Manitoba Legal Aid Challenge

If a person is accused of committing a criminal offence, access to a lawyer is essential for fair treatment. For example, a lawyer makes sure that:

• a person understands the case against them;
• the evidence in the case is properly reviewed;
• violations of Charter rights by the police are identified;
• and a person receives an effective defence.

Criminal legal aid is intended to ensure that a person’s financial circumstances do not prevent them from being represented by a lawyer. The federal government and each province or territory are jointly responsible for funding criminal legal aid. It is widely recognized that criminal legal aid is seriously underfunded in Canada. As the Senate Standing Committee on Legal and Constitutional Affairs has put it, “too many Canadians who do not qualify for legal aid still cannot afford legal representation.”[1]

In Manitoba, the underfunding of criminal legal aid is particularly dire. The province has some of the lowest funding per case in Canada. The income cut-off to receive legal aid has not kept up with the cost of living.

A single person making more than $31,500 may be disqualified for legal aid on that basis.

The level of coverage provided often does not reflect how much work is required and the increasing complexity of criminal trials. For example, a contested bail hearing will only be funded for two hours of work, even though it may require more preparation time. In other cases, people are denied coverage if jail time is not a possibility in their case, even though a criminal record carries life-altering consequences.

[1] Senate Standing Committee on Legal and Constitutional Affairs, Report 19 on Urgent Need to Address Lengthy Court Delays in Canada, 42nd Parl., 1st Sess. (2017), at p. 8.

Without adequate legal representation, people may feel pressured to plead guilty without fully understanding their options or may enter false guilty pleas. They may also face a greater risk of unjustified detention, inadequate preparation for trial, unfair trial proceedings, and one of the worst possible outcomes: being convicted of a crime they did not commit. The CCLA argues the underfunding of criminal legal aid violates several rights under the Charter, including:

• Section 7: every person has the right to life, liberty, and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice;
• Section 11(d): any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

In Manitoba, Indigenous people are also disproportionately represented in the criminal justice system. They often have a greater need for legal aid because, owing to Canada’s history of discrimination, they face higher rates of poverty.

One-quarter of legal aid criminal applications by Indigenous accused in Manitoba were refused according to recent available figures.

The perpetuation of disadvantage against Indigenous persons by the denial of criminal legal aid violates the section 15 right that every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination.

Impact on the System

In addition to the direct impact on Charter rights, people representing themselves place significant pressure on the day-to-day functioning of the criminal justice system. The absence of a lawyer to navigate the system sharply increases the demand on court and judicial resources. That means justice is delayed or denied for both complainants and accused alike.