Open Letter to Justice Minister Shandro RE: Legal Aid Alberta Funding

This is a copy of the letter I sent to Alberta Justice Minister this morning:

August 3, 2022

Via Email to: ministryofjustice@gov.ab.ca  

The Honourable Minister Tyler Shandro

Minister of Justice and Solicitor General & Deputy House Leader

204 Legislature Building

10800 – 97 Avenue

Edmonton, AB

T5K 2B6

Dear Sir:

RE:     Inadequate Legal Aid Budget has Roster Counsel at Breaking Point              

Criminal defence lawyers in Alberta continue to work incredibly hard for their indigent, highly-vulnerable clients and to maintain a struggling criminal justice system. They do this despite inexcusable underfunding by both your government of the Legal Aid Alberta (LAA) system over the last few years, as well as inexcusable conduct by LAA to minimize funding it provides to its roster counsel by refusing coverage and challenging invoices at every opportunity (note the CTLA’s comment that LAA engages in a “smoke and mirrors approach to cover up for the fact that they have been given insufficient funding to work with” – CTLA letter, dated July 15, 20220, p. 4 – press release).

While it is difficult to calculate the amount of money owed by LAA to its roster lawyers, it is straightforward to calculate the amount by which your government has underfunded LAA – and by extension, its roster lawyers – over the past few years.

Provincial government funding of LAA steadily increased from 2016 through 2019 (by 57%), and was then drastically cut by 35% through 2021, and slightly increased for 2022 to return back to 2018 levels. The 2022 amount was basically the same as 2017, which is inexcusable to say the least (particularly given the inflation rate of 17% since 2017).

Per the CTLA’s letter to you, emphasis added (p. 4 – and the CBC’s article dated Oct. 11, 2018), “In 2018 the NDP government added $14.8 million to the LAA budget, which was used to cover shortfalls for the 2018 year. The NDP committed to a further $17.5 million for 2019-2020, $16.6 million for 2020-2021 and $21.2 million for 2021-2022.”

The CDLA interprets that generously as a further $17.5 million for 2019-20 exclusive of the $14.8 million added to the year ending 2019 and onwards. While the CDLA’s numbers are somewhat inaccurate (p. 3), they tell a story of $54.6 million underfunded through 2022:

Year	Promised	Delivered	Arrears
2018-2019	$104.1M	$104.1M	Nil
2020-2021	$105.9M	$91.8M	$14.1M
2021-2022	$110.4M	$69.9M	$40.5M

The corrected version should read as follows:

Year	Promised	Delivered	Arrears
2018-2019	$104.1M	$104.1M	Nil
20-21 (19-20)	$107M	$91.8M	$15M
21-20 (20-21)	$105.9M	$69.9M	$36M
21-22	$110.4M	$82.3M	$28M
Total			$79M

That’s an additional $25 million unaccounted for in the CDLA’s numbers.

Be that as it may, it is unclear why the numbers should be read as generously as the CDLA does. A simple reading of “a further $17.5 million for 2019-20” is inclusive of the $14.8 million added to the year ending 2019 and onwards. As such, the correct numbers should read [extremely difficult to paste chart here]:

 

As you can see, the total shortfall (or arrears) owed by your government to LAA is a whopping $174 million (and counting) over the last 3 years alone. At best, reading as generously as the CDLA, the shortfall should be $79 million.

It is unclear to me why this massive shortfall has hitherto been unaddressed by LAA, CTLA, CDLA, etc.

As I pointed out in my latest weekly criminal law update (#1):

Finally, Alberta’s criminal defence lawyers are mobilizing to address the $174 million funding shortfall from the provincial government to Legal Aid Alberta over the last 4 years: Alberta legal aid lawyers threaten job action over ‘funding neglect’ | Edmonton Journal (also Calgary Herald, CBC, Calgary Sun). Correct numbers here (spreadsheet).

I have also blogged about my concerns previously: The train wreck that is Legal Aid Alberta – Moldofsky Law.

I will not get into further detail, such as LAA’s roster spend decreased 16% from 2017 to 2022, while its internal spend increased 26% over that time period. The numbers speak for themselves, and are appalling.

I have reviewed your letter addressed to Mr. Savage, CDLA president, dated Aug. 2, 2022, stating that you are open to eventually consider increasing LAA’s budget, and that, among other things:

Access to justice is essential for Albertans. I encourage you to work with Legal Aid Alberta on their administrative review of the current tariff system. I am confident Legal Aid Alberta’s work on modernizing the tariff system will create many administrative efficiencies increasing accountability, sustainability, and transparency of our legal aid plan.

With the greatest respect, we do not need your platitudes. Nor do we need to “modernize” any LAA tariff system. What we need is for your government to honour its unmet commitment of $174 million over the last 3 years. I technically write only for myself, although I suspect many other defence counsel in Alberta share my views. I am gratified that CTLA, CDLA and other organizations are banding together to send a strong message to your office.

As the CDLA pointed out (p. 8 of its letter), the CBA reported that every dollar spent on Legal Aid returns $6 of public funds saved elsewhere (p. 2, CBA Backgrounder).

Solidarity from LAMDA and WiCCD is appreciated:

Defence counsel work tirelessly to safeguard the rights of some of Alberta’s most marginalized and vulnerable people. They provide skilled and necessary assistance in every corner of the province. They have done so in spite of rates that are a fraction of what Legal Aid organizations in other provinces pay, and with allocated hours, which mean they do much of their work for free.

I eagerly await prompt, public statements of solidarity with the defence lawyers of Alberta from the following organizations (not a complete list):

1. All levels of Court in Alberta
2. Criminal Lawyers’ Association (Ontario)
3. Alberta Crown Attorneys’ Association
4. Canadian Bar Association – Alberta branch
5. Legal Aid Alberta
6. Law Society of Alberta
7. Calgary Bar Association

I trust the above to be satisfactory and ask that you please contact me directly with any questions.

Yours truly,

Moldofsky Law

Efrayim Moldofsky

Barrister and Solicitor