Tuesday, February 18, 2014

Manitoba-style access to justice!

Self-representation not always by choice for accused in Manitoba

Dean Pritchard
Monday, February 17, 2014
Hope Buset, the Legal Director of Legal Help Centre, is pictured in Winnipeg, on Friday, January 17, 2014. Buset says there are many challenges that people face when they represent themselves in court. (Kevin King/Winnipeg Sun/QMI Agency)

There’s an old court saying: He who represents himself has a fool for a client.

Things have changed a lot since American president and sometime lawyer Abe Lincoln uttered those words 150 odd years ago.

George Peters doesn’t like to think himself a fool, but he did find himself on the wrong side of the law.

Peters, not his real name, found himself facing drug charges after city police busted a small, rural grow op.

Intent on fighting the charges, he hired a lawyer, but quickly realized it would bankrupt him.

“It was going to cost $20,000 for the trial,” Peters said, roughly the same amount he made in a year.

Peters applied for legal aid but was rejected. He ultimately defended himself, was convicted at trial, and sentenced to 20 months house arrest.

Peters is among a growing number of Manitobans who make too much money to qualify for a legal aid lawyer and not enough to hire a private bar lawyer.

Under current Legal Aid Manitoba guidelines, an individual living alone with a gross income of more than $14,000 will not qualify for free legal aid, nor will a family of three with a gross family income of more than $23,000.

“The average person on the street who is making minimum wage would not qualify under the financial regime,” said defence lawyer and former Manitoba Bar Association president Josh Weinstein.

“Over the last two years, I have never seen so many unrepresented people going through the courts,” Weinstein said. “I have never seen so many issues arise in terms of having to make applications for people to be able to get legal aid at various stages of proceedings — it could be at the Court of Appeal, it could be at Queen’s Bench — and I have never seen so much activity surrounding just the ability to get counsel.”

Even the most unsympathetic defendant has a right to representation in court, Weinstein said. A lawyer can narrow the issues before the court, provide practical advice, or facilitate a guilty plea when appropriate.

“It doesn’t necessarily mean that it is going to drag things through the system and everything is going to be fought,” Weinstein said. “Sometimes things are resolved because he or she can bounce things off a lawyer.”
Legal Aid Manitoba typically refuses to handle criminal cases where an accused is not at risk of going to jail or losing their job.

“Just because a person isn’t going to jail doesn’t mean they don’t need representation,” said one prosecutor. “The more complicated the file, the less likely they are going to be able to do a decent job themselves.”

Unrepresented accuseds “put a huge strain” on court resources, the prosecutor said.

“It is incredibly inefficient,” he said. “Everybody is going out of their way to make sure the hearing is fair and also to make the (accused) comfortable that it is fair. The judge is put in an awkward position. He has to make sure they have at least a minimum level of representation and still potentially judge against them.

“You never know what you are dealing with and you have to explain everything,” he said. “We don’t look forward to a file with an unrep, especially a long, complicated one.”

Legal Aid Manitoba funding guidelines have not changed for more than 10 years, said executive director Gil Clifford.

“In terms of the working poor, there is a problem,” Clifford conceded. “It’s always a struggle, but it’s a struggle across the country.”

Clifford said the issue is more pressing for family law clients. Criminal clients facing real jeopardy can ask the court to intervene and order a lawyer be appointed on the province’s tab.

Federal transfer payments, once 50% of Legal Aid Manitoba’s budget, has dwindled to 17% as the dollar costs of delivering services continues to rise, Clifford said.

“The tendency always when a government is elected is to get hard on crime, hire more prosecutors,” Clifford said. “You aren’t going to get a lot of votes hiring more defence lawyers.

“Access to justice is very important for us, but we have fixed funding and we run it like a business and live within our funding,” he said.

When more funding has been provided to legal aid, it has been used to increase the tariffs and salaries for lawyers, said Law Society of Manitoba Executive Director Alan Fineblit.

“No money has gone to the clients and that is where it has to go next,” Fineblit said.

Legal Help Centre aims to make representation accessible

The Legal Help Centre opened in February 2011 with a mission to help those who can’t afford a lawyer, don’t qualify for legal aid, or don’t know how to navigate the legal system.

The centre is open to anyone with a household income of $50,000 or less.

Many of the centre’s clients — now numbering 80 or more a week — are newcomers to Canada, said Legal Director Hope Buset. Others may be hobbled by poverty or mental illness or are illiterate. The largest number of clients visit the centre to address family law issues.

“What we try to do is educate them and empower them so they can tackle as many of the steps on their own without the necessity of a lawyer,” Buset said.

But not every problem can be solved with coaching, advice, and support, Buset said. Some problems are just too complex.

“Sometimes we tell them straight out you may have to get a lawyer and we understand you may not have the means to do that,” Buset said. “There’s really no good answer for them because they need a lawyer and they simply can’t afford one.”

Recognizing the pressing need to improve access to legal services, the Law Society of Manitoba launched the Family Law Access Centre pilot project three years ago. Under terms of the project, lawyers take on cases for two-thirds their standard rate.

In return, the Law Society guarantees their pay.

“(The client) pays us when the case is over,” said Executive Director Alan Fineblit. “If they have overpaid, they get a refund,” if a balance is outstanding they continue to make payments until the debt is cleared, he said.

The system isn’t perfect, but clients generally pay what they promise to pay, Fineblit said.

“Make or break is whether clients continue to pay after their case is over,” he said. “The program only works if people can pay us.”

dean.pritchard@sunmedia.ca
Twitter: @deanatwpgsun

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