A hundred hours of work is simply not enough for any lawyer to mount a proper defence in a murder case.
That was the crux of the argument lawyers representing two Pelly Crossing sisters made before a judge in Whitehorse on Sept. 11.
The sisters, Lynzee and Charabelle Silverfox, are each facing a charge of first-degree murder in relation to the December 2017 slaying of Derek Edwards. They’ve brought forward an application seeking a stay in proceedings unless they receive state funding for their defences.
While both sisters qualified for legal aid, the Yukon Legal Services Society (YLSS) offered their lawyers Jennifer Budgell and Jennifer Cunningham, respectively, funding for only 100 hours of work.
The offer stated there would be room to negotiate for more time, but under cross-examination in July, then-YLSS executive director David Christie said budget restrictions would prevent him from approving anything more.
In her submissions Sept. 11, Cunningham told deputy Yukon Supreme Court Justice Elizabeth Hughes, who presided over the hearing via video link, that 100 hours for a homicide case, from start to finish, was “grossly inadequate.”
Both Cunningham and Budgell stressed that it wasn’t a matter of them personally being unable to do the entire case in 100 hours, but a matter no competent lawyer being able to unless they either “cut corners” or did a large amount of work for free.
“The applicants are not trying to circumvent the system, so to speak, to have Ms. Cunningham and I appointed as counsel,” Budgell said.
“What they’re arguing is, this budget …. it doesn’t matter who comes on, this budget is not sufficient to provide a fair trial no matter who the lawyer is, and that’s what it really comes down to.”
Cunningham said the Silverfox sisters’ situation was “unique and different” from other legal aid situations because, in this case, the YLSS has given a “hard cap” on funding whereas typically, there’s room for lawyers to provide the society a budget and negotiate.
Budgell noted that there was “no hope” or indication that legal aid’s budget would change anytime soon in order to allow for more hours.
Questioned by Hughes, Cunningham and Budgell said they couldn’t say how many hours would be adequate for the case, but that they knew 100 wasn’t enough.
The preliminary inquiry alone, they noted, is scheduled to last for two weeks.
Crown attorney Ludovic Gouaillier, however, argued that the application was “premature” and that the Silverfox sisters should speak to some other lawyers to see if anyone else would be willing to take on their cases first.
He described a stay in proceedings as a “great hammer” when it comes to legal remedies and one that should only be granted in the “clearest of cases,” but argued that the current situation was “miles and miles and miles” from that.
The Silverfox sisters, he noted, weren’t denied legal aid assistance, which is typically the first step for the kind of application they had brought to the court.
Gouaillier argued that the YLSS having an adequate, or inadequate, budget and having access to a competent lawyer were two separate issues, and suggested that the situation wasn’t about fairness but dollars — the Silverfox sisters, he said, began working with Cunningham and Budgell at the outset, wanted to keep them on but were told they weren’t getting enough money.
He added that while other lawyers who work with YLSS might not want to take on the case, the sisters have to try first before turning to the courts for help.
“I see nothing exceptional about it,” he said of the situation, refuting Cunningham’s argument that it was “unique.”
Hughes is expected to deliver her decision later this month.
Contact Jackie Hong at firstname.lastname@example.org