Who’s going to fix our broken criminal justice system?

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This column originally appeared in the Halifax Examiner on July 30, 2017.

“The evidence has therefore made it clear to us that it can be unfair to expect that a brass knuckle possession, or breach of recognizance, or theft-under file for a repeat offender currently in custody being dealt with on a legal aid certificate will have the same level of file management and documentation as the file of a young executive’s impaired driving charge being dealt with on a private retainer…”

Last week I wrote about the Lyle Howe decision with a focus on the decision itself. But there is a separate but related issue the bar society’s inquiry panel touched on in passing — “the current standards of criminal defence practice in the Halifax metropolitan area” — that’s also worth circling back to, and quoting from at length.

The panel notes it heard testimony from very different classes of criminal defence lawyers.

Most senior members of the criminal bar, it reported, don’t do any legal aid work at all, and operate almost “exclusively a high level, private-retainer practice.” Their clients “tend to have substantial social and financial resources to participate in their own defence….

These matters tend to take longer, and often migrate to the superior courts. As a result, there is a common expectation (and thus a standard of practice) that senior criminal counsel engage with clients in regular and lengthy consultation meetings, undertake unique or novel legal research, provide detailed legal opinions where appropriate, develop helpful expert evidence, and at each step in the process provide confirming correspondence. Perhaps most importantly, clients who retain members of the senior criminal defence bar enjoy exclusive or near exclusive service on court appearance days.

At the same time, the panel heard testimony “from other criminal defence lawyers whose practices are substantially based on retainers paid (after the fact) through legal aid certificates [and] from legal aid staff (salaried) lawyers about their criminal defence practices.”

Those lawyers operate “in the trenches” of what Chief Justice  Joseph Kennedy aptly described as the “emergency room” of Canada’s criminal justice system, juggling far too many clients, many of whom “suffer from literacy and social challenges that make it a challenge to even maintain a current address, leaving aside the question of whether the client might be able to make sense of any instruction or reporting letter which might get written.”

Staff lawyers at Nova Scotia Legal Aid are expected to “close” several hundred “files” per year… The number of files that legal aid lawyers need to manage to resolution does not lend itself to a practice that consistently includes regular and lengthy client consultations, a leisurely or quietly paced court schedule, nor files fully documented with learned legal opinions, or even regular correspondence with the client.

“These realities of front-line criminal practice,” the panelists add, “become magnified when the lawyer providing defence services is not on staff at Nova Scotia Legal Aid, but rather is attempting to function as a member of the private bar,” running their own offices and managing overhead while operating on time- and fee-limited legal aid certificates.

The certificate system, with its capped preparation hours for private bar lawyers, creates strains for private bar lawyers in managing to review disclosure, getting instructions from a client, and then preparing the client (and any witnesses), and the lawyer herself, for an election decision, a plea, a trial, or a sentencing… The ability to have a quick turnaround between retainer and billing can provide an additional incentive for private practitioners to “close” a case early in the Provincial Court… A lawyer can work a whole court day on a legal aid certificate for approximately what a senior member of the private bar might be able to command for an hour’s consult.

To make all of that even worse, the report continues, there are many accused who fall between the cracks of the system: those who are “not poor enough to qualify for legal aid service, or who are not charged with a legal aid ‘menu’ offence,” but still can’t afford to hire a lawyer, even if they could find one willing and able to take their case.

The panel’s perhaps self-evident but nonetheless shocking admission: there are only a “limited number of people” — almost all of them with “substantial social and financial resources” — who can hire lawyers who have the time and resources to represent them fully and adequately in the criminal justice system.

What happens to the rest? Solving that problem wasn’t within the purview of the inquiry panel, which had its own, much more limited assignment. But their findings shouldn’t be allowed to disappear simply because they weren’t central to the panel’s mandate.

We have a system that is clearly broken, and real people who suffer as a consequence. What is the bar society going to do about that? The justice minister?

It is time for them to be accountable.

A version of this column originally appeared in the Halifax Examiner. To read the latest column, please subscribe.

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