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SOMBA K'E/YELLOWKNIFE
Proposed changes to legal aid, including stripping the right to choose one's own lawyer in serious criminal cases such as murder, drew strong words from MLAs and defence lawyers during a review of the legislation held last week.

Bill 5, the new Legal Aid Act currently awaiting third reading by the legislative assembly, would give the final say to the program's executive director, who would consider "whether the lawyer has the necessary experience and expertise for the assignment."

"Turning over the right to select your own counsel raises some serious constitutional and human rights questions," said Weledeh MLA Bob Bromley, a member of the legislative assembly's standing committee on social programs. "Again, I think there could be more creative thinking there."

Questions were also raised over a provision that would require legal aid lawyers to notify the executive director if their clients' economic situation improves, and thus no longer qualify for legal aid.

This violates attorney-client privilege, according to defence lawyers and some standing committee members.

"Such disclosure would inevitably run afoul of solicitor-client privilege, challenge a lawyer's independence from government administration, and impinge on a lawyer's well-established primary duty of loyalty to his or her client," stated Caroline Wawzonek, chair of the criminal law section of the NWT branch of the Canadian Bar Association, in a written statement submitted to the committee.

Wawzonek goes on to state that there could be" less intrusive measures" of achieving the same outcome, such as requiring clients to provide financial updates to legal aid.

Also included in the discussion were services covered and services that were omitted from the list.

Under Bill 5, services that may be covered can be criminal, family and some civil matters. Those not covered under legal aid include defamation cases, corporate or real estate transactions, labour disputes or matters related to elections.

"I've had many people tell me that rental issues tend not to be accepted by the legal aid commission and I'm particularly concerned with the language that child protection matters aren't going to be exclusively accepted as a matter for legal aid services," said Frame Lake MLA Wendy Bisaro.

Human rights cases are also omitted from the services list.

According to Justice Minister Glen Abernethy, the number of cases and financial burden would increase wait times and eat away at the program's funding if people were allowed to use legal aid to defend themselves against human rights complaints.

"I'm not convinced that legal aid is the right place for this type of support. The human rights commission is in a far better position to ascertain when legal assistance needs to be provided," said Abernethy.

Restrictions are also coming to the amount of time a person has to appeal legal aid decisions. Currently, there is an unlimited time frame to file an appeal to the legal aid commission, but that will change under the revamped Legal Aid Act to 30 days.

Emerald Murphy, a former lawyer and program manager for the Department of Municipal and Community Affairs, raised concerns over the structural organization of legal aid.

Murphy suggested that a professionally trained manager should run the division, rather than just requiring the person to be a lawyer.

The Department of Justice is reviewing suggestions and criticisms raised during the public hearing.

A date for third reading has yet to be determined.

Fact file

Applications and rates

Number of applications received

2006/07 2010/11

Yellowknife 501 818

Out of territory 31 52

Total throughout NWT 1,455 2,050

Fees (2010/11)

Hourly Daily rate

Student at law rates: $53 $307

Less than four years experience: $81 $465

Four to six years experience: $93 $576

Seven to 10 years experience: $114 $681

Over 11 years experience: $135 $805

Source: GNWT

Fact file

Legal aid facts

By the numbers

Number of lawyers currently working with legal aid: 27

Number of criminal lawyers: 18

Number of family lawyers: 9

Number of panel lawyers (private practice lawyers contracted by the Department of Justice): 7

Wait times: Approximately two months

Legal aid funding:

Portion of the Department of Justice's budget (2012/13) allocated to legal aid: 5.19 per cent - $5.9 million in funding for 2012/13

Source: GNWT

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