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A fundamental aspect of justice in Canada is that any accused person has the right to make a proper defense.  In practice, this right does not exist for most Canadians because they cannot afford the legal costs, which can easily run into six figures.

Cuts to Legal Aid in Ontario and other parts of Canada have featured in the news recently.  The argument is that new legal aid provisions make it impossible for many people accused of crimes to get a proper defense. But legal aid is only part of the problem.  The fact is that most people accused of a crime in Canada do not get full legal representation.  (This post focuses only on criminal charges, although there are also major concerns about the lack of access to legal assistance in civil matters such as child custody.)

The result is that many guilty pleas and some convictions happen when they would not have had the person charged been able to afford a proper defense.  And keep in mind here that more than 90% of criminal convictions in Canada are the result of a guilty plea, not the result of a trial.

Tens of thousands $ is almost automatic

Consider an example using a criminal defense lawyer who charges $350/hour, which is not nearly the top rate.  In fact, according to Canadian Lawyer, his is the average for a lawyer with 6-10 years experience.  You are arrested.  There is a bail hearing – a day of preparation plus a day for court appearance if the bail is resolved on the first try, which often does not happen.  Then there are months of regular meetings between your lawyer and the crown while nothing material happens on your case.  Each meeting is several hours of billing.  There are often extensive discussions between your lawyer and the crown or police over your bail conditions.  For example, it can take a day or two of lawyer time just to negotiate a change of address or to get an alteration in conditions that allows you to work, or see your children. Then you get the evidence disclosure from the crown, which requires at least some days of review by your lawyer, who will also be studying precedents and relevant case law related to your charges.  By the time the crown gives a position on sentencing and you have to decide whether or not to plead guilty, you can easily have used 200 hours of lawyer time, or $70,000 – plus tax.

Trials cost even more

But that is the cheap part.  Where it gets really expensive is when you have a preliminary hearing (now largely abolished) or a trial, or even a sentencing hearing after a guilty plea.  A typical rule of thumb is that a lawyer needs two days of preparation for every day of court time.  And a day in court, which is usually 4-5 hours, will be charged at a full 8 hours.

So if a case involves, say, a 3 day trial, followed by a one day sentencing hearing, that will cost more than $35,000, not to mention costs for the use of experts who may be relevant in your case.  Getting a single expert such as a psychiatrist to testify is typically several thousand dollars.  Now the total is well over $100,000.  And in high profile cases, or for trials that last a couple of weeks, you can multiply that figure by 3 or 4 times.

How many people in this country can afford to pay a lawyer $100,000 or more?   The answer is very few, since we know that some about half of Canadian families essentially live paycheck to paycheck.  The median family yearly income in this country in 2017 was $35,000.  People in trouble with the law may end up selling or mortgaging their homes, or calling on relatives to help.  Or, more often, they just tell the lawyer they can’t afford it and don’t get the advice and representation they need for a proper defense.  They plead guilty because they can’t afford to defend themselves.  They don’t appeal when there are good grounds to do so because that would cost another huge chunk of money.

Bad effects of lack of access to legal assistance

We know that the Canadian justice system imprisons vastly disproportionate number of Indigenous, Black and poor people.  The link between lack of money to pay lawyers and that outcome can hardly be an accident.

This is not to blame lawyers, who will often work extra hours with little or no compensation because they believe their clients are entitled to their best efforts.  But a legal system cannot rest on the voluntary efforts of lawyers.  And, though some criminal lawyers do indeed make very high incomes**, many do not, (average pay for a criminal lawyer in Canada is only about $70,000 according to payscale.com), including, by definition, most of those whose work involves defending people who do not have a lot of money.  We don’t expect judges or prosecutors to put in unpaid time to ensure that people get bail hearings or trials in a reasonable time frame.

Most Canadians don’t worry about this issue because we take the view that those arrested and charged are probably guilty.  We may even object to people using lawyers to get them off charges that ‘they probably did’.  But we know that more than a third of criminal charges in Canada are stayed or dropped, and another proportion are found not guilty.  It seems highly likely that with proper legal defense, thousands more people would also be found not guilty, avoiding the lifelong stigma and other dire consequences of a criminal record.

If many people cannot afford proper legal defense then we cannot claim to have a fair criminal justice system.






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