The train wreck that is Legal Aid Alberta

I have lots to say about Legal Aid Alberta (LAA) and its funders. They’ve slashed their budget drastically the last few years – with an extreme, detrimental impact on both the public and the lawyers who depend on it for their livelihoods. Given their very tight budget (and drastic reductions in funding from Alberta’s provincial UCP government), they’ve made the decision to fund far fewer matters (certificates), for less money per certificate, and to nickel-and-dime its roster lawyers to exasperation.

LAA admits as much: “we committed to reimagining the way we operate to refine our business processes to maximize our funding dollars—and ultimately enhance our services to clients” (p. 6 of PDF, 2019-2020 LAA Annual Report, emphasis added). Everything else about the reports demonstrates this as well. Below, I will detail the dollars and cents.

Average cost for Level 1 certificates (adult) was $1,152 in 2020 (about 70% of all certificates – criminal is about 80% of total certificates) – slightly lower for youth at $853 (p. 13). Down to $1,074 in 2021 (p. 17) – a relatively small reduction of 7%. Average family law certificate spend was $3,391 – p. 14 – 3 times the spend for adult Level 1 criminal certificates.

LAA’s total spend in 2020 was about $70 million for certificates (drastically reduced by 35% last year) and about $41 million for internal expenses (staff, lawyers, overhead, etc. – p. 27), which totals ~$110 million – about the amount they made in revenue that year (approx. 80% from AB government). Legal Aid has 300 staff (including lawyers) and 1,200 roster lawyers (p. 8 – here).

For the next year (last year – 2020-2021), the average cost of duty counsel roster certificates went down about 15% from the 2 previous years (p. 17, 2021). Interestingly, the total number of Level 1 certificates went down from 20,000 or higher over the previous 3 years to a mere 13,000 in 2021 – a reduction of 35% (in addition to the 35% reduction in total certificate spend, 25% reduction in criminal certificate spend, and 12% reduction in criminal per certificate spend). The number of Level 1 youth certificates went down by a full 50% (p. 18). Interestingly, youth certificates had far less fluctuation in cost per certificate (looking only at Level 1 and 2/2.5) than adult certificates from 2020 to 2021.

Family certificates, on the other hand, went up in cost per certificate (about 20%) last year – p. 18, although the total number of family/child welfare certificates issued also decreased drastically (by about 50% – even higher if you look at previous years). Immigration certificates also were drastically reduced (about 70% in quantity) but increased in cost per certificate (about 20%).

Average Level 2/2.5 certificate spend was $2,354 in 2021 – down more than $200 from the year before (considering that there are 6,741 such certificates – a total savings of approx. $1.5 million right there; similar to the total savings per Level 1 certificate from the previous year). The total savings on Level 3 certificates is about $1 million. Per certificate savings total about $4 million (about 12% of total spend on criminal certificates of $31 million) last year then – even forgetting the drastic 35% reduction in number of certificates, which seems to have saved LAA another ~$30 million.

Total revenue in 2021 was only $70 million from the province (a reduction of $20 million). Total savings on criminal adult certificates was about 25% from 2020 to 2021 (from $42 million to $31 – p. 31). Spending on family certificates was reduced from $17 to $9 million – about a 50% reduction. While LAA’s overhead and staff expenses experienced a slight increase, their total spend on roster went down drastically from $69 million to $45 (35%) in a single year. So the total “pot” available for the roster was cut by more than one-third in one year alone.

Note that Ontario’s total Legal Aid expenses was reduced a more modest 15% in 2021 (p. 36) – and government revenue was stable (p. 34), although they’re expecting a huge, appalling 30% decrease in provincial funding this year, despite significant and necessary pushback from both the defence bar and the judiciary. A slight reduction in average cost per criminal certificate in Ontario (p. 28 – $1,750 to $1,672 – about 5%; similar to the reduction in cost per certificate in Alberta – and also cost per certificate, although Ontario had much less of a drastic reduction in number of criminal certificates issued – about 10% there to 35% in Alberta – see. p. 26).

In Ontario, the tariff is also much better to counsel, as it generally pays a lot more. Further, the hourly rate is significantly higher than Alberta’s (by some 10-60%), and BC’s hourly rate is even higher. Total spend on criminal certificates increased from 2020 to 2021 in BC (p. 23).

All this in a time when criminal cases are supposedly at an all-time high, with record numbers of new judges and crowns being hired (all unionized and compensated quite comfortably, of course). Note, “The release said that in the past two years there has been a 12 per cent increase in the number of active criminal cases.” So, criminal cases in Alberta have not at all reduced – merely LAA’s willingness to fund them (by 35%), and for the few that they do fund, they insist on pinching every last penny.

Note that LAA had a surplus of nearly $7 million last year (p. 31 – I wonder how much of that total is owed to its roster lawyers?), and pretty much “broke even” the year before. Instead of “streamlining” or “modernizing” the tariff, they could start by paying a reasonable wage, treating roster counsel with basic decency, and not drastically reducing the number of matters it funds in one year (by 35%, with a subsequent reduction in roster spend of 40% – particularly when their internal expenses increased – clearly, their salaries didn’t go down, while we were chopped by up to 40%).

Looks like LAA tried to pay call centre agents up to 18% less a couple of years ago. LAA appears to have a single-minded focus, and that is to save every penny possible. Whether that’s consistent with their duty to the public or to roster counsel appears to be irrelevant, in their view. Their “relationship” and “trust” with roster lawyers appears to be at an all-time low, and it’s not clear that they care about that one whit (note their disrespect to senior counsel about the contract they force roster counsel to sign, referred to by senior counsel as “shocking” and “disrespectful”). Note also their ironic claim to conduct “business to the highest ethical standards” (p. 8), which is especially hilarious if the person “in power” who attempted to bribe said senior counsel in the above article by offering her a vaunted Q.C. appointment were she to essentially shut up was on LAA’s payroll.

I’m looking forward to LAA’s 2022 report – I suspect it will be released in July (last year’s was July 27). I definitely hope it’s not as awful as 2021 (July 2022 edit: here it is. Roster spend went up by 15%, and provincial funding increased 18% – I’ve made a handy spreadsheet here).

Looking at Alberta’s provincial budget alone; its health budget is $22 billion next year (p. 127) – more than a third of its total budget. Education is $8.4 billion (p. 131) – not including post-secondary. Its funding of Crown prosecution service (ACPS) is $99 million (includes prosecutors, already well-paid, who received a significant and well-deserved pay bump recently; note, it does not include federal prosecutors for drug offences) – 3 times what LAA paid for adult criminal roster counsel, $63 million for “Victims of Crime and Public Safety Fund” (almost twice what LAA paid for adult criminal roster counsel), some $215 million for Court and Justice Services (judges who are paid approximately $0.5 million each per year if you include pension, etc. which is apparently not enough; note 13 new Alberta judges appointed just recently – possibly includes Legal Aid) – a 10% increase from the last year (p. 137), for a total of a whopping $1.48 billion for the justice system (also includes exorbitant amounts to police and prisons – provincial only; as an aside, the $0.5 billion the province spends on police is separate from the other $0.5 billion spent by the City of Calgary alone on its police services). A mere $31 million spent by LAA on roster counsel for adult criminal certificates, and $42 million on total roster (includes family, immigration, youth criminal, etc.). The total of $42 million spent on legal aid certificates is down a shocking 40% from the year before. I will put some charts below.

It’s very simple, LAA and provincial governments around the country: either fund Legal Aid properly or continue to decimate the strength and independence of the defence bar, openly encourage wrongful convictions and inappropriate guilty pleas, and make it more obvious how little you respect the vital work of the criminal defence bar by funding them exponentially less than everyone else in the justice system. Your call – not mine.

 

Charts

Published by Efrayim Moldofsky

I am a criminal defence lawyer in Calgary, Alberta.

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