says, are Vancouver, Victoria, Surrey, Chilliwack, Surrey, Port Coquitlam, Nanaimo, Abbotsford, Richmond and Gore's community court.
Job action will escalate on April 15. "Lawyers will begin withdrawing from trials already set," Bellows says as lawyers will not abandon clients where trials are in progress. "The courts would frown on that," he says, but lawyers with dates set months ahead will ask to be removed from the case. "If there is not an agreement in place by April 15, you can expect to see a lineup of lawyers applying to be excused," he says.
By May 1, Bellows says, ALL supporters will withdraw from providing duty counsel for in-custody representation. The major impact will be seen at the provincial court level but also at the B.C. Supreme Court level, he says.
However, while ALL has co-ordinated a provincewide effort, not everyone is on board. In Prince George, criminal lawyer Keith Jones, a former staff member for the Legal Services Society, says that while he agrees there should be more funding for lawyers and legal aid in the province, he doesn't agree with the withdrawal of services. "It is punishing the people who are already needy," he says as those with few resources will be left with none. He says he is one of three lawyers in Prince George who will continue providing legal aid services. "But, there could be more," he says. He does receive ALL material, but he has not joined.
The impending withdrawal of services has drawn responses from many of the parties involved. In an issued statement, Law Society of B.C. president Nancy Merrill said: "No one should be surprised that we have reached the point where lawyers who do legal aid work are prepared to withdraw their services. When the Law Society released its Vision for Publicly Funded Legal Aid in 2017, it was in response to over a decade of inadequate funding levels by one provincial government after another. Since then, there has been little improvement. We are hopeful that the provincial government and the association representing legal aid lawyers sit down together and reach a constructive, sustainable solution.”
The question of how the courts will view lawyers withdrawing services is yet to be determined as judges will look at each case. A statement from B.C. Provincial court said: "Generally, the judiciary is restricted to speaking only through court decisions and thus cannot comment on how cases or individual matters before the courts will be addressed other than to note that judges always assess each matter that comes before them based upon the applicable law and the facts and circumstances of each case."
The LSBC's ethics committee has issued a seven-page opinion on withdrawal of services, which cautions lawyers to consider the fairness to their client when withdrawing services. The document entitled “Withdrawal of Legal Aid and Duty Counsel Services” can be found on the LSBC website.
The Legal Services Society has also issued a press release warning of "significant impact on those appearing in court charged with a crime" but is expecting it can still provide duty counsel for those held in custody on immigration matters and will still have some family duty counsel available.
LSS said intake and local agent offices will still accept legal aid application, but longer wait times on the LSS Call Centre and Family LawLine are expected. Parent Legal Centres will also continue to provide services to families in cases involving child removal.
"LSS regrets that lawyers find themselves in the position of having to withdraw legal aid services to make their case for increased funding. However, LSS has regularly stated that lawyers who do legal aid work are not adequately paid for the value they bring to assisting people with multiple barriers to accessing justice," LSS said in its release.
Meanwhile, attorney general spokesman Liam Butler issued the following statement: "The ministry is continuing to have discussions with ALL about their proposal.”
The proposals are outlined in ALL's submission “Restoring Funding for Legal Aid” to the attorney general's ministry, which sets out seven options ranging from restoring funding by $114 million to raising the tariff paid to $135 to $150 an hour from the current rates of $88 an hour.
Bellows says one of the looming problems with the low rates is that young lawyers coming into legal aid with a passion and commitment burn out after a few years because of funding struggles. With baby boomers leaving the profession, there is a growing lack of expertise as the gap in the middle and senior end increases. That's not happening on the prosecution side, he says, and it is creating an unfair situation in courts today.
"With the tariff where it is, our ability to deliver quality work and ensure justice is done is horribly compromised," he says.