01/04/2012 03:03 EST | Updated 03/05/2012 05:12 EST

B.C. trial lawyers' job action ties up provincial courts over lack of legal aid

VANCOUVER - Unprecedented job action by British Columbia's trial lawyers over lack of legal aid funding in provincial courts could cripple an already overburdened system.

More than half of the province's 70 courthouses will have no duty counsel this week while another 32 have limited access to such lawyers, who normally represent people for first-time appearances or those without a lawyer.

The job action puts more pressure on a provincial court system mired in delays because of a lack of judges resulting in several cases — from drunk driving to cocaine trafficking — being thrown out of court.

Rishi Gill, a co-chairman of the Legal Aid Action Committee within the B.C. Trial Lawyers Association, said legal aid is a cornerstone of the court system, yet governments have consistently cut funding for two decades.

Since the 1990s, Gill said the government has collected almost $1 billion through a tax on lawyers' fees meant for legal aid, but the money has gone into general revenue.

"That's the crime, the money is there, it was given over by our clients to fund it and the government has basically misappropriated it," Gill said Wednesday. "Almost a billion dollars has been raised through this tax."

If the government doesn't come up with more legal aid money, lawyers plan escalating job action for the next four months by refusing duty counsel service for one week in January, two weeks in February, three weeks in March and four weeks in April.

"I can say lawyers around the province are united for the first time in quite a long time," Gill said.

"And if we don't get a response we will escalate this to possibly withdrawing services for gang trials, possibly withdrawing services for murder trials."

Gill said it was a coincidence that the high-profile cases of accused Stanley Cup rioters were among those put off in Vancouver on Wednesday. He said the resulting backlog is an example of what's to come if demands for increased legal aid funding aren't met.

Just ahead of the job action last Friday, the B.C. government announced it would increase legal aid funding by about $2 million a year, bringing the total spent on legal aid to $68.6 million annually.

The new money will be aimed at helping parents with emergency child custody issues or those who have children in government care.

The $2 million is a marginal amount in the larger picture, but it's something after years of cuts to legal aid services, Gill said.

B.C. Attorney General Shirley Bond said the job action is primarily aimed at seeking an increase in the rate paid to lawyers who provide legal aid services. They earn between $84 and $93 an hour, depending on experience.

"Any increases to the rate that lawyers are paid for this work will come from legal aid funding and mean that fewer people will receive the support they deserve," Bond said in an email.

The Legal Services Society has arranged for duty counsel for people who are in custody in 38 court locations across the province, representing 75 per cent of accused individuals, Bond said.

Neil MacKenzie, with the B.C. Crown Prosecutors office, said the job action has forced some changes in the way information is handled when an accused is in custody and doesn't have legal representation.

"In general, if an accused is unrepresented the Crown does have some additional obligations," he said. "But we frequently deal with unrepresented accused so that's not something we're unfamiliar with."

Bentley Doyle, communications director with the Trial Lawyers Association of B.C., said the Attorney General's Ministry has indicated a meeting with the group could be held mid-month, with the legal aid issue being at the top of the agenda.

No one from the provincial court was available to comment on how many cases were delayed because of the job action.

A comprehensive report completed last year and authored by longtime Vancouver lawyer Len Doust said legal aid should be recognized as an essential public service for low-income people or those whose liberty is a stake.

Among Doust's nine recommendations for change in B.C.'s legal aid system was a call for long-term and stable funding for the system from the provincial and federal governments.

"Public service providers, community organizations, legal foundations and the legal community have scrambled to fill the void through the often-heroic individual efforts of community advocates and lawyers," Doust concluded in his report.

"The days of scrambling must come to an end."

Gill said the lawyers' dispute isn't just about pumping more money into the system, but about finding efficiencies that clear away backlogs and save money.

That would mean fewer cases involving unrepresented people clogging the courts and less people in custody, he said.

"It would be a net benefit, but we can't seem to get (the government's) attention any way other than doing this type of job action," he said.

"The only thing the government seems to understand is brute force."