Case Commented On: R v Hansen, 2015 ABPC 118

On May 12, 2015, CBC news reported that Emmerson Brando – a well-known Calgary-based court agent – had an extensive criminal history (Meghan Grant, “Emmerson Brando’s criminal past outlined in Calgary court memo” CBC News (12 May 2015) (“CBC News”). This was of great interest to the Calgary Bar owing to his regular appearances in court. Mr. Brando had served 90 days in Canadian jail and 33 months in U.S. prison for offences including fabricating evidence, fraud, identity theft, misuse of a social security number, and making a false statement in a passport application (CBC News). Upon completing his sentence in the United States, Mr. Brando was deported back to Canada, where he set up practice as an agent in Ontario. A few years ago, Mr. Brando moved his practice to Alberta where paralegals are not regulated (CBC News).

Once Mr. Brando’s criminal history was uncovered, Chief Crown counsel Lloyd Robertson, Q.C., brought an objection to Mr. Brando being given leave to represent a client at an upcoming trial. The resulting decision, R v Hansen, 2015 ABPC 118, written by Judge Gaschler, provides a thorough analysis of Brando’s criminal history and the way in which it affects the Court’s willingness to grant him leave to appear as an agent. After a careful review of the circumstances, Judge Gaschler held that Mr. Brando’s appearance would undermine the integrity of the justice system, and denied him leave to appear as an agent (at para 29).

This decision raises the question of agent regulation. In Alberta, court agents operate in a vaguely defined territory. The Criminal Code of Canada, RSC 1985, c C-46, authorizes defendants to appear via an agent on summary conviction matters (at ss 800 and 802). Unlike Ontario, however, Alberta court agents are not regulated. Given that agents are authorized to appear in Alberta courts, should the Law Society (or some other entity) be regulating who gets to call themselves a court agent? Doing so has obvious benefits, but some object that regulation creates unintended barriers to justice. This post examines the Hansen decision and considers the role of agent regulation in the future.

The Decision

Judge Gaschler’s decision was guided by reference to the Ontario Court of Appeal decision R v Romanowicz, (1999) 45 OR (3d) 506. Romanowicz considered whether a trial judge can refuse to permit an agent to represent an accused in summary conviction proceedings for concerns over competency or otherwise. The Court of Appeal held that a trial court can deny leave to an agent when participation in the proceedings “would either damage the fairness of those proceedings, impair the ability of the tribunal to perform its function or otherwise undermine the integrity of the process” (Romanowicz at para 61). Furthermore, that power “must be invoked whenever it is necessary to do so to protect the proper administration of justice” (Romanowicz at para 73).

While not an exhaustive list, the Court of Appeal found that the “administration of justice would suffer irreparable harm if an agent were allowed to appear [in situations involving] representation by an agent facing criminal charges involving interference with the administration of justice and representation by an agent whose background demonstrates pervasive dishonesty or blatant disrespect for the law” (Romanowicz at para 74).

However, the Court of Appeal emphasized that a criminal record or discreditable conduct does not automatically disqualify someone from representing an accused. Disqualification will only occur if the conduct pertains to situations in which “the agent’s criminal record or other discreditable acts are such as to permit the conclusion that the agent cannot be relied upon to conduct a trial ethically and honourably” (Romanowicz at para 74).

In light of the Romanowicz ruling, it is clear that there are some concerns surrounding the types of offences on Mr. Brando’s criminal record. In the Hansen decision, Judge Gaschler provided an overview of Mr. Brando’s prior convictions (at paras 8-9). They are as follows:

• 1990 – Ontario: forgery and uttering a forged document
  • Six months on each charge concurrent
• 1995 – Ontario: fabricating evidence
  • 90 days intermittent and probation
• 1996 – Ontario: two counts of fraud over $1,000
  • Suspended sentence, probation for two years and restitution of $30,000
• 1998 – Ontario: two counts of fraud over $5,000
  • Two years less a day, conditional sentence order, three years probation, restitution on the first count of $40,183.73, and restitution on the second count of $15,228.21
• 1999 – Ontario: uttering threats
  • Suspended sentence and one year probation
• 2006 – United States: mail fraud, identity theft, false statement in an application for a US passport, three counts of bank fraud, and misuse of social security number
  • Global sentence of 60 months in prison, five years of supervision upon release, $800 special assessment, and $200,000 in restitution.

While reviewing Mr. Brando’s criminal past, Judge Gaschler drew attention to a much more recent deception. On his website, Mr. Brando stated that he had served with the Royal Canadian Mounted Police for 25 years (at para 21). In reality, Mr. Brando had only served as a special constable for a few months (at para 22). Furthermore, this misleading information had only been removed from Mr. Brando’s website one week earlier when the Crown informed him that it would be objecting to his appearance as a court agent (at para 22). With respect to this point, Judge Gaschler stated “[t]hat particular falsehood, it is clear, is a significant and material falsehood in the present. This demonstrates that Mr. Brando’s dishonesty and falsehoods are not only in the past. Rehabilitation, which Mr. Brando claims, cannot in these circumstances be claimed to be complete” (at para 22).

Mr. Brando’s recent falsehood and past offences led Judge Gaschler to find that the “total record of criminal convictions and disreputable conduct is of such a kind and character that pervasive dishonesty and blatant disregard for the law and the rights of others is abundantly demonstrated” (at para 25). As a result, he concluded that “[n]o representation by Mr. Brando could be heard without the overwhelming distraction and concern over Mr. Brando’s veracity and reliability”, and denied Mr. Brando leave to appear as an agent on behalf of his client (at para 29).

Commentary

According to ss 800 and 802 of the Criminal Code, an accused can appear by agent on summary conviction charges carrying a maximum sentence of six months. In Ontario, those who provide paralegal services are subject to regulation by the Law Society of Upper Canada (see Law Society Act, RSO 1990, c L8). Among those regulations is the requirement that the court agent be of good character (The Law Society of Upper Canada, Licensing and Accreditation, Toronto: LSUC, 2014). In order to determine whether a person is of good character, the Law Society has set out thirteen guidelines, and has indicated that other information may also be considered. The guidelines consider whether the person:

• has been found guilty of, or convicted of, any offence under any statute;
• is the subject of criminal proceedings;
• has had judgment rendered against him or her in an action involving fraud;
• has ever disobeyed any order of any court requiring the person to do any act or to abstain from doing any act; and
• has been sanctioned or had a penalty imposed upon him or her by a court, an administrative tribunal or a regulatory body (The Law Society of Upper Canada, Licensing Process Policies – Paralegal, Toronto: LSUC, 2014)

Clearly, Mr. Brando would have difficulties meeting the “good character” requirement in Ontario.

Court agents remain unregulated in Alberta. In 2012, the Law Society of Alberta issued a report regarding the Alternate Delivery of Legal Services as part of a provincial initiative to enhance access to justice (The Law Society of Alberta, Alternate Delivery of Legal Services Final Report (Alberta: Law Society of Alberta, February 2012)). That report concluded that agent regulation was unnecessary despite the fact that it may expose some Albertans to a risk of harm (at 21). In its view, there was insufficient evidence indicating that regulation would increase the availability of services (at 22), and may pose some barriers to justice. Persons dissatisfied with their agent operate in a “buyer beware” marketplace and may rely on the Criminal Code and consumer protection legislation (at 23). Admittedly, the Report had difficultly collecting data on the harms caused to Albertans through a lack of regulation (at 16).

Mr. Brando’s case forces us to revisit important questions about this regulatory gap. There are arguments to be made both for and against the regulation of agents in Alberta.

As the Report notes, agent regulation will likely increase the amount of money it costs to be an agent, and thus, erect a barrier to justice. The resulting increase in fees may diminish the agent’s ability to serve the lower income clientele that relies on their services. The potential financial requirements to become an agent can be estimated from those in Ontario. In Ontario, paralegals must write the Paralegal Licensing Examination and be of good character before they can become licensed (The Law Society of Upper Canada, Licensing and Accreditation, Toronto: LSUC, 2014). The fee to write the paralegal exam in 2015 was $1,075.00, plus a $160.00 application fee, and a $165.00 fee for an application for a license (The Law Society of Upper Canada, Become a Paralegal: 2015-16 Fees Schedule, Toronto: LSUC, 2014). Financial assistance is not offered to offset the costs of writing the exam, and there are no bursaries, government loans, or grants available. Paralegals must also carry professional liability insurance (LSUC By-laws, By-law 6, Part II, section 12(1)), and pay annual fees set out in the Law Society By-Law 5. At the moment, the 2015 annual fee is up to $1,125.48 (The Law Society of Upper Canada, Paying Your Law Society Fees, Toronto: LSUC, 2014).

If Alberta were to implement regulation similar to that in Ontario, paralegals would also have to pay into the same compensation fund as lawyers. In Ontario, regulations dictate that an agent’s clients have access to the Law Society’s Compensation Fund if they lose money because of a paralegal’s dishonesty. The compensation fund is paid for “exclusively by the lawyers and paralegals of Ontario, out of their own pockets”, and has “paid out millions of dollars to help clients” since 1953, though paralegals have only been included since 2008 (The Law Society of Upper Canada, Compensation Fund, Toronto: LSUC, 2014). If paying out of their own pockets, it is likely agents will pass this expense along to the consumer through increased fees. However, is it not fair that clients should have access to a compensation fund, regardless of whether they are represented by a lawyer or agent? And is it not fair that, if agents are providing legal services, they be required to contribute to such a fund?

These increased costs will likely result in a fee increase for agent representation. As finances are one of the key reasons behind hiring an agent, this could negatively impact access to justice.

Access to justice concerns guided the conclusions in the Law Society of Alberta’s Report. The Report found no evidence that regulation would increase availability of legal services, but did find evidence suggesting that regulation discouraged or reduced independent legal services activity (at 23).

However, while regulation may raise barriers to justice, it also has obvious benefits. The arguments in favour of agent regulation are focused on facilitating the proper administration of justice. Agent regulation could decrease costs associated with administering justice through a reduction of appeals, and mitigate the onerous burden placed on judges to perform their own method of agent regulation to ensure the rights of the accused are protected.

In considering the proper administration of justice, Judge Gaschler’s decision was guided by his concern that an unscrupulous agent’s statements and questionable evidence could lead to flimsy, or even incorrect, judicial decisions. These concerns, if borne out, could lead to false convictions and a wave of appeals. False convictions are the antithesis of the proper administration of justice. Aside from compromising this pillar of the justice system, these appeals would be costly, and would result in added strain to an already overloaded court system.

The lack of regulation also shifts the burden of ensuring the quality of agents onto judges. Judges who are faced with a court agent are placed in an awkward position – the accused has elected to appear via agent, but the competence and quality of that agent is unverified. In order to ensure the proper administration of justice, the rights of an accused must be protected. Those rights are protected by defense lawyers and the courts, and as a representative of the accused, an agent must also bear that responsibility. Without regulation, even apparently competent agents must be treated with caution. These extra precautions mean that judges are essentially required to act as though they are dealing with a self-represented litigant.

When dealing with agents, judges must be able to proceed under the basic premise that the agent is competent and trustworthy. Regulation can provide the foundation for this belief.

Regulation gives judges more certainty that the agents appearing before them are competent and trustworthy. Judges will face less of a burden ensuring that the rights of the accused are protected. However, this line of reasoning also raises an important question. If regulation diminishes some of the responsibility of the courts, who is ultimately responsible for protecting the rights of an accused: the agent, the regulatory authority or the court?

Concluding Thoughts

Despite potential costs concerns, we are of the view that Alberta ought to be regulating its agents in some way. Low and middle income Albertans are desperate for affordable legal assistance, and agents are increasingly filling this need. Given this reality, it is in the Law Society of Alberta’s interest to make sure that agents meet certain criteria of integrity and competence.

Amongst many other concerns, the Law Society seeks to protect the public from the unauthorized or unethical practice of law. In failing to regulate agents, we are ignoring an area where these concerns are most prominent. Failing to regulate agents does not dissuade agents from advertising their services, or clients from seeking them out. It merely makes a client’s choice of agent a hazardous occasion fraught with uncertainty.

The Law Society’s Report was understandably concerned about access to justice. There is little doubt that access to justice is a significant concern, and if regulating agents, every opportunity should be taken to keep expenses low to keep them accessible to those who rely on agents. However, we disagree that the need to keep costs low justifies a complete void in regulation or oversight. Legal proceedings significantly impact people’s lives. In choosing a representative, members of the public ought to have some measure of comfort that their agent is ethical and competent.

The Report took the view that disserved clients of non-lawyers have protection, because they can rely on consumer protection laws and Criminal Code provisions (at 16). This view proliferates one of the most serious problems identified in contemporary access to justice research – that of clustering legal problems (Ab Currie, The Legal Problems of Everyday Life: The Nature, Extent and Consequences of Justiciable Problems Experienced by Canadians (Ottawa: Department of Justice Canada, 2007) at 1; The Canadian Bar Association, Reaching Equal Justice: An Invitation to Envision and Act (Ottawa: The Canadian Bar Association, November 2013) at 16). By forcing the burden of policing unscrupulous agents on the (often low-income) clients they serve, we are effectively snowballing one legal problem into several. In our view, it seems more reasonable to try and prevent the practice of unscrupulous agents in the first place, before problems develop.

We note that authors of the Report had difficulty collecting data on harms caused by independent non-lawyer service delivery (at 16). In other words, the Report’s conclusions were rendered without considering evidence of the harms caused by that failure. Based on that gap, we view its conclusions with caution.

Ensuring that agents have good character and have had enough training to pass an exam will help reduce the disparity between the quality of justice for the wealthy and the quality of justice for those with a lower income. Serious consideration should be given to implementing agent regulation in Alberta, and as it stands, the Alberta Law Society is the only feasible regulatory body.

The website of the Law Society of Alberta states that the objective of their Strategic Plan for 2010-2013 is “promoting access to high quality legal services” (The Law Society of Alberta, Access to Justice – Alternate Delivery of Legal Services, Alberta: Law Society of Alberta, 2010). We are concerned that the Report unduly focused on the access portion of this equation, with very little emphasis on the “high quality” requirement. With any luck, Judge Gaschler’s decision will facilitate a conversation surrounding the regulation of agents in Alberta. While there are strong reasons to implement a regulatory system such as the one already in place in Ontario, the issues of access to justice must play a key role in any regulation considerations that may take place.

This post was reprinted with permission from www.ablawg.ca. To subscribe to ABlawg by email or RSS feed, please go to http://ablawg.ca

By Sarah Burton

Case Commented On: R v Biever, 2015 ABQB 301

The link between access to information and access to justice is not often discussed, but it is implicit in our legal process. Document production, questioning, and Crown disclosure are all premised on the notion that one needs access to relevant information in order to present one’s case. This idea should also extend to legal research. Without access to precedents, case law and procedural texts, the ability to adequately argue a case is significantly impaired.

R v Biever, 2015 ABQB 301, tackles the issue of access to legal information in a unique context – the right of an imprisoned accused to conduct online legal research. While prisons provide access to criminal law texts, the Court in Biever considered whether those resources were adequate for an inmate to meet and defend the case against him. In ruling that the accused was entitled to more materials, the Court raised questions about how prisons should be providing access to legal information. Biever also raises interesting questions about how we deal with self-represented parties who simply do not want a lawyer.

Facts

The accused, Mr. Biever, was charged with of a number of offences related to bank robbery. He was denied bail and had been in custody since March 2013. After moving on-and-off through ten publicly and privately retained lawyers, Mr. Biever elected to represent himself (at paras 1, 8, 9).

Self-representation is complicated at the best of times, but it is particularly problematic for prison inmates. The Edmonton Remand Centre (ERC) – the facility housing Mr. Biever – does not provide internet access to prisoners. There is no formal library, but there is a collection of criminal law texts that can be ordered through an internal request system (at paras 22, 23). There is also no access to photocopying, scanning, word processing, or commissioning services (at paras 15, 17).

To facilitate his research efforts, Mr. Biever purchased an annotated criminal code and relied on family and friends to bring him case law. He experienced difficulty and delay getting that case law into the ERC.

In light of these difficulties, Mr. Biever launched a pre-trial application arguing that these restrictions (and particularly, the ban on internet research) violated his section 7 Charter right to make a full answer and defence to the case against him. This argument was premised on three points (as presented by an amicus):

1. the election to self-represent was his right;
2. his liberty was infringed by the denial of bail; and
3. the conditions of his detention prohibited him from accessing information necessary to defend himself (at para 26).

In an attempt to meet Mr. Biever’s continuing complaints (and perhaps, to undermine the weight of his argument) the Crown provided the accused with research materials and assistance short of internet access. In addition to the texts that are regularly available to inmates at the ERC, Mr. Biever was given:

• access to a laptop with the DART Westerns Decisions [DART] database uploaded on it; and
• an amicus defence counsel who would provide case law and guidance.

Mr. Biever appreciated these resources, but argued that they were inadequate. The DART database was limited – it provided case summaries only and was infrequently updated (paras 14, 29). As for the amicus, Mr. Biever was appreciative for this assistance, but expressed frustration at the restrictions placed on how frequently they could speak or meet (at para 34).

In defending the application, Crown counsel focused on the safety, logistical, and financial hurdles to Mr. Biever’s request. The request would cost money not only in terms of equipment, but additional staffing and monitoring costs. Internet access raised questions about witness tampering, or the ability to access and use information against other inmates or staff. Logistically, there were numerous questions about exactly where and how access would be allocated and granted. In light of these concerns and the reasonable alternatives provided, the Crown argued that Mr. Biever’s requests were neither required nor workable (at para 35).

Decision

Justice Graesser ruled in favour of Mr. Biever. He was satisfied that Mr. Biever would be unlikely to make a full answer and defence without having greater access to legal information (at paras 119, 121). Justice Graesser explained his reasoning at paragraph 87:

At a minimum, Mr. Biever should have timely and reasonable access to all Canadian criminal law case authority. … Supreme Court of Canada decisions come out weekly, and Alberta Court of Appeal decisions come out daily. Their decisions are binding authority in Alberta and timely access to these decisions is essential to anyone attempting to anyone presenting arguments in a criminal matter, whether it be at trial or on pre-trial applications.

While he declined to order the exact legal sources that must be provided, Justice Graesser had some strong “suggestions” about what reasonable access would look like (at para 89). He was “hard pressed to see” how reasonable access could be provided without some access to the internet, and in particular, the CanLII website (at paras 92, 126). While the ERC would be under no obligation to pay for online research services like Westlaw or Quicklaw, Justice Graesser saw no reason why inmates could not be provided access to these sites at their own expense. Similarly, while inmates could not expect free typing or printing services, access to word processing and printing at the inmate’s expense appeared to be reasonable (at paras 97, 114-118, 127).

This decision signalled that Justice Graesser was unpersuaded by the Crown’s arguments about practical constraints. In particular, concerns about the ERC’s ability to provide restricted internet access rang hollow in light of its own website which called the ERC “the largest, most technologically advanced remand facility in Canada” (at para 93).

Justice Graesser was equally unpersuaded that his decision would create a slippery slope. He noted that most criminally accused persons choose to be represented by counsel, either through public or private sources. These inmates would not need access to online research sites (at paras 104, 106-108). Moreover, Justice Graesser took steps to constrain the decision to its particular facts. Mr. Biever had specifically demonstrated (through his evidence and prior appearances before the Court) that he would benefit from more and better access to legal information. In his efforts and previous appearances, Mr. Biever had demonstrated his ability to make use of legal information after being given access to better resources (at paras 106-108). Many other inmates would not be able to demonstrate this benefit.

Commentary

Justice Graesser had two bodies of case law to draw from in rendering his decision. Interestingly, he opted to follow the less predictable path.

The first collection of cases was directly on point. These Ontario and British Columbia decisions held that self-represented inmates simply cannot expect internet access to conduct research. The applications were dismissed for the following reasons:

• the right to self-represent is a right, but not one without consequences (at para 56, citing R v Jordan, [2002] OJ No 5250 (QL) (Ont Sup Ct J);
• practical and security constraints render requests for internet access unworkable (at para 58, citing R v John, [2007] OJ No 2257 (QL));
• reasonable alternatives (such as the appointment of an amicus) can remedy any constitutional concerns (at para 54, citing Jordan at para 20);
• a court lacks jurisdiction to order a remand centre to provide these facilities (at para 74, citing R v Wilder, 1998 CanLII 4172 (BC SC)); and
• cases that were not complex and did not raise unsettled points of law failed to establish the need for more fulsome legal resources (at para 59, citing R v Parchment, 2011 BCCA 174).

The cases of Mr. Biever and the amicus were more general, and drew on broad principles from Canadian and US case law. These decisions discussed the ability of self-represented inmates to prepare their cases, and held:

• there is an (American) constitutional right to prepare one’s case, which includes an obligation on prisons to provide direct access to “truly adequate” law libraries (at para 68); and
• the right to make a full answer and defence can be impeded if there is a failure to provide adequate space or facilities where preparation can be performed (at para 74).

None of the cases cited by any party arose in Alberta, so Justice Graesser was free to draw from either camp. However, given that the Crown’s cases provided a much closer analogy, why did he opt for the less obvious choice?

The first reason is context-specific and was made explicit in Justice Graesser’s decision – Mr. Biever had demonstrated through his multiple court appearances that he actually uses and benefits from better access to legal information (at para 106). He had been given limited access to CanLII on a prior application, and had demonstrated an ability to make reasonable use of any resources provided (at paras 10, 111). With that backdrop, it was difficult to say that denying those resources would not impact his ability to defend himself.

In my view, however, two less explicit rationales equally guided Justice Graesser’s decision.

A. Technology and Legal Research

We live in a technology driven age, and nowhere is this more evident than in reviewing how legal research has changed over the past 20 years. Legal research is now a predominately online exercise. It is likely beyond the contemplation of every legal researcher to imagine preparing for trial without access to the internet or a computer. Given that no one in 2015 would head to trial relying solely on research collected without at least checking online legal resources, it simply does not follow that an accused can adequately defend him or herself without it.

In a related vein, the ERC’s argument that internet access is too risky or problematic does not fly in a way it might have 10 years ago. As any employment lawyer (or employee) knows, online access is regularly restricted and monitored. Providing an inmate with access to CanLII does not entitle him or her to peruse Facebook. In terms of logistics, Justice Graesser noted that internet ports were already installed in many rooms at the ERC – they just had not been connected yet. Any additional obligations in terms of monitoring or security were not unduly onerous (at paras 23, 93, 94, 104).

B. The Use (and Limits) of an Amicus

At various points in the judgment, Justice Graesser made special note of the value added by Mr. Badari, the amicus appointed to assist Mr. Biever (see, for example, at paras 103, 135). As amicus, Mr. Badari met with Mr. Biever, provided him with case law and research, and made arguments in support of Mr. Biever’s position to the Court.

Justice Graesser not only approved of Mr. Badari’s work specifically, he noted that (present circumstances notwithstanding) an amicus may often remedy the problems raised by a self-represented accused preparing for trial while incarcerated (at para 108). As Justice Graesser rightly noted, however (at paras 83, 108), there are limits to this practice. Mr. Badari was not Mr. Biever’s lawyer, and should not be treated as such.

The appointment of an amicus, as helpful as they may be to the Court, Crown, and accused, raises some uncomfortable questions insofar as this practice is used to remedy constitutional defects. For better or worse, Mr. Biever elected self-representation because he did not like, trust, or want a lawyer. In this circumstance, can we say that he was able to fairly meet and defend the case against him because, instead of providing him with access to free legal information, we appointed a lawyer to assist?

Of course, Mr. Biever’s subjective beliefs do not govern whether or not he received a fair trial – the test is an objective one. With that said, however, we must be cognizant of the limits of an amicus’s role, and the fact that self-represented persons are ultimately in charge of their own defence. Meeting that task requires access to adequate legal research materials. In deciding how to handle a self-represented inmate’s right to defend him or herself, it is a dangerous presumption to conclude that an amicus fixes the constitutional defects arising from unduly restricting their ability to conduct research. While this was not the conclusion in the present case, it was a deciding factor in other decisions (for example see Jordan, supra).

Concluding Thoughts

In my view, this case is most important for its recognition of the changing face of legal research. The move to web-based resources has forever altered the way legal research is conducted. The Biever decision simply recognizes that this reality has implications for the pre-existing right of criminal accused persons to represent themselves and adequately prepare for trial. This decision has the further benefit of correctly confining the role of a court-appointed amicus. It will be interesting to see how Alberta detention facilities respond to Justice Graesser’s suggestions, and how many self-represented inmates will reap the benefit of this decision.

This post was first published at http://ablawg.ca and is reprinted here with permission. To subscribe to ABlawg by email or RSS feed, please go to http://ablawg.ca

By Sarah Burton

Last week, Premier Prentice released the 2015 Alberta budget. Given the current economic climate and slumping oil prices, tax hikes were widely expected. This expectation, it turns out, was well founded. Although the Alberta government declined to increase corporate tax rates or implement a provincial sales tax, the budget raised taxes on income, gasoline, alcohol, and vital statistics data (among other things). This blog post is focused on another levy placed on Albertans that isn’t getting much attention in the news – increased court fees.

Under the new budget, it will cost civil and family litigants more money to access the Courts.  A series of new fees is being imposed, and the existing tariffs are getting more expensive. For example, if you have a trial that exceeds five days in the Court of Queen’s Bench, you will now have to pay a $250 daily levy starting on the fifth day. To file a Counterclaim in the Court of Queen’s Bench, you’ll have to fork over a $150 filing fee. Court of Appeal Applications and Family Law Act claims are $50 to file. In addition, in a fee I find most disturbing, a litigant in in the Court of Queen’s Bench must pay $50 to file a Statement of Defence.

Provincial Court didn’t escape the fee hikes either. Filing a Dispute Note (the equivalent to a Statement of Defence) now costs $25. Counterclaims cost $50 for claims under $7,500 and $100 if the disputed amount is over $7,500. Overall, 14 new fees and tariff increases have been imposed on those wishing to access the courts. To see the entire budget, click here (court fees are discussed at page 123).

Why are these increases a problem? The simple answer is this: going to Court is already prohibitively expensive for many low and middle income Albertans. Generally speaking, people do not want to resort to the formal Court system. It is often perceived (and rightfully so) as a necessary evil — a last option for people who have exhausted other methods of dispute resolution. You may not want to go to Court, but if you are in the midst of marital breakdown and you cannot agree on child custody, chances are you will end up in front of a judge. Likewise, if you are a small business owner and a supplier defaulted on a crucial contract, you may be compelled to Court to get your money back. Or, if you bought a house only to find mould hidden in the walls, you may also find yourself in a courtroom to recover the costs to repair that latent defect.

These examples are anecdotal, and are merely meant to demonstrate the real face of the litigation system. It is not all big corporations fighting over millions (although they are there). While those organizations would never notice or mind a $50 fee increase, often, courtrooms are filled with regular people working through what is one of the worst experiences of their life. To these people, the increased court fees are just one more barrier in an already impenetrable legal system.

Much has already been written about how low and middle income Albertans can no longer afford lawyers, and the impact this has on their ability to access justice and have faith in our system. I won’t delve into that here, but if readers are interested, check out these interesting pieces to get an idea (The Canadian Bar Association, Reaching Equal Justice: An Invitation to Envision and Act (Ottawa: The Canadian Bar Association, November 2013); (Action Committee on Access to Justice in Civil and Family Matters, “Access to Civil & Family Justice: A Roadmap for Change” (Ottawa, October 2013); and British Columbia (Attorney General) v Christie, [2007] 1 SCR 873). In light of this reality, however, it doesn’t seem right that we are further burdening everyday people with balancing the Alberta budget.

Some may view a $50 filing fee for defendants to be trivial, or just the cost of doing business. I would disagree. For Albertans living below the poverty line, $50 is not insignificant. Moreover, whether you think the fee is fair or not, it represents a fundamental shift in principle. Up to this point, people were not required to pay money simply to defend themselves against what might be a baseless, frivolous, or malicious claim.  

In an interview with the Calgary Herald, Justice Minister Jonathan Denis defended the new fees as a way to encourage litigants to resolve disputes through other methods, or in any event, use the more user-friendly Provincial court system (Jason Van Rassel, “Budget: Drivers face much steeper traffic fines”,  The Calgary Herald, 26 March 2015.) The problem with this rationale, of course, is that many of the fees are aimed at would-be defendants. Defendants don’t choose whether or not they are sued, or if so, whether the Claim against them is filed in Provincial Court or the Court of Queen’s Bench.

There’s no doubt that the economic reality of Alberta required some tough budget decisions. Increasing court fees were targeted likely because they seem relatively victimless (and they are definitely more politically palatable than a provincial sales tax). Before shrugging the fees off, however, I would ask readers to consider the hurdles to justice already faced by Alberta’s poor and middle income families. These families are already shouldering other aspects of the budgetary changes (like gas taxes and, if they earn more than $50,000, health care levies). Numerous studies confirm that they are already struggling to find justice in our convoluted court system. It is these people who will struggle to pay increased court fees because they have no other option.

Private corporations are vitally important to Alberta’s successful economic future. I don’t dispute that Alberta’s future depends in large part on it being a lucrative place for private businesses to set up shop. However, our priorities seem dangerously skewed when Alberta’s poor and middle income families are asked to pay off budget deficit by placing burdens on their ability access court, while profitable corporations face no increased tax obligations.