The right to state funded counsel

Budgetary cutbacks v. Fundamental rights

Steven G. Slimovitch, lawyer

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Even the intelligent and educated laymen has small sometimes no skill in the science of law. If charged with a crime, he is incapable generally of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he may have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. »

Powell v. Alabama (1932) 287 U.S. 45 (United States Supreme Court)

Awave of change is sweeping over the criminal justice system which has profound impact on all members of the Bar regardless if like myself they do not represent legal aid defendants or even if they do not practice criminal law. With governments attempting to balance their budgets, huge cutbacks have been made in regards to legal aid. In effect the criminal courts are seeing a new phenomena: an accused representing himself because he cannot afford an attorney and legal aid having refused coverage.

How does legal aid work

For approximateley 20 years Québec has had the benefit of an extensive legal aid system which in effect provides to an indigent accused the services of counsel at state expense. The legal aid system works very similar to Medicare, with one very important difference in that the beneficiary having to attend at the legal aid office to secure his admissibility for the specific accusation he is facing. Once obtained he then decides to be represented by a legal aid staff lawyer or a private practice lawyer who would be willing to accept the mandate. Although no official numbers are available, estimates put the number of legal aid defendants at roughly 75% of all accused.

With the coming into force of the new provisions a new era of legal aid was born. Briefly, the eligibility requirements in criminal case have been radically altered with the effect that although (according to government calculations) more defendants are eligible because the income ceiling has been raised, certain types of offenses have been excluded. Briefly for our purposes, legal aid will now be denied for summary conviction offenses where there is no reasonable possibility of jail. Therefore legal aid will no longer be granted for impaired driving, simple assault, shoplifting, some cases of sexual assault, fraud, etc. This has had numerous consequences some of which are extremely serious.

First and foremost trial judges have become «legal assistants» to accused persons. Precisely because numerous appeal courts have held that there is a duty on a trial judge to "aid" an un-represented accused, the trial judge has now been put in a precarious position. In fact our court of appeal has recently held that by law a trial judge must give an un-represented accused: «une aide suffisante et appropriée pour lui permettre de présenter sa défense de la façon la plus complète possible de manière à lui assurer un procès juste et équitable». He is no longer able to simply listen to the evidence marshaled by the parties, but now has to take a far more active role and see to it that the un-represented accused understands the process and his rights therein. Furthermore, in addition to having placed this added responsibility on the shoulders of the trial judge, in many cases this has had the effect on lengthening the process itself.

Second, now that the accused has become his own attorney, he is of course the one who will examine and cross-examine the witnesses. Therefore we have the situation where the alleged assailant is cross-examining the victim. In certain situations, we even have an alleged rapist cross-examining the rape victim. Therefore all the stress and truma that the victim would normally suffer from testifying against her abuser is only heightened by her having to answer his questions directly.

Third and perhaps most troubling to members of the Bar, is the possibility for conviction of an un-represented accused precisely because he was unable to properly put his case before the trial judge. As the Manitoba Court of Appeal has written: «The legal system in Canada is mainly adversarial. It works best when each side is represented by a qualified advocate. Inevitably a litigant in person is at a disadvantage. In strict theory this should not be so, but it is fact, and there is no use denying it. Beyound representing himself in a speeding case or the like, an accused not only lacks the professional capacity to carry on his own defense but furthermore, he necessarily lacks the impartiality required to make crucial strategic decisions. For example, in an effort to « prove» his innocence an un-represented accused will often feel the need to testify in his own defense. Although to the layman this may appear advantageous to his case, his testimony may give the trial judge a reason to disbelieve the defense's version of events, and moreover, this may be so simply because of the nervousness of the accused.

Clearly an un-represented defendant places the entire legal system in a very troubling position. On the other hand government funding is necessarily limited and must be distributed on a per need basis. Yet one wonders in an adversarial system such as ours, should not the prosecution bear a responsibility for the funding of the defense. If the accused is truly to have a constitutional right to a «fair trial», does this not necessarily imply being on an equal footing with the prosecution in every respect?

 

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