Alberta criminal lawyers want law society out of legal aid

As concern grows over the state of legal aid in Alberta, the province’s criminal lawyers are moving a motion this week to end the Law Society of Alberta’s direct role in the legal aid system.

At the law society’s annual general meeting on Thursday, the Criminal Trial Lawyers’ Association will move a motion seeking a statute-based framework for Legal Aid Alberta rather than the current governance agreement between the government and the regulator.

Shannon Prithipaul, an Edmonton lawyer and president of the association, says Alberta and Prince Edward Island are the only provinces without a detailed legal aid framework enshrined in law.

“I’d say Alberta is really behind. This is not groundbreaking stuff,” she says. “It’s much more difficult to interpret what the rules are . . . when they’re not in a statute.”

Part of the concern centres on what lawyers feel is a lack of transparency in the current system. A statute-based system, according to Prithipaul, could set out details on matters like financial accountability and appeals committees and provide a more concrete basis for redress when problems arise.

With LAA tightening its budget and suggestions the Alberta government is more actively directing what it does, there’s a concern the law society’s involvement is giving a false appearance of independence, she says.

“We are concerned that having the law society involved gives the appearance of a lot more independence than is actually there.”

The governance concerns come as defence lawyers are expressing renewed frustrations with legal aid cutbacks. LAA has reduced the income eligibility for a single person for assistance to about $1,350 a month from $1,750 in 2009, according to Prithipaul.

“It’s a huge difference,” she says, noting that while the change dates back to 2011, legal aid has more recently begun adhering to the guideline more stringently. “The problem is now they’re strictly enforcing them.”

She adds the change means someone on the province’s disability program, Assured Income for the Severely Handicapped, may no longer be eligible for legal aid.

While government funding has largely remained flat in recent years, legal aid has suffered from the decline in income from the Alberta Law Foundation earned on interest from lawyers’ trust accounts. While the province has also blamed the federal government for not doing enough to fund legal aid, “the issue is this just isn’t working,” says Prithipaul.

In response, lawyers are expecting a significant rise in Rowbotham applications asking the court to order state-funded counsel. According to Prithipaul, it’s not an ideal solution.

“That’s going to be expensive,” she says. “But the clients have no choice.”

When it comes to the governance issue, Suzanne Polkosnik, president and chief executive officer of Legal Aid Alberta, acknowledges the lawyers’ concerns but suggests any change to the law society’s role wouldn’t address the core funding issue.

“I think the issue is that other provinces . . . certainly don’t enjoy any greater certainty or level of funding because they are created statutorily,” she says, adding the law society’s participation in legal aid is valuable.

“We really don’t see it’s likely to achieve those ends and in fact we’d likely be losing something,” she adds.

As to the funding issue itself, Polkosnik says the eligibility criteria hasn’t changed in recent years but notes the organization is now applying the guidelines more strictly.

“What has changed is the degree of discretion that has been applied or could be applied to their application,” she says.

While the approach delivers more consistency, Polkosnik admits it’s also the result of a funding crunch at Legal Aid Alberta. With funding from the Law Foundation having dropped from a peak of $15 million a year to a projected $6 million in the coming years, the organization is predicting a $5.5-million shortfall by 2015-16 that will grow to $16 million the next year.

“That is pretty dramatic,” says Polkosnik. “These funding issues have been chronic and persistent.

“It’s been a perpetual state of being for us.”

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