“The system comes down hardest on those without the means to defend themselves… It’s easy to prosecute those people and put them away and not think twice about it because no one is speaking for them”


The Battle of Thermopylae

Thermopylae is a mountain pass near the sea in northern Greece. It has been the site of several famous battles in antiquity. Perhaps the most famous, was a battle between the Persians and Greeks in August 480 BCE – known as the Battle of Thermopylae.

The Greeks were vastly inferior in numbers. Notwithstanding, as their final stand, they held a narrow pass for a span of three days. Ultimately, the Greeks were defeated, and the Persians took control of the pass. However, their heroic defeat would assume the status of legend for later generations of Greeks.

The battle has been depicted, albeit with artistic license, in sensationalized works of fiction, such as the popular firm “300”. But the symbolism and historic significance of the battle of Thermopylae runs deeper.

Historian Paul Cartledge explains, had the Persians been successful, the Greeks believed they would have been subjected to an authoritarian regime. As such, the cause, for the Greeks,

has resonated… throughout the Western cultural tradition as a deed emblematic of the peculiar Greek… qualities of reasoned devotion to, and self-sacrifice in the fame of, a higher collective cause, Freedom…[1]

In defence of such values, the symbolism of the battle is that even a small force, resolute in their convictions and beliefs, and in defence of freedom, can affect meaningful change.

Glenn Ford

Marty Stroud, a former Louisiana prosecutor, recently issued a rare public apology. Stroud had been involved in the prosecution of Glenn Ford, who spent 30 years on death row for a crime he did not commit. Courageous in both in his humility, and candour he stated:

I want Glenn Ford to be compensated. I want him to have happy days, joyful days, which he didn’t have for 30 years. I want his case to have meaning. I believe there is a special place in heaven for people like Glenn Ford who have suffered so much on this earth as a result of the injustices of the system. [2]

What is perhaps most significant, was his account of where, he believed, the system had gone wrong. He recounted that

the system comes down hardest on those without the means to defend themselves… ‘It’s easy to prosecute those people and put them away and not think twice about it because no one is speaking for them’[3]

Right to Counsel and Trial Fairness

In criminal proceedings, the right to counsel means that every person has the right to assistance from a lawyer. This is the one the most familiar and one of the most important rights in common-law countries. This right is referenced under s. 10 of the Canadian Charter of Rights and Freedoms and similar language is included in 153 of the 194 constitutions in the world.[4]

The right to counsel is a cornerstone of a criminal justice system and closely tied to the right to a fair trial. However, as the United States Supreme Court explains in the landmark decision in Gideon v Wainwright,[5] the “noble ideal” of a fair trial “cannot be realized if the poor man charged with a crime has to face his accusers without a lawyer to assist him”.[6]

Similarly, in Powell v Alabama,[7] the United States Supreme Court observed that on the particular facts that were presented, the importance of counsel was cited in light of the ignorance and illiteracy of the defendants, their youth, the circumstances of public hostility… and, [that] above all, that they stood in deadly peril of their lives…[8]

As Court explained,

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law… He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.[9]

While our legal system aims for fairness, it is also an adversarial system. The state has a tremendous artillery of tools at their disposal. It is a well-funded machine comprised of police investigators, expert witnesses, and skilled prosecutors.

In many cases, an individual facing this system will, by all appearances, perceive a situation, not unlike that faced by the Greeks in the Battle of Thermopylae. An unrepresented person, lacking knowledge, legal training, and suitable resources, is ill-suited to defend themselves against such an adversary.

Legal Counsel and Access to Justice

Notwithstanding the fundamental importance of the right to counsel in criminal prosecutions, in Canada, an individual can face numerous barriers in accessing counsel. Every year, thousands of Canadians face criminal charges without legal representation.[10] The Canadian Bar Association recently stated that access to justice in Canada is “abysmal”.[11] Further, it cautions that

[i]naccessible justice costs us all but visits its harshest consequences on the poorest people in our communities.[12]

Too often, the very people that are most in need of legal representation, are those who struggle to gain access to it. This includes individuals subjected to destitute socioeconomic circumstances. In many cases, having been subjected to childhood physical and sexual abuse, homelessness and mental health issues, and otherwise those without financial means or family support. These are the individuals who are all too often overrepresented in the justice system and our correctional institutions.

The Honourable Beverley McLachlin, former Chief Justice of Canada, recently identified access to justice as one of the most pressing issues in our legal system.[13] As she explains:

The most advanced justice system in the world is a failure if it does not provide justice to the people it is meant to serve. Access to justice is therefore critical. Unfortunately, many Canadian men and women find themselves unable, mainly for financial reasons, to access the Canadian justice system[14]

The first barrier individuals face in accessing legal counsel, is that lawyers are expensive. The cost of a straightforward criminal trial can run from between $2,500 to $25,000. A year-long murder trial could run to hundreds of thousands of dollars. In too many cases, the cost of funding such a defence is prohibitive.

Individuals who cannot afford to hire a lawyer often apply for state-funded assistance through Legal Aid organizations. However, the criteria to qualify for legal aid, for example, in Alberta, is strict. A single individual will not be eligible for publicly funded representation if they earn more than $19,653 per year. This figure is well below the low-income cut-offs established by Statistics Canada.

Essentially, unless an individual is living in poverty, they will not be appointed a lawyer. This precludes an entire class of individual – which might be described as the ‘working poor’ – from effective access to legal representation.

Certain procedures exist whereby individuals are able to apply to a court for legal state-funded counsel (referred to as Rowbotham applications).[15] Where these applications are successful, the government is ordered to pay the legal bill. However, in many cases, the criteria for state-funded legal counsel has been criticized as being overly restrictive, and in need of reform.[16]

Moreover, even when extended state-funded counsel, individuals still face many barriers. Even when individuals meet the criteria for legal aid coverage, they still face a significant delay in receiving coverage. Thereafter, even if granted coverage, an individual still faces a significant resource inequality comparatively to the prosecution, and police, who have tremendous resources at their disposal.

Further, particularly in Alberta, the current statute of government funding for Legal Aid has been heavily criticized.[17] It has been suggested that the Legal Aid system in Alberta “remains perpetually near collapse”, that government funding favors “police, prosecution service, and the jails…”, and that the ultimate burden of these shortcomings falls on defence lawyers, and disadvantaged Albertans.[18] This is contrary to recent cautions by the Supreme Court of Canada that “access to justice should not fall solely on the shoulders of the criminal defence bar and, in particular, legal aid lawyers”.[19]

Concerns about access to justice continue to pose serious problems for the criminal justice system in Canada. And cases such as Glenn Ford suggest that this is something that should concern all of us. If our system is committed to justice and avoiding wrongful conviction, changes must happen. Defence counsel acts as a shield to temper the tremendous power of the state. Their role is to ensure that an accused person’s right to a fair trial is protected. Without adequate access to counsel, we cannot ensure fair trials. Only through ensuring effective access to counsel, can we ensure that the right to a fair trial is protected, and we can have full confidence in the justice system – and rest well knowing that a conviction was just and correct.

Unfortunately, ensuring access to justice in many cases continues to fall on the shoulders of the criminal defence bar. I am encouraged by the commitment of my colleagues. While a small force, our group remains resolute in conviction and belief, and our ability to affect meaningful change. We believe that there is reason to be optimistic. There are strong indications that there is increased awareness of these issues, with all stakeholders in the system. However, the changes that are necessary for universal accessibility for justice will ultimately be facilitated not only through fearless advocacy but by raising awareness with all stakeholders in the system and pushing for meaningful change.

[1] Paul Cartledge Thermopylae: The Battle That Changed the World, (New York: Woodstock, 2006).

[2] “’I’m ashamed.’ Former Louisiana prosecutor apologizes to man he put on death row” Canadian Broadcasting Association, Online < http://www.cbc.ca/radio/asithappens/as-it-happens-tuesday-edition-1.3007363/i-m-ashamed-former-louisiana-prosecutor-apologizes-to-man-he-put-on-death-row-1.3007624> (Accessed April 25, 2018).

[3] Megan Rose “The Deal Prosecutors Offer When They Have No Cards Left to Play” (2017), The Atlantic online: <https://www.theatlantic.com/politics/archive/2017/09/what-does-an-innocent-man-have-to-do-to-go-free-plead-guilty/539001/> (Accessed April 25, 2018)

[4] Elkins, Zachary, Tom Ginsburg, and James Melton. 2013. Constitute: The World’s Constitutions to Read, Search, and Compare. https://www.constituteproject.org/.

[5]  (1963) 372 US 335 (USSC).

[6] Ibid at p. 344-345.

[7] 287 US 45 (USSC) at 68-69.

[8] Ibid. at 71.

[9] Ibid. at 68-69.

[10] Robert J Hann & Joan Nuffi eld, Court Site Study of Adult Unrepresented Accused in the Provincial Criminal Courts — Part 1: Overview Report (Ottawa: Research and Statistics Division, Department of Justice Canada, 2002) at 6, 14.

[11] The Canadian Bar Association, “Reaching Equal Justice Report: An Invitation to Envision and Act” (Report of the CBA Access to Justice Committee, November 2013) at 8.

[12] Ibid.

[13] The Honourable Beverley McLachlin “The Challenges We Face” Remarks of the Right Honourable Beverley McLachlin, P.C. (2014) Online < https://www.scc-csc.ca/judges-juges/spe-dis/bm-2007-03-08-eng.aspx> (Accessed May 14, 2018).

[14] Ibid.

[15] R v Rowbotham, [1988] 41 CCC (3d) 1 at 66, 25.

[16] Manasvin Goswami “Reforming Rowbotham: Towards Fairer Financial Eligibility Standards for State-Funded Counsel in Criminal Trials” (2017) 26 Const F 19.

[17] Shawn Logan, “Defence lawyers say Legal Aid ‘neglected and degraded’ in Alberta”, Calgary Herald, Online: <http://calgaryherald.com/news/local-news/defence-lawyers-says-legal-aid-suffering-from-funding-crisis-in-alberta> (accessed May 19, 2018).

[18] Ian Savage “Open Letter to The Honourable Kathleen Ganley Minister of Justice and Solicitor General Government of Alberta” April 16, 2018, Online: <https://postmediacalgaryherald2.files.wordpress.com/2018/04/open-letter-to-minister-ganley.pdf> (accessed May 19, 2018).

[19] R v Cunningham, 2010 SCC 10 a paragraph 45 cited in Savage, “Open Letter”, supra.