By Ian Mulgrew
One of the country’s top criminal lawyers, Marilyn Sandford, sat in her downtown Vancouver office aerie, lamenting the dire state of the courts and threadbare legal aid.
She pointed to her associate’s most recent file.
“Her recorded time on the case was 46 hours, and her pay will be $190 — she was working for $4 an hour!” Sandford said incredulously. “She’s my employee, I’m her principal, we have a legal assistant and we have office space. It’s not even close to minimum wage.”
For the last two decades, Sandford has handled high-profile cases — defending serial killer Robert Pickton, the wrongfully convicted Ivan Henry, the alleged jihadists in the Canada Day terror plot, the former New Zealand politician accused of murdering his wife in the B.C. Interior …
A veteran Q.C., who inhabits a professional strata where private clients pay more like $450 an hour, Sandford explained her associate’s legal aid case was assessed as moderately serious — an indictable offence involving a client with mental health difficulties.
“She got a provincial court fee — that’s like a file fee, for opening a file on an indictable offence. $100. The client was in custody out at the North Fraser Pre-Trial Custody Centre. They’ll pay for one visit. $90. You can’t see two clients (at the pre-trial centre) that same day and get $180. If you see three, you still get $90.”
The pre-trial work included reading the disclosure material, dealing with the Crown, researching the legal issues, and communicating with the client.
“Of course, we do not say, ‘We don’t have time to talk to you, no one is paying me to talk to you.’ So all that, frequent phone calls several times a week, lengthy phone calls, negotiating with the Crown, interviewing witnesses, and dealing with a high-needs client, and court appearances …
“We go to court to set a date, we don’t get to charge a fee for that. If the Crown is not ready to proceed and we have to go away, we don’t get a fee for that. We don’t get paid to go to court except for bail hearings, the trial, sentencing. Large numbers of appearances are required. We don’t get paid for travel unless it is more than 160 km return.”
On the day of the trial in her associate’s case, Sandford said the client decided he wanted to represent himself and the proceedings were adjourned.
If the trial had gone ahead, Sandford said her associate would have received another $800.
“Then she would be working 46 hours plus a day in court, 55 hours let’s say — she’d be making $960, still under $20 an hour. If he was convicted and came back another day for sentencing, then you get $125 for a sentencing hearing that is expected to last half a day, and that includes gathering all your material, letters from family and friends, preparing case books, case authorities, preparing an argument … that’s $125 for an indictable offence. That’s good compared to more minor offences (when) you get $80. You get paid zero if you have to sit and wait and don’t get on.”
Sandford said only experienced lawyers who can afford to cherry-pick legal aid cases and do only serious cases such as murder or drug importation “are sitting around getting $80 an hour.
“The $4 an hour is more typical. The public doesn’t care that young lawyers aren’t getting paid, they aren’t getting the experience, and that the whole system suffers as a result. I think we are reaching a critical point. Something is going to have to give. More delay. More cases being thrown out because of delay. More public cost in the long term. It’s terrible.”
She said the government has not only beggared legal aid, but has also not properly funded Gladue reports, despite two Supreme Court of Canada decisions saying the specialized background pre-sentence documents detailing the unique circumstances of First Nations offenders are essential for crafting culturally appropriate sentences.
“It’s appalling to say to the Legal Services Society you have to cover that out of your budget,” Sandford said. “It’s not rocket science. They’ve never asked Legal Aid to fund pre-sentence reports. It’s been 20 years since the Gladue decision. How many years does it take for you to figure out you have to fund this and actually start doing it? We’ve done nothing.”
Sandford is one of several senior lawyers — Ian Donaldson, Donna Turko, Robert Mulligan and Richard Peck among the others — working with the Criminal Defence Advocacy Society created about three years ago to give the defence bar a focused voice on law reform and provide supplemental education for young barristers.
“We’re moving backwards as a criminal bar,” Sandford said. “It doesn’t speak well of a lot of the institutional players.”
If changes aren’t made, she sees more wrongful convictions, more cases being stayed, and more costs in the long run as untreated legal problems cascade into related health ailments, employment issues, family breakdown …
“Are young lawyers up in arms? I hope so. Will something happen in the near future and there will be more support? I hope so. In Ontario five years ago, they had job action and got an increase in fees.”
But after nearly a generation of underfunding, impotent lawyer work actions over the last several years, and numerous doomsday predictions, nothing in B.C. has changed.
“I think it is a demoralized bar,” Sandford said. “The economic reality of young lawyers is they are living paycheque to paycheque, they have huge debts. … Look at how few women are practicing criminal defence work, women of my vintage? Women — they leave in droves, they leave in droves.”
She shook her head.
“I don’t know what the answer is … it’s dispiriting. It’s an ugly picture and it’s a pretty depressing situation.”
This article first appeared in The Vancouver Sun on April 6, 2018