'Extreme' underfunding of legal aid faces constitutional challenge in Manitoba

'Extreme' underfunding of legal aid faces constitutional challenge in Manitoba

Canadian Civil Liberties Association asks court to find underfunding constitutes breach of Charter rights

The federal and provincial governments are being accused of violating the Charter of Rights and Freedoms by underfunding legal aid for criminal defence in Manitoba.

The Canadian Civil Liberties Association on Thursday filed a notice of application Thursday morning in the Court of King's Bench, listing the attorney general of Canada and the government of Manitoba as respondents.

"Under the Charter, all accused persons — regardless of their economic status — are presumed innocent and have the right to … receive fair trials and to the equal benefit and protection of the law," the filing says.

"Yet, in Manitoba, these rights are systemically undermined by Canada and Manitoba’s chronic underfunding of criminal legal aid."

A notice of application is a request for a judge to make a specific order based on written evidence rather than a full trial.

Calling it "a widespread constitutional rights problem in Manitoba," the Canadian Civil Liberties Association — a non-profit national human rights organization — is seeking a declaration by a judge that the current underfunding violates sections 7, 11(d) and 15 of the Canadian Charter of Rights and Freedoms.

Section 7 protects life, liberty and personal security against unfair state actions, Section 11(d) guarantees the right to be presumed innocent and receive a fair, public trial by an independent tribunal, and Section 15 guarantees equality rights — ensuring everyone is equal before and under the law, and entitled to equal protection and benefit of the law without discrimination.

That central pledge of the justice system — that people, no matter whether rich, middle class or poor, should be treated equally — is "a broken promise" in the criminal justice system, said Shakir Rahim, director of the criminal justice program at the Canadian Civil Liberties Association.

"This is the first systemic constitutional challenge to the underfunding of criminal legal aid in Canada," Rahim said during a news conference on the steps of the Manitoba Legislative Building following the application filing.

The application also seeks changes to the wording of the Legal Aid Manitoba Act, mandating support for those who cannot afford a lawyer and need one to protect their Charter rights.

"Ultimately, courts must ensure that criminal cases brought before them do not proceed in violation of well-entrenched Charter rights. The declarations sought give the government the opportunity to decide how to solve the problem," it says.

The annual contribution by the province to Legal Aid over the past several years has been “stagnant” at about $36 million, leading to one of the lowest funding rates, per case, across country, Rahim said.

Legal Aid is a government-funded program that provides legal help to people who cannot afford to pay for a lawyer, ensuring those individuals can get advice or representation in court. The federal and provincial governments are jointly responsible for providing legal aid.

Due to "longstanding extreme underfunding" over the past five decades, many accused people are unable to secure support to protect their Charter rights, the filing says.

Five years ago, 150 defence lawyers refused to show up in court for a week in order to bring attention to Legal Aid pay rates. It was the third walkout, with others happening in 2003 and 2008.

The application says when a person does get legal aid, the funding is frequently inadequate, and Indigenous people are disproportionately impacted.

Data from Legal Aid Manitoba shows 28,803 criminal adult and 2,319 criminal youth cases were opened in 2024-25, and 75 per cent of criminal legal aid adult clients were Indigenous, the filing says.

Those who need legal aid are among the most vulnerable people in Canada, with the least financial resources, often limited education and frequently poor mental and physical health, it says.

Underfunding legal aid in Manitoba unconstitutional, notice says

"Their disadvantages make it especially difficult to navigate a criminal justice system that has become increasingly complex and harsh," it says.

Something else that hasn't changed is the eligibility for legal aid, Rahim said.

A single person earning more than $31,500 in a year may be disqualified because their income is too high, "yet the cost of a private lawyer in a complex case can run well into the tens of thousands of dollars," he said.

Similarly, a contested bail hearing will only get funding for about two hours of work, which is "far removed from the reality" of the work required, Rahim said.

Sometimes, if there is no likelihood of imprisonment or job loss, legal aid will not be provided even if a person has no income, he said.

"This is despite the fact that a criminal record alone can carry profound consequences for a person's life," Rahim said.

The adverse consequences of the underfunded system include uninformed and false guilty pleas, wrongful convictions, inadequate bail hearings and unwarranted detentions, lack of preparation for trial and compromised trials, he said.

“It’s one system of justice for those who can afford to pay and another for those who cannot,” Rahim said.

None of the Charter breaches can be justified in a free and democratic society, the application says.

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The current agreement respecting criminal legal aid was signed on behalf of Manitoba and Canada in 2022 and is in force until March 31, 2027, the filing says.

"Manitoba and Canada have long known or ought to have known about the dire consequences of the continued underfunding of criminal legal aid and how such underfunding would cause [Charter] harms," it says.

The Civil Liberties Association says it made the application in the public interest. It is not seeking costs and asks that none be imposed against the organization if the application is unsuccessful.

The application is set to be heard in court on Sept. 17.

Darren Bernhardt has been with CBC Manitoba since 2009 and specializes in offbeat and local history stories. He is the author of two bestselling books: The Lesser Known: A History of Oddities from the Heart of the Continent, and Prairie Oddities: Punkinhead, Peculiar Gravity and More Lesser Known Histories.