By: April Lount, University of Manitoba, Student at the Faculty of Law
The recent Law 360 article entitled “Cost of defending yourself” by David Dorson provides a sobering perspective of the cost relationship to quality criminal defence and the severe consequences when you are not able to meet those costs. Dorson is a pen name, providing a candid first-hand perspective of the experience of arrest, case disposition, imprisonment and parole in Ontario.[1] His message is familiar, and one that “Access to Justice” discourses have repeated countless times: “The reality is that access to justice depends to a very large degree on how much money a person has.”[2]
The high cost of lawyers is well known; however, the source of that cost is not well understood. From Dorson’s perspective, “[t]he issue is not how much lawyers charge. It’s that the system is set up to require a lot of legal time, and therefore client’s money.”[3] A strong defence demands substantial preparation. The pathway to trial requires lawyers from both sides to meet every month or so for several hours to keep the case in movement, often waiting over a year to get a preliminary hearing or trial. Legal fees quickly turn inaccessible as the hours mount. Dorson estimates “lawyers need three hours of preparation for each hour of court time, so even a three-day trial can mean nearly 100 hours of legal time – at $300 or $500 or $700 per hour.” There are also the costs associated with hiring experts or having expert witnesses. He recalls a lawyer saying that defending a typical DUI charge can amount to $75,000 in lawyer fees. “It’s hard to do anything in court for less than $50,000.”[4]
What’s more, qualifications for legal aid are limiting, and often times even those who qualify receive insufficient support because of the payment structure allotted to each case limits the hours that a lawyer can reasonably dedicate. This poses a significant hindrance to building a solid defence. Particularly where there are real risks of incarceration, the necessity for robust preparation turns dire.[5]
In Dorson’s circumstance, his case ended with a plea instead of a trial. He attributes this to cost. He was informed that he had a Charter infringement argument. “The police had likely committed an illegal search, but he was warned that “pursuing this would cost at least another $100,000 and take at least another year (beyond the two years [he had] already spent on restrictive bail).”[6] There was also the risk that the judge could find the violations to be reasonable under the circumstances.
In addition to lawyer fees, criminal charges often lead to job loss and therefore a loss of income entirely. Dorson also highlights the costs associated with the breakdown of marriages, custody challenges, and the restrictive realities of complying with bail conditions. Collectively, these amount to what he refers to as “lifetime costs”, connecting the precipitous relationship between the immediate financial demands of a criminal trial and the prospects of future income, potential pension benefits, etc.[7] In his instance, Dorson estimates his “lifetime costs” amount to well into seven figures—a financial burden he will carry the rest of his life.[8]
[1] David Dorson, “The Cost of defending yourself” (6 October 2023), online: Law 360 Canada <https://www.law360.ca/ca/other/articles/1772325/cost-of-defending-yourself-david-dorson-> [The cost of defending yourself].
[2]Ibid; see also, for example, the report recently published by the International Centre for Criminal Law Reform for a comprehensive assessment of the cost relationship to criminal defence: Ireland Bellsmith et al, “Poverty and Access to Justice: A Review of the Literature” (2022), online (pdf): International Centre for Criminal Reform <https://icclr.org/wp-content/uploads/2022/02/Access-to-Justice-and-Poverty_ICCLR_RR-2022-2_Bellsmith-Goertzen-Neilsen-Stinson.pdf> [Poverty and Access to Justice].
[3] Supra, note 1.
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] Ibid.