Report on criminal legal aid

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The present

In British Columbia, there is no government operated or government sponsored system of criminal legal aid, neither is there any system recognized by the common law or by statute. There is, however, a legal aid scheme operated by the legal profession. For present purposes, it will be sufficient to describe the scheme operating in the City of Vancouver, where the largest number of criminal cases is tried. For the remainder of the province, there is a system that is similar in principle to the one operated in Vancouver, although different in detail.

The Vancouver scheme is established under the auspices of the Vancouver Bar Association. Any person charged with an indictable offence is eligible for legal aid if:

  • he or she does not have the means to employ counsel
  • she or he has no previous convictions, or five years have elapsed since the termination of her or his last imprisonment and
  • he or she wishes to plead not guilty.

The last requirement is not formally stated, but in practice, counsel are not generally available to those pleading guilty.

Processing of applications has previously been done by members of the Salvation Army in attendance at Magistrates’ courts. However, arrangements have recently been made for their work in the screening of cases to be supplemented by the visits of a lawyer in private practice, who is $75 a month by the Law Society. When an application is accepted, counsel is selected from the list of those willing to take criminal legal aid defences, and she or he is put in touch with the accused person. Counsel will then conduct the defence without fee, except in capital cases a small honorarium is paid by the Attorney General’s office.

We should point out that a counsel on the criminal legal aid list spends many hours, often days, defending these cases to ensure that persons accused of crime receive a fair and adequate trial. However, recognition and appreciation of the work should not inhibit criticism of the system.

Criticisms of the present system

  1. The adversary system of administering justice requires for its efficacy that each side should have the opportunity to present its case forcefully and thoroughly, and that means by counsel. We believe it to be wrong in principle that a person accused of serious crime should have to depend for the proper presentation of his or her defence on the charity of the legal profession. It is often alleged that counsel does not put the same effort into legal aid cases as paid work. But to determine the truth of this allegation seems irrelevant. Under any system, the accused must depend to some extent on the integrity, ability and effort of his or her lawyer, but in our view, should not have to depend also on counsel’s benevolence.
  2. Only a small number of those accused actually receive legal aid. For example, in the year 1960, there were 181 “Miscellaneous and Criminal” cases granted legal aid in Vancouver (figure from The Advocate, Sept-Oct, 1962). By comparison, there were 5,441 persons charged with indictable offenses in the province in that year (figure from the Canadian Year Book for 1962). Even allowing for the legal aid cases outside Vancouver, it is clear that the number a very small proportion of the total accused.
  3. The range of persons covered by the present scheme is unduly narrow, particularly because those with previous convictions are excluded. Within the limitations of a charity scheme, it seems reasonable that counsel do not wish to become an unpaid assistance to those engaged in a career of crime. On the other hand, whenever a crime is committed, anyone recently discharged from prison in the area with two previous convictions for that type of offence is an automatic suspect. Further, if he or she is arrested and brought for trial, then his or her record may become known to the court, causing a suspicion and prejudice that may greatly exceed the evidence. For these reasons people with recent convictions constitute that class of society most likely to be wrongly accused, and perhaps wrongly convicted. From the January 2 to March 30, 1962, 58 criminal legal aid applications were accepted. Then, when the rule against persons with previous convictions was introduced, the number accepted from March 30 to October 1, 1962 was 34 (figures from The Advocate Sept-Oct, 1962).
  4. The system makes no provision for those, the majority of cases, when the accused wishes to plead guilty and confess the offence. But in our view, the treatment of the guilty is no less important than the acquittal of the innocent. Further, the present system seems to put a premium on lying, and may even do more to obstruct the administration of justice than to assist it. Thus the hard nut with a concocted alibi will have counsel. But a repentant individual with basically honest traits who wants to “make a clean breast of it and go straight” will not usually receive the assistance of counsel to explain his or her position to the court, and to argue for that disposition of the case most favourable to him or herself or most socially useful.
  5. The processing of applications (i.e. the means test and the selection of cases for legal aid) has been very much hit and miss. This, too, has been charitable. It is too early yet to assess the recent improvements, but even now there is nothing that guarantees that an accused person will be informed that legal aid is available.
  6. Funds for disbursements are not readily available. Quite often it is necessary for the conduct of a case, that counsel should have funds for the transcripts of previous proceedings, for the expenses of witnesses, etc. Funds can be obtained by making application and having it approved, but all this involves delay in bringing on for trial the case of a man or woman who is usually in custody.
  7. There is the view that legal aid is done at the expense of paying clients. It is doubtful whether this argument is economically sound. But even so, it seems right in principle that a lawyer’s income should be derived in an equitable way from all clients, not merely from some.

It may be helpful to mention some examples drawn from the experiences of the members of the committee of what actually happens when an accused person appears without counsel:

  • He or she may feel a sense of guilt, probably because he or she is guilty of some lesser offence, and may plead guilty, but thinking about the wording and nature of the charge. Thus, in one case a woman who had left her children at home for a few hours while at a bar, pleaded guilty to failing to provide the necessaries of life for the children so that their health was likely to be permanently endangered, contrary to the Criminal Code.
  • Prosecution evidence often creeps in which is not legally admissible. Also any arguments that might be available on other points of law will probably not be made.
  • The accused is often unable to express him or herself clearly in the courtroom atmosphere. Frequently mitigating circumstances are not explained, and one cannot feel confident that a complete defence may not sometimes pass unmentioned. In any event, the number of cases in which the accused has “nothing to say” surely exceeds the number in which nothing can be said.

In these circumstances it is naive to suppose that rich and poor receive anything like equal treatment before our criminal courts.

The need for reform

It seems probable that as events proceed, some improvements will be made by the Bar in the administration of the present system. But in our view, no improvements on this structure can overcome the fundamental problem that it is wrong in principle that the defence of persons accused of crime should depend on the charity of the legal profession. For so long as we have the adversary system, it is essential to the administration of justice that both sides be fully and thoroughly presented, and the administration of justice has long been accepted as a function and responsibility of the state. In our view, the assistance of counsel should be a right made effective to the accused by the state through the use of public funds. It seems impossible to reconcile our claims to a free society and the rule of law with a constant striving for justice on the cheap. Further, if the extended use of counsel for defendants should result in fewer or shorter jail sentences and the more efficient conduct of trials, then one cannot be certain that the employment of public funds for this purpose would in the long run result in any greater total cost to the public than the present system. But even if the costs to the taxpayer should be increased by the provision of defence counsel, it is still our view that the proper administration of justice is worth the price.

It is sad to reflect that on this subject Canada lags behind other civilized countries. England, with a standard of living lower than our own, has for some years felt able to afford a system that we describe later. In the Soviet Union, where the administration of criminal justice seems, by our ideas, unsatisfactory in other respects, the indigent defendant at least has the right to counsel (see for example “The Soviet Bar” by Zaitsev and Poltorak, published in Moscow in 1959, at pp. 111 et seq.). In the United States, the proviso of legal aid depended on the state or local authorities, But on the March 18, 1963, the Supreme Court of the United States delivered its judgment in Gideon v. Wainwright (1963) 63 S. Ct. 732 (New York Times 13th March 1963 p. 4). In this case, Gideon was arraigned before a Florida state court, charged with breaking and entering a poolroom, which is a felony by the law of Florida. At trial, he was without funds and asked the court for counsel, but his request was denied. Gideon defended himself as best he could. He was convicted and sentenced to five years imprisonment. From his jail cell, he sent a hand-written petition to the Supreme Court of the United States, contending that he had a right to counsel under the federal constitution. Twenty-four states argued amici curiae. Twenty-two supported Gideon and only two supported Florida. The Court overruled its own previous decision to the contrary and a century of practice and unanimously held that the failure of the State to provide Gideon with counsel was a denial of procedural due process contrary to the Fourteenth Amendment, and there was therefore a mistrial. The result of this case seems to be that any indigent person accused of crime before any state or federal court and who requests the assistance of counsel must be provided a lawyer by the state or federal authorities. Mr. Justice Black delivering the opinion of the Court, said

… reason and reflection require us to recognize that in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth…. That government hires lawyers to prosecute and defendants who have money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.

Perhaps the most significant feature of the case is the widespread support for the position taken by the Court among the authorities responsible for the administration of justice and for meeting the expense of legal aid. Twenty-two states argued for the right of the accused to have counsel provided, and only two against.

The only argument of any substance against the provision of criminal legal aid seems to be that it may tend to penalize thrift. Thus, the careful individual who has scrupulously saved a portion of his or her earnings to provide for his or her retirement or unforeseen contingencies may be left to find counsel at their own expense. But another person, who has enjoyed the same income but squandered much of it on the frivolities of life, may be given counsel at public expense. This objection could be mitigated to some extent by enabling the court to require that the accused should reimburse the costs of his or her defence out of future income. This might be suitable, for example, where an accused is given a suspended sentence, but in any event we do not feel that the argument is a strong one when weighed against the interests of justice.

Canadian federalism

Accepting that the provision of counsel for indigent persons accused of crime is a responsibility of government, the next question is which government? The problem here is whether the legislation necessary to establish a criminal legal aid scheme falls within s. 91 (27) of the B.N.A. Act, at “Procedure in Criminal Matters”, or under s. 92 (14) as “The Administration of Justice in the province”. As there is no clear authority, one cannot express a legal opinion with certainty. However, at common law, the presence of counsel before the court, and the determination of his or her functions, have always been regarded as procedure. Similarly the provisions relating to counsel in the Canadian Criminal Code and the Canadian Bill of Rights seem to be justified constitutionally under s. 91 (27) of the B.N.A. Act as Procedure in Criminal Matters. Also in the Gideon case cited above, the right to be provided with counsel was treated as a matter of procedural due process. Finally, the arguments that justify making criminal law and procedure national, rather than provincial, seem equally applicable here. There are two slightly analogous areas that may offer some guidance. One is the mode of trial, and in particular the right to trial by jury. It seems beyond doubt that this is a matter within the scope of federal legislation. The second is the prosecution of offences. Generally speaking, prosecutions are conducted by provincial or municipal agencies, and are the responsibility of the provincial Attorney General. However, the conceptual basis for this seems to be the delegation by federal legislation to provincial authorities of administrative functions, rather than original provincial action under s. 92(14). Thus, the powers and functions of the provincial Attorney General in criminal prosecutions are defined by the federal Criminal Code, not by provincial statute. It seems, therefore, that the provision of counsel in criminal cases fits more rationally under s. 91(27) than it does under s. 92(14). On the other hand, it may be that there is some overlap, and that if the Province should provide counsel in criminal cases, then it could be held intra vires as the administration of justice in the province. But even assuming that the power to establish legal aid exists in both governments, still there can be no doubt that the federal power is the more extensive. For dominion legislation could provide, but provincial legislation cannot, that where an accused person without means asks for counsel, but is not provided with legal representation, then the results of any trial are invalid. For these reasons, it would be preferable for criminal cases should be provided for by federal statute. Failing this, a provincial scheme would be an improvement. We turn now to consider particular schemes.

The public defender system

This scheme has for many years been in operation in several of the American states. It is also one of the alternatives proposed for the United States courts in the bill presented by the President to the Congress on the March 8, 1963. Put simply, a public defender is a lawyer employed by the government on a regular salary to defend persons accused of crime who do not have the means to engage a lawyer. It is usual in the metropolitan areas for several public defenders to operate from one office, with a small staff of secretaries and sometimes investigators. The system generally at it stood in the United States in 1956 is described in a pamphlet on “public defenders” published by the institute of Judicial Administration in New York. The system, as it works in California, is described in a pamphlet by Edward Mancuso, published in 1959 by the National Legal Aid and Defender Association.

Arguments for the public defender System

  • It works. The first public defender Office was opened in Los Angeles County in 1913. From then on, the system slowly but surely spread, as one area after another became convinced of the inadequacy of a system that relied on volunteer counsel. By 1963, 110 public defender Officer were established in 16 states and the District of Columbia. With the latest decision of the Supreme Court, the new federal legislation, and a grant this year of $2.3 million by the Ford Foundation, there seems to be every prospect that the development will be accelerated.
  • The system provides a comprehensive plan, so any person accused of a crime can be represented by counsel with a specialized knowledge of criminal law and procedure, and therefore have adequate opportunity of presenting to the court any defence he or she may have, and all relevant material in mitigation of sentence.
  • The system offers a better hope of defence counsel developing an expertise in penology. This is usually of little interest to practising lawyers, although in the majority of criminal cases sentence is the only important issue.
  • Delay is avoided by the more efficient handling of applications that flow from the continual contact between the public defender and the Prosecutor’s Office, and sometimes also the police and the jails.
  • Investigating officers attached to the public defender’s Office can be a great aid in the proper presentation of a defense.
  • The system is economical because it enables the same defence counsel to handle several cases in the same court on the same day. It also facilitates the arrangement of court calendars.

Arguments against the public defender system

  1. The indigent defendant has no choice of counsel. But it seems doubtful whether many would want a choice, and of those that do, few would have sufficient information to make a rational selection from amongst the counsel who would be available under any other system.

    The system may tend to create a sense of routine, and consequent lack of personal interest in each case. By contrast, the freshness which private counsel can bring to a criminal case might largely compensate for any lack of experience.

    The contribution an independent legal profession makes to the fabric of a democratic society requires that it should be maintained in its present form. But a public defender system would involve no loss of income to lawyers in private practice, and to fear that it threatens the structure of the profession seems unduly sensitive.

  2. The familiarity of defence counsel with the prosecutor and the court may tend to aggravate and extend the mystery to the accused and others of the shorthand phrases of police court jargon which, perhaps inevitably, seem to characterize exchanges between a full-time magistrate and a full-time prosecutor.
  3. The system is more appropriate to large urban than to rural area. In small towns, a lawyer in private practice could be appointed a part-time public defender, but obviously the more sparse the population the more cogent the argument becomes for a system that enables any lawyer to be available for criminal defences.
  4. A system of salaried counsel may contain no safeguards against an inadequate budget. It appears that in a few of the states the budget provided by the county authorities is not adequate to obtain counsel of sufficient calibre, or in sufficient numbers to cope with the case load. On the other hand, a system based on individual fees to lawyers in private practice offers a rough but automatic safeguard (i.e. if sufficient funds were nor available then lawyers could decline to act).
  5. There may be some danger of a public defender being influenced by the executive, particularly in any case of political crime, or where public feeling was running high against the accused. However the danger could be guarded against by providing a) a proper system of selection and appointment of public defenders, independent of the executive, and b) that a public defender could not be removed from office without an order of the court for cause shown.

The English system

The essence of the English system is that where a person accused of crime has not the money to employ counsel, then legal aid may be provided by supplying a lawyer in private practice, who will be paid out of public funds. The provision of criminal legal aid in England is discretionary, and the court will decide in each case whether legal aid should be granted. However the practice seems to be evolving so that legal aid will usually be provided to anyone indicted on an offence. Thus, in referring to the granting of legal aid upon committing a defendant for trial, the Lord Chief Justice told a meeting of magistrates that “even in the case of pleas of guilty there will seldom be a case where if is not desirable in the interests of justice” (1961), 125 J.P. 342. In trials before the magistrates the granting of legal aid is not usual. Thus, since the magistrates’ powers are limited to imprisonment for six months, it can be said as a rough guide that legal aid will usually be available where the accused is exposed to the risk of over six months imprisonment, but usually not for less. The fees paid are generally regarded by the Bar as sufficient to make the work worthwhile from the lawyer’s point of view. The particular lawyer in each case is usually selected by a court official on a rota basis from the list of those willing to act. For a summary of the English law on this subject see Archbold “Criminal Pleadings, Evidence and Practice” 35th ed. pp. 137-142, or “Stone’s Justices’ Manual”. 90th ed., pp. 212-224.

Arguments for the English system

  1. It overcomes the difficulties inherent in any volunteer plan, and provides an indigent accused with a defence counsel who is in much the same position as he or she would be for a paying client, and thereby it reduces the inequality before the court of rich and poor.

Arguments against the English system

  1. There is no satisfactory sorting procedure. If it is necessary for the court to consider the merits of the defence to decide whether legal aid should be given, and magistrates often feel that is, then there is the danger of prejudging the case. However, this objection could be met by providing an independent processing system, or by defining a category of crimes in which legal aid would be available as of right.
  2. It involves a wasteful duplication of costs. Thus several defence lawyers may be engaged to travel to the same court to take successive cases on the same day, and, of course, this duplication is aggravated by any adjournments. It may be that to some extent, the efficacy of the English system depends on an excess capacity at the Bar, which does not exist in Canada.
  3. The system is potentially susceptible to abuse by political patronage. However, this can be avoided by providing, as is done in England, that the selection of counsel should not be in the hands of the executive.

Before dealing with the third scheme, it will be helpful to consider the position of defence costs in cases where the accused is providing his or her own counsel.

Defence costs in criminal cases

Subject to some minor exceptions limited to special circumstances, the general position in Canada is that a defendant in criminal proceedings is always left to bear the costs of the defence, no matter how innocent he or she may be. But it seems quite wrong in principle that a person who has been wrongly accused of a crime should have to pay the costs of establishing his or her innocence, merely because he can afford to do so. In England, the general position is that where an accused person has been acquitted, then the court has a direction to order that the costs of the defence be paid either out of local funds or by the prosecutor (i.e. generally the person laying the information) (see Archbold “Criminal Pleading, Evidence and Practice. 35th ed. pp. 308-332; or “Stone’s Justices’ Manual”. 90th ed., pp. 224-233). In our view, the Canadian position is in dire need of revision, although we are not totally in agreement about how far the revision should go. One view is that on an acquittal, the accused should be entitled to the costs of the defence, and that the court should have a discretion only on the question of whether the costs should be paid out of public funds or (in very exceptional circumstances) by the person laying the information. Those taking this view submit that if is the only position compatible with an un-rebutted presumption of innocence. The other view is that on an acquittal, the court should have discretion to award the costs of the defence, and if they are awarded, then a further discretion as to whether they should be paid out of public funds or by the informant personally. The discretion to award costs should be exercised unless there is some ground for refusing them, such as:

  • that the accused, by his or her misconduct, brought the prosecution upon themselves
  • that by misconduct the accused or his or her counsel substantially increased the costs of trial or
  • that the accused did not give evidence.

This last controversial suggestion is intended as a rough rule of thumb limiting costs to those cases where the acquittal is really on the merit of the case. The objections to this suggestion are that it offends the privilege against self-incrimination, and that it may tempt defendants to give evidence in cases where it would be unwise to do so. The reply to these points are, first, that the privilege against self-incrimination need not be extended this far. The rule that provides that an accused person is not compelled to give evidence need not be extended to require that he or she cannot obtain an advantage by doing so. Secondly, if some defendant should be tempted to give evidence revealing their guilt, then it can hardly be counted a disadvantage of a proposal that it might result in more guilty people being convicted rather than acquitted. Enough has probably been said to indicate the difficulties of formulating criteria calculated to do justice in all cases. However, what can be said with confidence is that we can come a great deal closer to it than we do now.

Apart from the criteria for awarding costs, there are also the questions of what items should be included, and the time for payment. Costs should cover counsel fees, travelling expenses of the accused and his or her witness, disbursements for transcripts of any prior proceedings, etc., and that they should be available immediately at the close of the case. In support of this view, it may be sufficient to recite one recent case taken from the records of the John Howard Society. A man was arrested in Ontario, where he was living, for an offence alleged to have been committed in British Columbia, and he was brought to New Westminster for trial. He applied for legal counsel but was refused. He defended himself and was acquitted. Then he was discharged onto the streets of New Westminster without money or transportation to Ontario. It seems impossible to believe that we allow such things to happen, and yet we do. Returning that man to Ontario was clearly a responsibility of government, not of private charity.

The comprehensive plan

The object of this plan is to combine in one simple scheme provision for criminal legal aid and for costs. The principles which it seeks to establish are:

  • That regardless of his or her means, a person accused of serious crime is entitled to be defended by paid counsel, whose services are promptly available.
  • That regardless of his or her means, an innocent person wrongly accused should not have to pay the costs of establishing their innocence.
  • That the defence costs of a person duly convicted should generally and where possible, be paid by him or herself.
  • That public defenders should be established, but that the alternative of defence by private counsel should be left open, even for indigent defendants, particularly for its suitability in rural areas.

The main features of the plan are:

  1. Any person charged with any offence punishable by at least three months imprisonment should be eligible for the provision of counsel under the plan. No means test or other qualification.
  2. Public defenders should be appointed and paid salaries from public funds.
  3. The accused may choose to be represented by a public defender, or by any lawyer of his or her own choice, who is willing to accept cases under the plan.
  4. A tariff of defence counsel fees should be drawn up. The tariff figures should be sufficient to induce counsel to undertake criminal cases under the plan and spend sufficient time on them without being paid substantially less than for other work.
  5. At the close of each case, the court should determine, either in its discretion or according to whatever criteria may be established, whether the defence costs should be paid by the accused or out of public fund, or in very exceptional cases by the person who laid the charges.

Where the court certifies defence costs out of public funds:

  • if the defence was conducted by the public defender, no further steps would be necessary, except for payment of witnesses’ expenses
  • if the defence was conducted by other counsel, the costs should be paid out of public funds with fees according to the tariff
  • where the court has certified the defence costs as payable by the accused, then his or her counsel, whether a public defender or not, should first seek to recover the tariff fees and other costs from the accused by billing him or her in the ordinary way. If costs cannot be readily collected from him or her (e.g. because he or she is imprisoned and has no known assets) and counsel has filed an affidavit to that effect, then the court should certify to the internal Revenue the amount due from the accused. The Internal Revenue Office should then recover this amount, from the accused as and when possible, by a surcharge on future income tax, or any other tax. In the meantime, the costs should be paid out of public funds.

Similarly if, in very exceptional circumstances, costs were awarded against the informant, then the defence costs should be claimed from him or her, and in default of payment, should be paid out of public funds, with a right of reimbursement exercised by the Internal Revenue office against the informant.

Counsel in private practice should have the choice of taking cases on the plan or off the plan. If a case is taken on the plan, then he or she should file a notice with the court to that effect before the hearing. She or he would be bound by the tariff fees and other terms of the plan, but would also be entitled to its advantages, in particular, the guarantee of payment in any event. If she or he takes a criminal case off the plan, then she or he would still be free to negotiate any fee with the accused, but its collection would remain her or his own responsibility. Even where the case is taken off the plan, the court should still be empowered to award costs on the tariff scale out of public funds or, in very exceptional cases, against the informant, but counsel would be left to collect any balance from the client. And, where defence costs are payable by the accused, counsel would be left to collect the whole amount.

The system should be available for appeals, except of course that the launching of an appeal must depend on the opinion of counsel that there are grounds for appealing.

We have also considered certain ancillary questions. One is whether legal aid should be extended to juvenile courts. This raises a complex of problems, and on the whole, we have felt it better than this should be left for separate consideration.

Another question is whether any change is required in the ethical rules relating to the conduct of counsel. In particular, should a legal aid counsel be bound to accept his or her client’s instructions as to pleadings? In the first instance, at any rate, it is our view that the present rules should be maintained. If and when any need for change becomes apparent they can be reconsidered. It should, however, be made clear to the accused that counsel will be available whether he or she pleads guilty or not. He or she should not feel under any inducement to plead in a particular way in order to have someone to speak for him or her.

Summary of recommendations

  1. The principle should be accepted and applied that in all cases of serious crime and where the accused is unable to provide his or her own counsel, the provision of counsel for the defence is a responsibility of government.
  2. The provision of counsel should not be limited by any qualifications, such as a plea of not guilty, or no previous convictions.
  3. There should be general provisions for defence costs to be paid out of public funds on an acquittal, at any rate in certain cases.
  4. Of the schemes we have discussed, the comprehensive plan is the most desirable. Failing this, either a public defender system, or a scheme of payment to private counsel modelled on the English system, would be a substantial improvement on the present position.
  5. Provision should be made to ensure that those eligible for legal aid are informed of their rights promptly after arrest.
  6. The scheme should include a statutory provision that if a defence counsel is not supplied when one ought to be, then any trial that ensues will he a nullity.
  7. If the scheme is established, as we recommend it should be, by federal legislation, then there should be complementary provincial legislation extending it to the more serious categories of provincial crimes.