Most people assume that if they have the misfortune to find themselves on trial that they will always have a lawyer to defend them, even if they can’t pay for it.
For people living in Prince Rupert, that assumption would be wrong.
Earlier in March, the Public Commission on Legal Aid published its report on the state of legal aid in British Columbia, and the findings were not good. According to the report British Columbia’s legal aid program is failing to provide lawyers for those who cannot afford them, despite this being the program’s main goal.
Defense lawyers and crown council in Prince Rupert say that the situation at the courts is dire. Cuts to legal aid since 2002 have caused many low-income individuals to find themselves on trial in a Prince Rupert criminal court without a lawyer; something that judges and prosecutors do not want to see happen.
Martin Griffith-Zahner is a defense lawyer in Prince Rupert, and according to him, he is one of only two lawyers in town that still take legal aid cases, down from eight lawyers active before the legal aid’s budget was cut.
“Lawyers are no longer talking legal aid referrals, which means that there are people in Prince Rupert that they cannot find lawyers to represent. So you have individuals that would qualify for legal aid having great difficulty appearing before a court,” says Griffith-Zahner.
According to Griffith-Zahner, lawyers in town stopped taking legal aid cases because the amount being offered for each case has become so small that it makes doing proper legal counseling impossible. Even he admits to having to turn down cases, saying that as a professional he would rather do the job properly or not at all. He wouldn’t give an amount that an average legal aid case pays, saying that it varies too much based on the charges.
Jennifer Reid works in the Crown Counsel office at the Prince Rupert courthouse. She says that the shortage of legal aid and a shortage of lawyers generally have made it commonplace for people to go to court without council.
“We have too many self-represented people as it is. The [Legal Aid program’s] cut off for paying for lawyers cuts out the working poor and so they can’t even qualify for a lawyer for family or criminal cases,” says Reid.
Reid says when someone goes to court without a defense lawyer, the judge and prosecution have to “bend over backwards” in order to make sure that individual receives a fair trial.
“It puts us in a very awkward position because we have to negotiate with someone who may have absolutely no legal training at all. How do you not take advantage of that inequity? They have no idea whether or not what you’re presenting to them is fair or not. And on top of that, the duty council is only here on Mondays,” says Reid.
Griffith-Zahner worries that the lack of defense council could be causing wrongful or unnecessary convictions in Prince Rupert.
“It could cause an unrepresented individual to be convicted for an offense that they may have otherwise not have been convicted for, which would be a miscarriage of justice despite the fact that everyone is trying to do their jobs as best they can,” says Griffith-Zahner.
The lack of defense lawyers has other consequences than just miscarriages of justice. Without a defense counsel, a trial can take much longer than it would otherwise meaning that every trial costs the taxpayer more.
There is no permanent legal aid officer in Prince Rupert; a representative from Terrace comes down to Prince Rupert every few weeks. Both Reid and Griffith-Zahner say this makes even applying for legal aid difficult.
They also point out that there are not enough sheriffs in the city, which means that defendants have to sit in RCMP holding cells longer just waiting for transport to the court house, which slows things down more and ends up costing more money.
The commission report says that the legal aid program should be considered an essential service like education or ambulances, and should be funded accordingly. Both Reid and Griffith-Zahner say that this is a step in the right direction, but worry that the justice system is a second thought in the minds of many voters, and few politicians want to run on more money for legal defense.