Pickton case highlights a legal dilemma

Ian Mulgrew
Vancouver Sun

Wednesday, October 16, 2002

The funding crisis in B.C.'s legal system reached a critical point Tuesday as defence lawyers quit working on one of the most horrific trials in B.C. history.

Robert William Pickton, the 52-year-old Port Coquitlam pig farmer accused of killing 15 women from a list of more than 60 who have disappeared from the Downtown Eastside, now is preparing to defend himself at a preliminary hearing set to begin in three weeks.

The situation is a result of the government's attempt to get legal-aid spending under control and raises a difficult question about Canada's constitutionally guaranteed right to a lawyer.

"We have withdrawn from the case," lawyer Peter Ritchie told reporters, adding he also cautioned Pickton against representing himself.

"Anyone can act for himself but it's a very bad idea."

Ritchie added his firm still represents Pickton, who was denied legal aid, in his attempt to win funding via an appeal to the B.C. Supreme Court. A judge can order free legal help for a person who faces jail if convicted and that hearing could continue in the next day or so.

If he is successful, Ritchie said he could again represent Pickton on the murder charges, but if that happens, he expects the Nov. 4 preliminary hearing to be postponed.

Ritchie said he is unable to provide an estimate of how much money is needed for the case given its complexity and the ongoing investigation into Pickton.

He said the defence team must sort through 200,000 DNA samples, prepare cross-examination of 37 expert witnesses and hire private detectives to delve into the backgrounds of witnesses to prepare for his trial.

The cost of such an endeavour boggles my mind.

Consider that the public is on the hook for nearly $1 million in putative legal fees run up by lawyers for former premier Glen Clark, who faced far less serious and far less complicated charges. This case could cost taxpayers millions.

But this isn't about Ritchie's fees, or any individual lawyer's fees. It's about public policy and the crisis gripping Canada's $500-million legal-aid system.

The problem is this: The Constitution's guarantee of legal representation has opened a Pandora's Box of entitlement.

Issues around funding for legal aid began in 1990, when Ottawa capped its 50-per-cent share of the costs at 1989 levels -- about $82 million a year. In 1995, it then changed the formula, rolling the money into the provincial health and social transfer.

Provinces since then have had wide discretion on how much, or whether, to spend on legal aid and that has created a patch-work quilt of service nationally.

Across the country, governments now are looking to trim that ballooning budget item, but no one has a solution and many fear a socialized legal system is just a step away.

In Ontario, lawyers this year protested fees that had been frozen for 15 years and the government now is considering a public defenders' system as a means of controlling costs.

In Quebec, Justice Jean-Guy Boilard tripled the allowable fees of the legal-aid lawyers involved in the demanding Hells Angels megatrial, to $1,500 a day.

Here, Attorney-General Geoff Plant has slashed 40 per cent of the province's legal-aid budget over three years from $88 million to about $54 million.

B.C. also has capped legal aid fees at $50,000 a case, so lawyers are appealing for more money to the courts on big, complicated cases such as Pickton.

Lawyers in the marathon Air India terrorism case are already on the public meter. Lawyers for the two former Eron Mortgage Corp. executives accused of misappropriating millions of dollars in investors' money want to be.

Plant doesn't like what's happening but he doesn't have an answer, either. The government, he said, is trying to craft a policy for these extraordinary cases but it's difficult given the thorny constitutional issues.

"I think it's past the point of acceptability that we should be dealing with these things continually on a one-at-a-time basis," Plant said Tuesday.

The disparity across the country and the continuing cutbacks caused the Canadian Bar Association this summer to launch an aggressive campaign to wring more money from taxpayers.

The 37,000-member association -- the legal profession's political lobby group -- plans a series of lawsuits across the country to argue governments are violating the Charter of Rights and Freedoms by failing to properly fund legal aid.

But the only ruling for mandatory legal aid by the courts is a 1999 Supreme Court of Canada decision that a New Brunswick mother had the right to public funding to defend herself against the province's seizing her children.

And there are various interpretations of what exactly the constitutional guarantee means -- does it entitle you to a talented, top-dollar lawyer or a moderately priced barrister?

Plant thinks that's the big problem -- that the Constitution in some measure respects the right of the accused person to his choice of counsel.

"Frankly, it's a challenge that bedevils the attempt to make sensible public policy ... and that's the principle that the Ontario attorney-general is going to run up against by creating a system of public defenders," he added.

"Now as it happens, I think our legal services society act has a framework that's open enough to permit the creation of a public defender model, but the question we are looking at in that context is would it fly given the respect that is accorded to the right of choice of counsel?"

It's a dilemma that is crippling the justice system and someone needs to take the bull by the horns.

Former B.C. attorney-general Alex Macdonald has sounded the alarm over the issue.

So too have Antonio Lamer and Beverley McLachlin, the previous and current chief justices of the Supreme Court of Canada. McLachlin believes legal costs are spiralling so high that justice might soon be out of reach for all but the wealthy.

Federal Justice Minister Martin Cauchon has promised full-scale reform of the system next year. I do not think we can wait that long.

If the prospect of a mistrial in this heinous case doesn't light a fire under the feet of the politicians and the judges, I don't know what will.


 Copyright  2002 Vancouver Sun

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