B.C. has an excellent legal aid system. Given a local high profile murder case and the announcement by the provincial government of a new framework agreement and an increase in funding last year, it’s helpful to understand just how legal aid works in this province.
Unlike many states in U.S., B.C. does not have legal aid offices full of lawyers anxious to jump on cases. The myth around those types of offices is they are for lawyers who can’t quite make it in the real world. Many wrongly believe legal aid is synonymous with lawyers from the bottom of the barrel. Fortunately, that’s not the case in B.C. Legal Aid here means you can have any lawyer you want, assuming its a lawyer wants to take the case.
B.C.’s legal aid system is based on rules and financial qualification set out by the Legal Services Society (lss.bc.ca). Generally, legal aid is for people who possibly face jail, a conditional sentence, could lose their job, or face an immigration proceeding and deportation. Legal aid is also available due to a physical condition, mental or physical disability, or if you are Aboriginal and the case affects your traditional livelihood. The other key qualifier in B.C. is income. This is all set out in the legislation, but the cutoof works out to be about $1,600 a month maximum for one person or, for example, $2,900 for a household of three people.
It’s a good system. Over 25,000 people a year qualify for some form of legal aid. Without a doubt, it’s a constant source of clients and income for lawyers in this province. Last year, over 1,000 private practice lawyers in B.C. did legal aid work.
These private practice lawyers are essentially contract lawyers — hired guns — who represent the clients. They are not Legal Services Society lawyers, who are also in the throes of funding issues. In Vancouver, and other locations, there are Legal Services Society offices. They are staffed by Legal Services Society lawyers and support staff. These are not the lawyers who represent clients in legal matters. The Legal Services Society staff lawyers ensure those who need legal aid have access to it and they support the lawyers who provide the actual legal services to clients.
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Here in Victoria, we have the Law Centre office. It is not full of lawyers waiting to represent a client. It is full of very enthusiastic law students from UVic who are keen to help, under the supervision of lawyers and faculty from the UVic Faculty of Law. They handle a number of cases through that office, but there are limitations. Really, who wants to be represented by a student who heads back to class as you head off to jail? The able students at the Law Centre will handle some criminal matters, divorce and family law matters, human rights, civil, employment insurance, welfare, landlord issues and some CPP issues.
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But how does it work? Let’s take, for example, the Andrew Barry case. He was charged and recently convicted in the murders of his two daughters on Christmas day in 2017. It’s not known whether Barry was on legal aid. That’s a matter between he and his lawyer. Given the testimony at trial about his financial situation, it’s easy to assume he was. So let’s go with that.
Barry would have applied for legal aid after he was arrested. Assuming his financial situation, he would have to meet the threshold test of income and case need, as set out above. Once approved, Barry would be able to hire any private practice criminal lawyer of his choosing. Barry chose wisely and had two excellent Victoria lawyers representing him.
Barry’s lawyers could act knowing all their fees were covered by legal aid.
Why do excellent, top-gun lawyers do legal aid? Because it pays. On time. While it may not pay their usual hourly rate, it pays and it pays in an area of law where most clients do not have the means. Most offenders don’t break the law because they have buckets of money. Those that do will pay the usual hourly rate lawyers charge.
So what would a lawyer under legal aid be paid? You might be surprised by the answer. Lawyer pay rates are determined by the legal aid tariff — found at https://lss.bc.ca/lawyers/tariffGuide. This does not apply to staff Legal Services Society lawyers, but contracted private practice lawyers. In other words, those that go to court.
What the tariff tells us, in the criminal law realm, is lawyers are paid for specific steps. For example, a lawyer will be paid for appearances or matters such as bail, in custody hearing, scheduling a trial, sentencing, etc. A bail application pays $600 where the client has been charged with murder.
The tariff pays $1,400 for the first two half days of a trial. Then it pays $700 per half day thereafter. The tariff also states that trials longer than 20 days require an “approval” from the Legal Services Society. Lawyers are permitted to bill more than the maximum with permission. This is based on years of call and is known as Tier 1 through 3. This moves from a daily rate to an hourly rate. These enhanced fees can reach $143.75 an hour for all prep and trial time. This is based on the enhanced fees and exceptional responsibility premium. Very likely, but again something between the lawyers and the Legal Services Society, the lawyers for Barry were being paid at the $143.75 an hour rate. For a ten-hour day of prep and trial — not unheard of — it would be just shy of $1,500 a day per lawyer.
So what is the cost of the Andrew Barry trial? Pretty simple to hit the main notes: The emotional and psychological costs to the girls’ mother, the extended families and friends is simply unimaginable and impossible to quantify.
The actual financial costs are much more easily understood. Over something like 100 days of trial, the Andrew Barry murder trial could have cost more than $250,000 in fees to his lawyers. On top of this are judge costs (B.C. Supreme Court judges make over $325,000 a year), clerk costs ($50,000 a year), sheriff costs ($55,000 a year), jury costs, Crown lawyers ($150,000 a year). You get the idea. All these salaries are approximate as it depends on the judge, the clerk, etc., and their personal experience.
The important thing to remember is legal aid is available to anyone who qualifies. It permits an accused in the criminal justice system to choose any lawyer who does legal aid to represent them. It is a very good system and a much needed system. But it is important to have all the information when determining the pros and cons of the system.
Brian Young, a former lawyer, is an instructor of criminal justice at Camosun College.