Manitoba

Defence lawyers warn of job action to force Manitoba to raise legal aid pay

Manitoba's defence attorneys considering job action if the province doesn't increase the amount it pays for legal aid.

'The status quo isn't tenable. We need some sort of movement on this'

Manitoba's defence lawyers won't say what type of job action they are considering, or when it might start, but believe something needs to be done to get the government to increase the legal aid tariff. (Ryan Cheale/CBC)

Manitoba's defence attorneys are considering job action if the province doesn't increase the amount it pays for legal aid.

"We certainly are considering various forms of job action. It's not something we take lightly," said Gerri Wiebe, president of the Criminal Defence Lawyers Association of Manitoba.

"I want to stress that we're not threatening anything immediate at this stage but we certainly are exploring different job actions that we could use to get the government's attention."

The province pays a tariff to private defence attorneys who take on cases for people who cannot afford their own lawyers. But Wiebe says that rate of $80 an hour hasn't increased in 11 years, even though the cost of living has gone up 17 per cent in that time.

In 2003, the association went on a full-out strike to have it increased. They don't want to do that again, but the government is pushing them in that direction, said Wiebe.

The CDLAM has established a committee to make recommendations for job action but Wiebe would not discuss what that would entail or when it might begin.

Gerri Wiebe, president of the Criminal Defence Lawyers Association of Manitoba, says defence lawyers are increasingly turning away from legal aid cases because they just can't make their businesses work on the low tariff. (Bueti Wasyliw Wiebe)

To be clear, no lawyer is taking home $80 an hour, she noted. If you are an associate at a firm, your cut is maybe 50 per cent and that is further decreased by taxes.

If you own the firm, that money goes to pay everything from researchers and other staff to business taxes and office equipment.

"At the end of the day, what you're working for isn't anywhere near $80 an hour," Wiebe said, explaining that lawyers are required to submit to the province the number of hours they expect to bill for any given case.

Most work beyond that, putting in their own time as cases are becoming more complicated.

"The return is simply not there" to keep doing it, she said. "So you have a number of lawyers who are increasingly not taking legal aid [cases] because they just can't make their businesses work on a legal aid basis."

That impacts access to justice, particularly for the more vulnerable people in society, she said.

In the end, junior lawyers are going to be taking on more serious cases even though they might not have the experience, skills or resources to do the best job, she said.

Waiting on the province

The CDLAM has been asking the provincial government since 2017 to increase the tariff, or to at least meet and talk about it, but has been continuously dismissed, Wiebe said.

The association first met with the previous justice minister, Heather Stefanson, and in February 2018 a set of recommendations was sent to the province outlining what the CDLAM believed was necessary.

One of those was simply a cost-of-living increase to the tariff, Wiebe said, adding "but there has been no response."

More recently, the association reached out to Stefanson's successor, Cliff Cullen, in August of 2019.

At that time, he promised to meet with them before the provincial election in September, according to Wiebe. But when the group tried to set up some type of consultation, they were told it would have to wait until after the election.

Following the election, the group tried again and was sent a letter saying the government was still reviewing the Fineblit report.

Under Stefanson, the justice ministry commissioned lawyer Allan Fineblit, former CEO of the Law Society of Manitoba, to chair a committee that would create a blueprint to modernize the family law system in the province.

Fineblit, who also spent nearly 20 years with Legal Aid Manitoba, filed the committee's report in June 2018.

"There was a commitment to sit down with us and have a conversation and now that commitment doesn't seem to be being followed through on," Wiebe said.

"That's why we have to consider what job action we're prepared to take because the status quo isn't tenable. We need some sort of movement on this."

Justice Minister Cliff Cullen said lawyers who do legal aid work are "an integral part of Manitoba's justice system".

In an emailed statement Cullen wrote that he met with CDLAM in the summer and would be "pleased to meet again in the new year".

"We are currently looking at ways to address the [CDLAM's] concerns, examining the recommendations in the latest tariff report along with our review of the legal aid system," he wrote.

Justice troubles

The situation with the defence lawyers isn't the only one that has come up recently with the justice ministry.

A couple of weeks ago, CBC News obtained results of a survey sent to all Manitoba government employees in late 2018.

In every single category, the justice department scored lower than other departments.

It revealed employees — correctional officers, sheriff's officers, court clerks, lawyers, Crown prosecutors and probation officers — feel they are undervalued, have concerns about the leadership in their office and note a lack meaningful recognition.

More than 1,400 justice department employees filled out the survey.

That story came out a week after a Queen's Bench justice condemned the "dysfunctional bail system" in northern Manitoba's courts.

Justice Chris Martin called for immediate and substantial changes to be made to reduce the waiting time for people to apply for bail. He noted a lack of resources in the north are violating people's Charter of Rights of Freedoms.

"Certainly, the government is having issues dealing with the justice portfolio," said Wiebe.

Corrections

  • A previous version of this story had Gerri Wiebe stating that a private defence attorney who is taking on a case for someone who cannot afford a lawyer would make about 15 per cent. Wiebe actually stated that a lawyer would make 50 per cent. CBC News regrets the error.
    Dec 02, 2019 4:26 PM CT

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