'The system is broken': Many can't afford lawyers, don't qualify for legal aid

CALGARY — Legal experts say the justice system is failing Canada's working poor, many of whom are unable to afford lawyers and end up pleading guilty or representing themselves in court.

In Alberta, legal aid isn't available to anyone making over $20,000 a year. In Ontario, the threshold is $17,731. British Columbia's limit is $19,560, while it's slightly higher in Quebec at $22,750.

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Ian Savage, president of the Calgary Criminal Defence Lawyers' Association, says hiring a lawyer for trial can range from $1,500 to $10,000, depending on the lawyer's experience.

"There's obviously an entire class who don't qualify for legal aid," he says.

"The working poor cannot afford a private lawyer, full stop."

Balfour Der, a veteran Calgary criminal defence lawyer, says many people make too much to qualify for legal aid, but not enough to really live on.

He's noticed a rise in self-representation, which can bog down the courts. Other people give up and plead guilty when they shouldn't, he adds.

"There's probably an analogy to be drawn that people trying to seek out legal assistance is probably not much different than those people in the U.S. who are trying to get medical coverage but can't afford it."

Canadian Bar Association member Patricia Hebert, who practises family law in Edmonton, says people need more help because legal needs have become increasingly complex.

"People who tend to need legal-aid services and have lower incomes and can't afford hiring a lawyer privately — that's a pretty huge category of people right now."

Finding efficiencies, providing legal advice and more public education could reduce pressure on the system, she suggests, but people are falling through the cracks.

"I am chronically a terrible sleeper because I'm carrying around in my head the myriad of problems of my own clients and of all the people we're not yet getting to help."

David Stephan says he and his wife racked up legal bills exceeding $1.2 million over two criminal trials and two appeals, including one to the Supreme Court of Canada. The Alberta couple was ultimately found not guilty earlier this year of failing to provide the necessaries of life for their toddler son, who died in 2012

Court heard the boy had meningitis and the couple tried treating him with herbal remedies before he was rushed to hospital. The second trial judge found he died of a lack of oxygen.

"When this all began over seven years ago, we never realized that it would end up costing near this much. In our naivete, we didn't expect it to be much more than a hundred thousand dollars," Stephan says.

The family got help from relatives and sold assets, including their home. They also received about $300,000 in public donations from supporters.

Savage says many people looking for legal alternatives seek advice from free services run by law students, but they can be selective and restrictive on the cases they take.

Pro Bono Students Canada places law students from 22 schools across the country with community-based organizations, legal clinics and public interest groups. They aren't allowed to dispense advice.

"Everything our students do is under the supervision of a licensed lawyer," says Geneva Houlden, a third-year law student at the University of Saskatchewan.

In 2006, Karen Stewart founded Calgary's Fairway Divorce Solutions, which offers alternative dispute resolution for feuding couples who want to reduce divorce costs by about half.

"I don't necessarily pick on lawyers all the time, but certainly the system is broken and it's not set up for resolution. It's set up for conflict continuation," Stewart says.

"My own legal bills were a half million dollars by the end of (my divorce). That's why I started Fairway because it was an absolute gong show."

Lisa Silver, a university of Calgary law professor, says there is no quick solution to the problem. Governments may be hesitant to increase legal aid-spending, but she urges them to be creative.

"It doesn't necessarily mean a free lawyer. It can mean other things like more legal clinics, more duty counsel who work in the courts to just help with those difficult procedures. It could mean more advocates who aren't necessarily lawyers."

This report by The Canadian Press was first published Dec. 6, 2019.

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