Monday, September 28, 2009

Paying for injustice

There is a very sad column in today’s Toronto Sun by prominent criminal lawyer, Edward Greenspan. He is singing a song I call “The Defence Lawyer Blues”. It is a popular refrain amongst criminal lawyers.

The lyrics dwell on how misunderstood they are by the public and the politicians, how necessary they are, how underappreciated they are, and how underpaid. Most of his lament is about the payment part.

He is complaining that legal aid programs that were started by the government years ago, to ensure that the poor had the taxpayer to pick up their legal tabs and could hire good, expensive lawyers, are now not paying enough money to make it worth a lawyer’s time to take on such clients. He is concerned that the refusal by criminal lawyers to defend accused criminals will lead to unfairness, which might, by some, be equated with injustice.

He mentioned that lawyers are boycotting the defence of gang members in the recent police sweeps.

Now you may remember some of those sweeps, the ones where the cops took down the gang members, dragging them out of their Lexus’s, cracking the crystals on their Rolex watches, and breaking their solid gold bling necklaces, emptying the trunks of hundreds of thousands of dollars in drugs and guns.

I had no idea until I read this column that those guys were qualified for legal aid.

I used to know a young man, 19 years of age, who was a runner for one these gangs. He was a small time dope distributor, dealing mainly in marijuana which he purchased from gang members and resold. He carried a gun and had been shot at a couple of times. He was small fry, but he cleared $12,000 a month, tax free. Eventually, the police caught him when a snitch fingered him in return for lesser charges. He got legal aid and 3 years of detention, which might well have been longer had he not had a legal aid lawyer in his corner. Personally, I think he should have been in longer.

I mention this, because I own a mortgaged home, a modest, two-bedroom bungalow, a beater of a car and I live on a pension that does not pay $12,000 a month either before or after taxes. I am considered to be a member of the “middle class” and therefore ineligible to obtain legal aid. If I want a lawyer, I have to pay for it, even if it might mean selling my home, or incurring crushing debt that I will never be able to repay. And when my young acquaintance got a lawyer, I had to pay for him as well, through my taxes.

Why is Mr. Greenspan not shedding crocodile tears on my behalf?

He says most of the legal aid money goes to family law.

That is very interesting because recently I have had some personal experience with the Family Court on behalf of one of my children who is fighting a custody battle.

My child is a single employed mother working 6 days a week, and making about $31,000 a year, before taxes. She cannot get legal aid because she is considered middle class. However, the father of the child, who is able-bodied and has been in the work force (I use that term loosely) for 14 years, and has held a job for only 6 months in all that time (in PC terms, he is motivationally-challenged) is getting legal aid for a lawyer, and so far has been fairly successful in screwing her over through the court.

I notice whenever I go to the courthouse and read the rosters in front of the court chambers that about 95% of the litigants are unrepresented by lawyers. That is because they cannot get legal aid, and like me and my daughter they cannot afford to hire the family law equivalent of Mr. Greenspan.

As we all know until now there has always been one law for the rich and one for the poor. That is because they are the only ones who can afford lawyers. But, if Greenspan is correct, it now appears the poor are joining the ranks of the middle class and they will soon find out how it feels to be denied justice in our society because of a lack of money.

Let’s all welcome the poor to our part of town. The one distinguishing feature of it is that it is lawyer-free. Not to be confused with free lawyers which is the neighbourhood they used to occupy.

My prescription for legal aid?

I would do away with it in the Family Court since very few of these actions are being fought with lawyers anyway. Lawyers do not really help in family problems because lawyers see themselves as gladiators. Would we think of solving family disputes by distributing handguns to the husband and wife? A lawyer is the legal equivalent of a handgun. Family disputes should be dealt with by a triage of counselling, mediation and arbitration (binding if necessary).

In the criminal system we should bring in a public defender department as they have in some of the American states. Such a system has flaws, of course, and may even cost more money, but the key thing is that the state is responsible for both the prosecution and the defence and the government runs a political risk if it pays to much attention to one side over the other.

This is the problem faced by Mr. Greenspan. He has no political clout because he is seen (fairly or unfairly) as a self-interested private lawyer representing a sleazy element in our society. A public defender system would have a chief mandarin as a champion to ensure that there is adequate funding, and such a person cannot easily be ignored by the government. The provincial Ombudsman should also have a role in overseeing it. And it would open the possibility that it could be made available to the middle class.

The rich will always be there to hire Mr. Greenspan, so he will not lack for a decent income.

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