Opinion

Funding Justice: Why Legal Aid Matters

JTT gavel

William van Engen (3L)

 

“Would it be possible to have a copy of the big book with all the rules in it?”

Paul Lionel White was 18 years of age when he was forced to represent himself at his own murder trial. With only a Grade 9 education, Mr. White was expected to call evidence, interpret case law without legal education (or even a high school education), follow trial procedure, and argue in his own defence.

The trial transcript shows a tragic lack of understanding of criminal procedure and law. Mr. White didn’t own a copy of the Criminal Code or even know what it was called, referring to it as the “big book with all the rules in it.” He was not aware of the risks of putting his own character in issue, and appeared to have done so when one of his witnesses testified. The Court admonished him for objecting too frequently.

Mr. White’s defence team consisted of him and his parents. Because he was in custody during trial, he was unable to view video and audio disclosure and was only given equipment to review this evidence after the defence case began. (Incidentally, he was also unaware that there was a “Crown case” and a “defence case” and believed that the Crown could continue to call witnesses.) His mom and dad helped bring him case law from outside of custody: “My wonderful mother and father have been – have gotten me the case law I do have. Any my mother spent hours and hours and hours on the net trying to get stuff from a case.”

Mr. White was convicted of second-degree murder in August 2008, and sentenced to life imprisonment with no parole eligibility for 13 years. His conviction was overturned in 2010 by the Alberta Court of Appeal, which held that the trial judge should have granted him an adjournment to obtain counsel.

 

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Those who fail to qualify for Legal Aid and cannot pay for a lawyer are faced with the same injustice. Mr. White’s case, to my knowledge, did not result from a lack of Legal Aid coverage, but his case demonstrates the tragic consequences of self-representing in the criminal context.

As it currently stands, those charged with serious offences in Alberta may only qualify for Legal Aid if their annual income is less than $16,176. (Using its discretion on a case-by-case basis, Legal Aid can increase that number to $18,602.) This means that individuals who fall below the Statistics Canada “Low-Income Cut Off” of $19,597 are expected to pay their own way.

Absent a Charter application for legal coverage, or a defence lawyer taking on the case free of charge, these individuals are faced with the daunting task of representing themselves. They will have to make sense of the “big book with all the rules in it,” a text that law students only scratch the surface of in a year. 

In the end, Mr. White pled to being responsible for the death of Mr. Shoemaker. He was sentenced to 18 years for manslaughter. Yet our perspective should not change based on Mr. White’s guilt or innocence. We know from our country’s tragic experience that innocent people are caught up in the justice system along with the guilty. Mr. White could just as easily have been an innocent man fighting to exonerate himself, but deprived by the system of the tools to do so.

But more than that, his guilt or innocence should be irrelevant. A civilized society should treat even the most abhorrent individuals with basic dignity, equality, and due process. Unless we as a society want to deprive accused persons with the fairness every human deserves, and unless we want to see more David Milgaards and Ivan Henrys, then we must properly fund Legal Aid.