Do legal aid rates provide accused with a fair defence?

A B.C. Supreme Court decision has posed an interesting debate: do legal aid rates provide the accused with a fair trial, and, the ability to assembling an adequate defence team? And, should the taxpayer bear the cost of an exhaustive defence team putting every aspect under a microscope when the average individual, unable to qualify for legal aid, could not afford such a protracted defence?

vancouver courthousePivotal to the issue is the public purse. Supreme Court Justice Sunni Stromberg-Stein, in a recent decision in R. v. Bacon, criticized the B.C. attorney general for negotiating fees above those publicly posted by the Legal Services Society.

“But, sadly, when the Attorney General is approached for ‘special fees,’ and engages in negotiations with counsel who seek a richer deal, cost and common sense take a back seat. This is evidenced by the enormous legal fees paid in the past in the Air India, Pickton and Basi and Virk trials. The Attorney General has stated that a counsel rate of $250 per hour is unsustainable, in an apparent move to reign in public spending on legal fees. There seems to be little political or public appetite to perpetuate the process used to determine fees and number of counsel as has occurred in the past,” she said.

In the case, accused killers Jamie Bacon, Matt Johnston, and Cody Haevischer came before Stromberg-Stein to argue that unless the AG’s office could double the LSS rate, they felt they could not assemble the defence team they needed and their rights to a fair trial would be compromised.

“Senior counsel want $250 per hour. The numbers of counsel requested for each defence team have varied. I understand each team wants two to three senior lawyers,” Stromberg-Stein said in reasons. “Funding a second lawyer is exceptional. It is a very rare occurrence, to ever fund three lawyers.”

Bacon, Johnston, and Haevischer along with co-accused Michael Le (who did not participate in the proceedings) are all alleged members of the Red Scorpion gang and charged in 2009 with first degree murder of six individuals. The Surrey Six murders are considered B.C.’s worst gang homicides.

Bacon’s lawyer Kimberley Eldred, who spoke for all the defence counsel, maintained since June 2010, the AG’s office has not dealt in good faith with funding issues and has the ability to increase the LSS funding. She argued that this case required a remedy of proper funding, not a stay of proceedings, and asked the court to establish a funding structure. She also maintained the hourly rate structure goes to the quality of counsel an accused person can hire, and the degree of devotion that counsel can give to the accused person’s case.

LSS spokesperson Brad Daisley said currently legal aid lawyers receive between $83 and $92 an hour with an “enhanced” fee for more senior counsel rising to $125 an hour on major complex cases. On larger cases that can monopolize a lawyer’s time, the attorney general has the ability to add a 15 per cent fee to LSS-appointed counsel, which would raise the legal aid lawyer’s fee to $144 an hour. This only happens in “rare” cases, said Daisley.

Justice Stromberg-Stein pointed out that the comparison should not be between what LSS could pay and what the AG’s department could spend on counsel but rather if B.C.’s legal aid rate fell below the standard offered by other provinces to enable the accused to obtain counsel.

“I conclude government rates paid in other cases are not relevant. . . . The hourly rate, without context, is not a comparator,” said Stromberg-Stein. “What is a comparator is the legal aid rate paid in other provinces. British Columbia, by far, offers the richest compensation for counsel engaged in complex trials.”

The judge noted the lawyers had not returned the LSS certificates or applied to withdraw from the case, an option if they felt they were not able to financially take on the case.

“When assessing Charter rights related to representation by publicly funded counsel, the test is simply whether counsel is ‘sufficiently qualified to deal with the matter at issue,’ not whether counsel is the better or best qualified lawyer,” Stromberg-Stein reasoned.

She cited the Rowbotham and Fisher applications, but noted that few courts today follow Fisher. She concluded neither application of the law applied here.

The Surrey Six trial is expected to be a complex, large trial. However, the judge was critical of the rising costs of mega-trials. “What is a ‘mega’ trial if not a big complex criminal trial?” she asked. “Simply describing a trial as ‘mega’ seems enough to ensure that it will mushroom out of control and take on a life of its own. The description creates the monster,” she said, adding in reasons the more resources that poured into these larger, longer trials, the more complex they tend to be and thus, result in a self-fulfilling prophecy.

In the end, Stromberg-Stein simply ruled: “I agree with counsel for the Attorney General. This case does not invite judicial intervention or remedial action. It invites counsel to make a decision: they must decide whether they will accept what is being offered by LSS, as enhanced by the Attorney General, or whether they will seek to withdraw.”

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