PRO BONO: Legal Aid lawyers are just as good as any other

Dear Readers: I must say sorry for not having any recent columns available. I will do my best not to have this situation happen again. My sincere apologies and here is this month's column.

Dear Tuma:
I'm looking for a lawyer and was told to talk to you. A family member is in jail and the Legal Aid lawyer is not working to get him out. Can you help out? How much does a lawyer costs?
Legal Aid Is Not Enough

Dear Legal Aid:
You need to send me some more information than what was in your e-mail. What is the problem? Your family member needs to contact me directly and I can then refer him or her to a lawyer that is knowledgeable about criminal law.

I am often asked to either represent someone or to refer a potential client to a lawyer, but before I do I like to talk to the person directly to find out some basic information, such as the person's full and legal name, the type of charges, any upcoming court dates, and, finally, whether the person can afford to hire a lawyer. Lawyers do not come cheap, and access to the legal system remains a significant barrier to Indigenous folk.

The first thing I want to point out is that Legal Aid lawyers are just as good, if not better, than any in the private bar. They work in the criminal and family law field every day dealing with a variety of cases. If your family member already has a Legal Aid lawyer, then your family member is in good hands.

Now, if your family member is not satisfied and wants to fire the Legal Aid lawyer, it is simple to do. Just tell the Legal Aid lawyer, thank you for the job and give your file over to a lawyer that you have hired.

Each lawyer has a set retainer fee they will want upfront before starting any work on your file. This retainer fee can be anywhere from $500 and up. I have heard of some cases where the retainer fee was $15,000. It all depends on the type of case, the complexity and the experience of the lawyer.

Once the lawyer starts working on the file, you can expect to pay anywhere from $100 and up for each hour worked on the case. This does not usually include disbursements, such as long distance, postage, court filing fees and photocopying. The bill can quickly add up. Finally, the full cost depends on whether the person wants to take their case all the way up the Supreme Court of Canada. For this, you may be looking at a bill of more than $100,000.

All across Canada, each province and the federal government have cut funds given to Legal Aid. These cuts have affected the folks who rely on Legal Aid to represent them, in particular, Indigenous folks and women. Meanwhile many lawyers do provide some free services called Pro Bono, but this may not help you in your family member's case. I suggest having your family member sit down and properly discuss their case with the Legal Aid lawyer.
Tuma

Dear Tuma:
I can't wait for the band to build me a house so now I'm looking at building my own house on the rez. I took out a section 10 mortgage, but now the bank is asking me to arrange for obtaining a certificate of possession (CP). Do I really need this and how do I get it?
Homesteader

Dear Homesteader:
Congratulations on building your own home. It is a big step for anyone. I am not sure why the bank would be asking for a CP, because it is of no use to them.

The process is you would request one from the band council. The band council, in turn, considers and either recommends or rejects your request. This response is then sent on to Indian Affairs, which may or may not issue one under section 20(2) of the Indian Act. Since you are paying for the mortgage with a ministerial guarantee of the loan, the band may refuse to issue you a CP unless the mortgage is paid out. If this happens, you can request a certificate of occupation, limited to a two- or three-year period until the end of the term of the mortgage. This may be done to protect the band's interest, especially if you default on the mortgage.

If you default on the mortgage, then the bank will go to Indian Affairs, demand and will receive payment under the ministerial guarantee and then the department will take the money out of general band funds. Thus, the band is really the "co-signer" of the loan. This is why they may not want to issue you a CP unless the mortgage is paid off.
Tuma

This column is not intended to provide legal advice, but rather highlight situations where you should consult with a lawyer. Questions can be sent to tumayoung@yahoo.ca