By Ola Malik, Ian Savage, Jackie Halpern, Q.C., Shelagh McGregor & Jordan Stuffco
Dear Minister: We are in a crisis. It’s not a crisis you created alone. The crisis is one that consecutive governments have contributed to over the course of decades. It’s a crisis that you inherited. This crisis is on the verge of being irreversible. And we’re here to help.
Inadequate funding and the failure to ensure that our administration of justice is fully supported with the infrastructure it requires to properly function undermines judicial independence and the maintenance of our judiciary as a strong, viable, third branch of government. This goes to the core of what we are as a democracy.
As former Chief Justice Beverley McLachlin stated in a speech entitled “Canada’s Legal System at 150: Democracy and the Judiciary”:
||Maintaining the proper balance between the legislative, executive and judicial branches of governance requires constant vigilance. Tensions are inevitable, and the temptation to stymie or suppress those perceived to stand in the way is ever present. We need not look far to find current examples of countries where once independent courts have been weakened or brought to heel by the executive or legislative branches of governance. The inevitable result is to erode public confidence in the impartiality of the courts. When this happens, disrespect for the law and the rule of law cannot be far behind.
For years, funding of the infrastructure and support services that make Alberta’s justice system work—court buildings, technology systems and business processes, court clerks and administrative staff, prosecutors and other government lawyers, duty counsel, Legal Aid, victim support services and judges—has (when set against Alberta’s growing population) fallen steeply in decline.
This isn’t surprising. Timely and effective access to legal services aren't things that often come up at election time and investing money into our legal system is wrongly perceived as enriching lawyers.
But it’s not about lawyers, and it never has been. It’s about something bigger.
It’s about Albertans – the few lucky ones who can afford to pay a lawyer and the much larger number of self-represented litigants who can’t. If you’re poor, chances are you still won’t qualify for Legal Aid coverage. That means that if you’re charged, you’re more likely to find yourself in custody while you wait for your trial. And even if you get released, you’ll find yourself trying to navigate a court system that you don’t understand. If you’re an Alberta business owner with a civil or commercial dispute, it will take three years before you can even have your trial heard and then months before you finally get your decision. And if you’re going through separation or a divorce, you’ll face months of delays trying to deal with child custody, access and support issues when you’re facing the most financially and emotionally fraught time in your life.
Our courts are by necessity having to triple book trial dates so that no courtroom stands empty. But this makeshift solution results in adjournments and delays when matters finally proceed. New matters are coming in faster than they can possibly be dealt with. If you’ve been the victim of a serious crime, don’t expect your day in court, because prosecutions take too long and because of that, often get withdrawn.
We respect this government’s decision to cut spending. That’s a platform this government ran on and has the mandate to deliver. We understand the difficult decisions you’re being asked to make. Because making those decisions means you’ve got to pick winners and losers.
But making big changes is tricky business that requires careful forethought, systems-wide thinking and collaborative decision making. Because a decision made over here will affect something over there. Because you can never be certain of what’s on the other side. Because someone’s best intentions often have unintended consequences.
Cutting funding to core services and programs in the fall of 2019, including the $5 million cut to Legal Aid Alberta without any prior consultation with its board of directors, has unintended consequences that will ultimately cost more than it saves. We know that every dollar spent up-front on legal aid saves more than $6 in consequential spending later. We know that providing people with access to legal services significantly reduces the $800 million that this government will spend a year on health care or social assistance for people whose unmet legal needs have snowballed into other, more serious, issues. We know that specialized provincial court programs, such as the Drug Treatment Court, Indigenous Court, Mental Health Court and Domestic Conflict Court provide meaningful and focused interventions for people whose unique life challenges require different approaches. These measures reduce burden on our justice and corrections systems front lines while saving governments money down the road.
Eliminating 90 Alberta Justice civil lawyers from virtually every government department who are specialized in the work they do, lawyers who are doing it better and cheaper than anyone else, may end up costing this province more in the long run. There will be no cost savings if those positions are outsourced to people to do the same work on an hourly fee basis and who don’t have the same background required to fully understand their clients’ needs.
The courts in this province have survived on shoestring budgets and paltry handouts for years. Successive governments have trimmed here and there, reducing the courts to bare bones operations. But the courts’ caseloads are increasing. Cutting funding to our court budgets (which are for the most part comprised of personnel costs) will result in courts having to lay off essential support staff, halt creative court-initiated projects that increase efficiencies and save money, freeze desperately needed judicial appointments including Masters, extend lead times for trials and Chambers hearings even further, and will most certainly launch us, Thelma & Louise style, over the cliff on Jordan applications.
We respect your decision to hire fifty new Crown prosecutors because this is a public policy decision that is within your authority and expertise and falls within your legitimate mandate. But neither your Ministry nor these new prosecutors will put a dent in rural crime if additional resources aren’t also allocated to deal with the increased volume of work these prosecutors will generate throughout every aspect of our court system, including corrections and social support services.
If realized, your Ministry’s proposal to eliminate the Civil Division of the Provincial Court by diverting claims under $25,000 to an arbitration process with the remainder going to the Court of Queen’s Bench is likely irreversible. A decision of this magnitude represents a fundamental shift in how civil claims are dealt with and shouldn’t even be contemplated without significant consultation. Further, it will flood the Court of Queen’s Bench with a new influx of civil claims. And it will place additional burdens on civil litigants who will have to come to grips with the increased cost, procedural complexities and lead times required to proceed with their lawsuit in the Court of Queen’s Bench.
And this is just the beginning. While the Ministry of Justice is forecasting a spending decrease of $3 million for 2019, we understand that there will be an additional $96 million reduction within the next four years. But spending on the justice sector isn’t a big-ticket item – currently, less than 1% of the Alberta budget is spent on the courts and provincial prosecutors. Reductions such as those your Ministry have proposed will decimate the Alberta justice system with grave and irreversible outcomes for Albertans.
We are concerned that government is making decisions that affect all Albertans’ access to justice without meaningfully consulting either the legal profession or the public. Our respective organizations and others have been working hard to schedule meetings with you and with members of your government to discuss and address matters that we know are as important to you as they are to us and to all Albertans. Like you and your government, each of our organizations is committed to ensuring that Albertans have an effective, efficient, sustainable system of justice of which we can all be proud.
We are concerned when we hear, without any consultation, about major structural changes and budget cuts that will cripple how our legal system meets the most basic needs of Albertans.
We are concerned that we haven’t heard from the Justice Ministry a full-throated endorsement, complete with the necessary matching financial support, of an Alberta Family Court, something that all levels of court and stakeholders in this province have agreed is the only sensible way forward. As you know, a unified family court system streamlines the family court process. It reduces the number of court filings, appearances and legal fees, while hopefully diverting cases away from court litigation, representing significant savings to taxpayers and reducing the trauma of disruptive proceedings upon children.
We are concerned about decisions that would shuffle the bottlenecks, delays and inefficiencies from one level of court to another and within the justice system generally, without fully understanding how each of these seemingly small changes affects the big picture.
We want to help. Between the Canadian Bar Association and its various sections, the Criminal Defence Lawyers Association, the Alberta Civil Trial Lawyers Association, the Criminal Trial Lawyers' Association, and the Advocates' Society, we represent almost all lawyers in Alberta. Many of our members voted for your government. They supported, and still support, the work that you’re doing. As those with the most expertise and experience, we want to be involved in helping guide the changes you’re proposing. We want to be consulted. We want to be heard. Because we know we can help.
Our courts are doing their part to streamline operations, find efficiencies and cut costs. For example, the Court of Queen’s Bench of Alberta through its Early Intervention Case Conference for family law matters, its suspension of the ADR rules which requires parties to seek mandatory mediation prior to setting their matters down for trial, and the hiring of retired judges to perform pre-trials in criminal matters has greatly reduced the court’s workload by encouraging early resolution without having to go to trial. For its part, the Provincial Court has implemented significant criminal case and caseflow management reforms. These including the bail project that allows prosecutors based in the Calgary and Edmonton courthouses to deal with bail applications across the province through video conferencing, the civil reform project that has made it easier, cheaper and more timely to resolve civil claims through the use of simplified forms, binding arbitration and the Simplified Trial process, and the new criminal Rules of Court that will undoubtedly allow for better use of court time and resources in criminal matters. And the Court of Appeal is working hard on a multi-phase digitization project that would allow for a far more accessible filing system at the appeal level.
We can, if we join in common purpose, achieve a shared outcome. But this will require us to come together, develop shared intentions, and, no matter how hard the road gets, work together. Because working together through collaboration, real consultation, and thoughtful engagement allows us to better understand the pressures your Ministry is facing, allows lawyers to better advise and serve their clients, and allows you, and us, to craft outcomes that properly address the problems we’re trying to solve.
Dear Minister, name the place and time, and we’ll be there. We’ll come to you with our best intentions and we’ll share the heavy lifting. We promise that we’ll listen, do the work and come back to you with ideas. And if those ideas don’t work, we’ll come back with more, until we figure it out. Until we get this done. Together.
Ola Malik is the President of the Canadian Bar Association - Alberta Branch. Ian Savage is the President of the Criminal Defence Lawyers Association. Jackie Halpern, Q.C. is the Vice President of the Alberta Civil Trial Lawyers Association. Shelagh McGregor is the President of the Alberta Civil Trial Lawyers Association. Jordan Stuffco is the President of the Criminal Trial Lawyers' Association.