‘Devastating impact on justice system’: Calgary lawyers shocked by end of legal aid in Alberta

The fair and effective administration of justice for Albertans appears to be under threat as Legal Aid Alberta (LAA) is set to cease operations in a week.

That’s according to the Criminal Defence Lawyers Association of Calgary, the Criminal Trial Lawyers Association of Edmonton, the Southern Alberta Defence Lawyers’ Association and the Red Deer Criminal Lawyers Association on July 2, following news that the province of Alberta had failed to reach a new governance agreement with Legal Aid Alberta.

Indeed, as of July 9, without a governance agreement, lawyers registered with Legal Aid Alberta would not be able to accept new clients.

The LAA, which has operated in Alberta for over 50 years, has issued over 300,000 certificates to ensure representation for Albertans since 2019.

During the 12-month fiscal year ending April 1, 2024, the LAA issued 18,288 certificates in Calgary, a 13% increase from the previous year.

In a letter sent to Legal Aid registered lawyers by Legal Aid Alberta board chair Ryan Callioux, he wrote that the current agreement ended June 30 despite negotiations with the Alberta government.

“For those of you who don’t know what the governance agreement was, it was an agreement between the Law Society of Alberta, the Government of Alberta and Legal Aid Alberta that codified how we operated,” he wrote.

“She ensured the independence of Legal Aid Alberta, while respecting the role of government in ensuring the efficient use of funds, and the necessary role of the Law Society of Alberta in ensuring the sound practice of law in the province of Alberta.”

Callioux said it was in the government’s interest to reopen the agreement and that Alberta Legal Aid believed the previously negotiated agreement was working well and should have been extended.

A tripartite agreement signed in 2019 between the Government of Alberta, Legal Aid Alberta and the Law Society of Alberta.

Province seeks to exclude Law Society of Alberta from legal aid governance

Criminal defence lawyers from across the province, in a joint statement, have expressed their outrage at the Alberta government’s proposal to remove the Law Society of Alberta from the legal aid agreement and move Legal Aid from an independent, arm’s-length organization to part of the Alberta government.

“It is a fundamental principle of justice that the person who prosecutes a person must be distinct and independent from the person who defends him. Under the terms of the government’s last-minute ultimatum, this fundamental principle would be destroyed. The repercussions of this change will be greater than those of criminal defense,” the associations said in the joint letter.

“Legal aid funding also affects the administration of family law, child protection and immigration matters.”

Alberta Legal Aid has been given until July 1 to sign a new agreement with the Alberta government.

Callioux called the situation untenable for Legal Aid Alberta.

“The independence of Legal Aid Alberta would be significantly restricted, including in that the Minister would have the power to unilaterally determine that Legal Aid Alberta’s financial position is sufficient such that funding that would otherwise be provided is not required,” he wrote.

“The total amount of funding and the payment thereof could be adjusted at any time at the sole discretion of the Minister…in general, the grant agreement is heavily biased in favour of the Minister, with virtually no meaningful obligations on the part of the Minister, including any obligation to continue funding.”

If Alberta Legal Aid were integrated into the Department of Justice, the Alberta government would be able to decide who to prosecute and who would fund the legal defence.

Speaking to LWC, Pawel Milczarek, vice-president of the Criminal Defence Lawyers Association of Calgary, said there are already problems surrounding the Alberta government’s funding of the LAA.

“Because legal aid is in charge of the purse strings, being essentially funded by the government, that’s the problem,” he said.

As part of the 2022 provincial criminal defence lawyers’ union action, the CDLA, among other associations, advocated for increased funding for the LAA and better access to legal aid for Albertans.

“Without negotiations between Legal Aid and the Alberta government, the justice system would suffer devastating consequences. The paralysis we would find ourselves in would be unprecedented, because even at the height of the Legal Aid strikes in 2022, duty counsel services were still in place,” said Milczarek.

“From what’s been proposed, the only thing, the only party that would be completely eliminated would be the Bar. And basically the Minister of Legal Aid would have tighter control over funding and what they fund. So that’s the main source of change that’s being proposed, but it’s not insignificant.”

In his letter to staff lawyers, Callioux called the government’s request a “quick decision.”

“The minister was fully aware that we would not have sufficient time to respond because it was not reasonable to expect the board to review its terms, reasonably consider its impact on the organization and, by extension, on vulnerable Albertans, and respond within the time frame imposed,” he said.

In a statement by officials on behalf of Justice Minister Mickey Amery, they said a balance must be struck between providing high-quality justice and accountability to taxpayers.

The statement said the ministry believes Alberta Legal Aid has sufficient funds to continue operating with a strong roster of lawyers, as well as its day-to-day operations.

“The Alberta government remains committed to working with Legal Aid Alberta to ensure that legal aid is well funded to continue to provide high-quality legal aid services to Albertans. It is also imperative that we are responsible stewards of taxpayer dollars and that funding is spent in the best interests of Albertans,” said a Justice spokesperson.

“The current governance agreement with Legal Aid Alberta expired on June 30 and we are working diligently to put in place an interim grant agreement that will ensure Legal Aid Alberta receives the funding needed to maintain its operations. As of the end of May, Legal Aid Alberta had a cash balance of over $82.1 million.”

According to LAA’s audited financial statements for the 2023-24 financial year, of the cash balance remaining at the end of the financial year, March 31, 2024, $74 million of this cash has been restricted as deferred revenue to be recognized as an expense upon completion of the LAA certificates.

An additional $8.5 million in cash was held in deferred contributions, intended to cover unforeseen and unbudgeted costs. Of this available money, the province provided $1 million, while the Alberta Law Foundation provided $7.5 million.

Callioux said the Alberta government failed to make a payment that was due to the LAA on April 1 under the agreement.

“We expected this to happen. We have a legal obligation to preserve the remaining funds so that Legal Aid Alberta employees and the service providers who serve this organization can continue to be paid.”

The Justice Department said a $27.5 million payment to the LAA was being processed and it was waiting for the LAA to enter into a grant agreement.

“We are confident that the funds we have already provided to Legal Aid Alberta are sufficient to maintain a strong team of lawyers and to ensure day-to-day operations in the months ahead as we finalize a new grant agreement.”

Calgary lawyers caught off guard by government actions

Milczarek said that while details regarding the status of Alberta Legal Aid were still up in the air, serious consequences for Alberta’s justice system were likely to be seen.

“We were given to understand that I am legally in Alberta and that the Alberta government is working on a new version of the governance agreement, which expired in April. What happened is that at the end of April, they extended the agreement for three months and they have been working on that,” Milczarek said.

“We were quite surprised, in the last few days leading up to this announcement, to see that there was no progress on this point.”

He said the unprecedented consequences would mean the end of new representation for Calgarians and Albertans.

“The information we are receiving indicates that as of July 9, not only will people seeking criminal defense assistance from Legal Aid be unable to do so, but virtually everyone else will be unable to do so. The functions of the justice system will essentially be disrupted for anything that comes through the system,” Milczarek said.

“From the information we’ve received, this could also extend to legal aid lawyer services. What we’re being told at the moment is that this could very well include privately funded lawyers and other people before the courts, as well as people who have already benefited from legal aid certificates. Everyone else would effectively be unrepresented.”

He said the reaction from associations to the Alberta legal aid announcement was shock.

“We certainly support Legal Aid Alberta in the services they provide to the most vulnerable people in our justice system. I guess the message is that we hope the Alberta government recognizes that this issue needs to be addressed very quickly or there will be significant problems in the administration of justice across the province,” said Milczarek.