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Visible Minority Youth Aren't Getting Adequate Access to Legal Aid

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Part Three of Senator Jaffer's Blog Series on Systemic Discrimination in our Criminal Justice System (Part One, Part Two)

One of the basic tenants of the Canadian justice system is the right to be represented by a lawyer. If an individual cannot afford a lawyer it falls upon the government to provide that service for its citizens.

When an at risk visible minority youth comes into contact with the law they often cannot afford the high cost of legal counsel and are forced to apply for legal aid. But what happens when they are unable to access the essential legal aid program? It is our responsibility to ensure that at-risk youth who are most in need of good representation have full access to legal aid.

In 2002 the Federal Government of Canada signed the Youth Criminal Justice Act. The intention of the act was to provide a framework for each province to reference when dealing with youth involved in the criminal justice system. Since the Youth Criminal Justice Act came into force, providing legal aid to our youth who cannot otherwise afford council has become standard practice. During the Standing Senate Committee for Human Rights' meeting on March 3 about visible minority youth and the criminal justice system, Donald Piragoff, the Senior Assistant Deputy Minister for Justice Canada, told us that all youth are entitled to legal aid when they enter the criminal justice system.

"Because these involve criminal charges, even though they are proceeded with under the Youth Criminal Justice Act, youth are entitled to legal aid if they qualify or have their own counsel. Primarily, advice would be provided by legal counsel or through legal aid programs."

Senator Merideth, who has worked closely with visible minority youth for the past 20 years, told the Standing Senate Committee on Human Rights that "there has been an overrepresentation [in our criminal justice system] of those individuals who are not getting access to counsel right away. Basically there is no counsel, there is no parental follow-up and they are more likely to be involved in the system other than those who receive counsel."

If a young person is able to get legal counsel when they enter the criminal justice system, they are less likely to be placed in custody. However, the problem is that many youth do not receive legal counsel from the moment they are arrested. Rather, they face delays which can significantly affect the outcome of their interaction with the justice system.

The legal aid programs are funded by the federal government and administered by the provinces. As a result, we find that each province arranges their legal aid program differently. According to Lisa Pomerant of the Canadian Council of Criminal Defense Lawyers, "the legal aid plans are in trouble. From a youth's perspective, whether it's a federal problem or a provincial problem, they need representation. Notwithstanding that there is a provision in the Youth Criminal Justice Act that counsel needs to be appointed, there aren't necessarily orders. As legal aid plans are coming into financial trouble, it is going to be the visible minorities that suffer from that, and those are really the youth that need the representation the most."

What Ms. Pomerant means by this is that a young person facing the criminal justice system can choose, against better judgment, not to retain counsel. The Youth Criminal Justice Act does not demand that the youth maintain counsel it merely provides them with the option. If they decide not to retain council they are left at the mercy of the criminal justice system and are less likely to enroll in a program that can help them stay out of the system.

The fact of the matter is that many at risk visible minority youth come from backgrounds of poverty where they are unable to afford their own legal counsel which means they must rely on the government legal aid program. Federal government funding to provinces and territories to provide legal aid services has not changed in 10 years. A lack of adequate funding can lead to a decrease in service and, increase the chances that a visible minority youth will go without representation.

As someone who has practiced law in British Columbia for over 35 years I know that the cost to receive good legal counsel can be expensive. The Legal Aid program is integral to ensure that young people, who often have little understanding of the criminal justice system, are treated fairly and are given sentences that are reasonable. A visible minority youth who has representation would also be in a better position to determine if they are being targeted because of where they live or the colour of their skin. We must ensure that federally funded legal aid programs are given adequate resources and that no child is left facing a complex criminal justice system without representation.