Yukon legal aid’s current budget will only allow it to pay for 100 hours of preparation work on a complex homicide case involving two suspects, an amount of time their lawyers say simply does not allow for them to mount a proper defence.
David Christie, the executive director of the Yukon Legal Services Society (YLSS, also known as legal aid), made the assertion in court July 30.
He was being cross-examined on an affidavit he’d filed in response to an application from lawyers representing Lynzee and Charabelle Silverfox, who are both facing first-degree murder charges in relation to the 2017 death of 37-year-old Derek Edwards in Pelly Crossing.
Their lawyers, Jennifer Budgell and Jennifer Cunningham, have turned to the Yukon Supreme Court to seek more funding to allow for more hours of preparation for the case.
An affidavit filed by Cunningham’s articling student, Lorna Fadden, notes that they’ve already received an enormous amount of evidence to review, including 3,315 pdf pages, 2,674 photos and 114 hours of audio and video.
First-degree murder, the affidavit also notes, is the most serious criminal charge someone can face in Canada, with an automatic sentence of life in prison with no chance of parole for at least 25 years if convicted.
Christie, in court, said he thought Budgell and Cunningham’s request for more preparation hours was fair, but that legal aid’s budget wouldn’t allow for it.
“I think it’s a reasonable request, I think it meets that test … but it’s the second part of what I have to consider, our budget, that it doesn’t meet,” he said.
“And that’s an unfortunate reality. I’d be much happier when our budget does allow to approve more requests, but (approving requests is) budget-dependent.”
In his affidavit, filed in June, Christie wrote that the YLSS has the smallest budget of any legal aid plan in Canada, with the Yukon government providing $2.64 million in core funding for 2020-21.
On top of criminal defence, it also handles child protection, family law and Mental Health Act proceedings. While it has staff lawyers, the society often outsources work to private lawyers due to capacity issues.
“YLSS resources are quite limited and if too many resources are spent on one matter, it has an adverse, limiting effect on other services,” Christie’s affidavit says. “That means that some Yukoners will not get services that they desperately need.”
The affidavit also notes that two lawyers from Alberta, over the past two years, have accepted homicide files in the Yukon at legal aid’s rates, and that Outside lawyers often willingly take on Yukon cases to get experience practicing in the territory. It notes that YLSS has received “positive expressions of interest” from a lawyer in Alberta and another in Ontario in taking on the Silverfox matter.
Budgell and Cunningham declined to comment for this story, but their application materials state that both have developed good working relationships with the Silverfox sisters, both of whom wish to keep them on as counsel. However, the materials say that neither lawyer can mount a proper defence with the time legal aid is able to pay for.
It’s the second time legal aid funding for a murder case has recently come before the Yukon Supreme Court.
David Tarnow, a Vancouver-based defence lawyer who practices in the Yukon, brought a similar application in the case of his client Everett Chief, who’s facing two counts of first-degree murder in relation to the 2017 killings of Wendy Carlick and Sarah MacIntosh in Whitehorse.
He, too, was given 100 hours for preparation.
“It’s just completely inadequate,” Tarnow, whose application for more hours was unsuccessful, said in an interview Aug. 5.
”You’ve got to do a good job; you can’t do a murder case with all the disclosure that we get from the Crown prosecutors for a hundred hours. It just can’t be done … I guess I’ll do it, but I won’t get paid properly. It’s just so inadequate.”
He estimated that in his case, he would actually need 250 to 300 hours for preparation to do an appropriate job.
Budgell and Cunningham will make their arguments on their application in court next month.
Contact Jackie Hong at jackie.hong@yukon-news.com