In the past 20 years, funding for legal aid has been cut to such an extent that most people cannot obtain funding for their legal issues.

The funding that still exists for some areas of law (family, criminal, immigration) is such a small amount that lawyers who want to work for people on legal aid will not be in a position to do so for much longer.

This month, Reasonable Doubt will focus on access to justice. Last week, Mike McCubbin started us off with his piece on why access to justice is critical to a democratic society.

For further thoughts on why a robust legal aid program is important, check out this article by Kasari Govender of West Coast LEAF and Kendra Milne, a social justice lawyer.

The response to raising the issue of no funding for legal aid is often met with criticism and backlash from the general population, which claims lawyers are trying to take advantage of the system and pour endless amounts of money into their own wallets. If not that, then stories circulate about how one person’s lawyer didn’t represent them very well at all and claimed tons of the money from the government.

What most people—and lawyers that do not practice criminal law—realize is how little their criminal legal aid lawyer is paid.

In B.C., this is what criminal legal aid lawyers earn on the average provincial court file and this is the necessary effort they put into their cases.

Pre-Trial

(Time a lawyer may spend on a file in this stage: five to 30+ hours)

There is a first appearance in which you are brought into the system. Not much happens at this appearance, but you and/or your lawyer must appear. From this point onward, there can be any number of appearances in court as your lawyer gets your paperwork, gets you into a variety of social programs to deal with your addiction or anger issues, negotiates with the Crown so that your release conditions are not too restrictive, and perhaps comes to a suitable resolution of your case.

Then there is an arraignment hearing in which you plead guilty or not guilty. If you plead not guilty, your lawyer reserves dates in his or her calendar for your trial and sets it down for trial. 

About six weeks before trial, there is a trial-confirmation hearing. This is another court appearance that your lawyer must attend on your behalf to confirm that you’re ready to proceed to trial.

In between the start of your case and this moment, there is certain to be wrangling with the Crown to ensure that all the disclosure has been made, as well as several meetings with you to make sure that your lawyer understands your case and that all your needs are being met.

For all this, your lawyer is paid a one-time fee of $75, $85, or $100 depending on the seriousness of your case.

Bail Hearings

(Time a lawyer may spend on a bail hearing: two to 10+ hours)

Sometimes to start the process off, a lawyer may need to run a bail hearing to try to get a client out of jail. This can mean hours waiting in in court; negotiating with the Crown ahead of time; looking at the paperwork; countless phone calls to the Crown, family, and support workers in the community; legal research; interviewing with the client; negotiating a plan; and, of course, the hearing itself.

In provincial court, a lawyer running a bail hearing is paid a grand total of $100, $125, or $150.

Visiting clients in jail before trial

Sometimes clients are in custody and they need to see their lawyer. Lawyers on legal aid will be paid a one-time fee of $90 for visiting a client in custody—this means when a lawyer drives out to make a special visit a client in a jail, not when they visit their client in a holding area in the courthouse.

The lawyer may need to go several times or speak with their lawyer for a long time; the $90 is a one-time fee irrespective of how much time the lawyer spends with their client.

Non-trial Resolution

The next block fee available is for those cases that don’t end up going to trial, which could happen for many reasons. Often it means that your lawyer has put in many hours of effort (anywhere from five to 50 hours or more) to make sure that you get the best possible outcome without dealing with the uncertainty of a trial.

That lawyer will be paid a fee of $160, $200, or $300. There will be no other opportunities to earn any money on this file once a non-trial resolution is reached.

Sentencing

(Approximate amount of time a lawyer may spend on a sentencing: two to 20+ hours)

Should you plead guilty, your lawyer will conduct a sentencing hearing for you. This means interviewing you in-depth, perhaps getting reference letters on your behalf, talking to your family, talking to support people in the community who are going to keep you on track when you serve your sentence, negotiating with the Crown and reviewing your case, and the hearing itself. It can also mean time spent waiting in the courthouse for Crown, judges, clients, and everything to come together.

Regardless of the amount of time spent on the sentencing hearing, your lawyer in provincial court will be paid a one-time fee of $80, $100, $125.

Trial

If your case goes to trial, this means your lawyer has spent the most effort in speaking to you, reviewing the Crown’s case, doing legal research, speaking to other lawyers, learning about the judge, hours preparing a cross-examination, interviewing witnesses, building a case in your defence, and preparing submissions. On top of this is the time spent in the trial itself.

For the first day in trial a lawyer is paid $480, $600, or $800. If your trial is longer than one day, then the lawyer is paid by the half-day spent in court. Each half-day in court is paid $315, $390, or $490.

Keep in mind for each hour in court, a lawyer will spend four to five hours outside of court in preparation. For a one-day trial, that means 24 to 30 hours of time simply devoted to prepping the trial. That works out to be about $22 to $27 an hour for the time your lawyer spends on your one-day trial if your case is fairly serious.

These rates discourage the best and brightest from doing this kind of work. In fact, fewer and fewer people are practicing criminal defence work these days.

Though you may not understand how people can practice criminal defence and sleep at night, every free and democratic society needs a strong and vibrant criminal defence bar or they slowly see their accountable government, civil liberties, and freedoms disappear.