By Alberta Counsel
A critique of the UCP’s budget
For progressives, it is difficult to discuss the impacts of Alberta’s recent budget on the justice file without also examining its impacts on social services and the economy. Through this lens, the budget demonstrates a serious case of misplaced priorities.
While progressives understand that protection of life and property relies in part on the deterrent of being incarcerated, they see the focus on punishment common in conservative circles as not only wrong-headed but counter productive. Instead, focus should be turned to rehabilitation and addressing the social determinants of criminal behaviour, including systemic and institutional factors.
Prison populations have substantially higher rates of mental illness than the general population. A disproportionate number have been involved with the child welfare system and/or are Indigenous. Many Albertans with privileged backgrounds have social networks and resources available to help them recover from poor decisions, while others do not. For many in our jails, the overwhelming power of racism, poverty, mental illness, and abuse heavily sabotaged their odds of a good life. For the vulnerable, government services can mean the difference between life and death, health or homelessness, a job or a life of crime. In other words, investments in social services and jobs today means less demand on the justice system tomorrow. Cuts are the last thing we need.
Budget 2019 reduces government expenses by 2.8% over the next four years, along with 7.7% of public sector jobs. This, to help pay for a corporate tax cut to 8% from 12% by 2022, even though Alberta already has the lowest taxes, and at a cost somewhere between $2.3 and $4.7 billion, with no guarantee of a single job created. According to the Parkland Institute, after accounting for population growth and inflation, this amounts to an 18% reduction in spending by 2022-23. Even ministries saved from absolute cuts will hurt. A 1.3% increase in health expenditure between 2018 and 2022 will feel more like a 17% reduction in spending. Early childhood intervention spending will decrease 30.5%. A reduction in expenditures for the Ministry of Justice and Solicitor General of 6.5% (almost $94 million) will feel more like 25%.
The UCP will eliminate 764 government positions this year, including 198 (almost 3%) in the Ministry of Justice and Solicitor General, and more in outer years. Many of these cuts will be achieved through attrition and privatization.
Not filling vacant front-line positions in areas like children services and justice will impair the ability of remaining workers to do their jobs. Privatization can have detrimental effects on vulnerable populations. Private providers often increase profits by hiring less experienced staff, paying lower wages, deferring maintenance on government-owned assets, charging new fees or simply gaming the system by not providing comparable services.
Most public servants are smart, passionate and often over-worked. Caseloads in children's services, income support, and criminal prosecutions are intolerable, and many staff quit due to burn-out.
Alberta’s court systems are already stretched to their limits. Proceedings have been delayed because court clerks were unavailable to open courtrooms, despite every other relevant person being on hand. Charges have been dropped because of delays, pursuant to the Jordan decision.
Courtroom services funding will fall $42 million by 2022-23, a 20% reduction before population growth and inflation. Although the minister has promised a new e-court initiative will increase efficiencies and reduce costs, only a few million of the $27 million promised has been budgeted for 2019, and in the context of an overall decreasing budget it’s unclear where the remainder will come from and when.
By 2022-23, legal services expenditures will decrease over $17 million or 31.8%. Last month we learned that up to 90 civil lawyer positions could be outsourced. This decision may need reconsidering given that some legal experts have predicted that outside counsel will, in fact, cost more. Of course, in-house counsel also brings other intangible benefits such as accessibility, institutional knowledge, ability to leverage relationships in government, and an ethical commitment to the public good. Their work is critical to preventing costly legal mistakes worth hundreds of millions. When asked about the decision, the minister suggested any laid-off civil lawyers should apply for vacant Crown prosecution positions.
Only time will tell if the government’s decision to sacrifice current services while it waits for its risky shotgun approach to tax cuts will work. Meanwhile, cuts to services relied on by vulnerable populations will surely increase demands on justice services, taking away resources for existing caseload and serious criminality. These increased demands could wipe out any gains made by new investments in the justice system, when and if those ever happen.
In defence of the UCP’s budget
The recent budget proposal by Alberta’s UCP government included substantial cuts to a number of ministries, including Justice and Solicitor General. The budget proposals also included a number of increased line items, including funding for 50 new Crown Prosecutors, more mental health and addictions services, and community and social services that target human trafficking and sexual exploitation. The justice budget, like every decision of governing, is an example of balancing competing demands.
Even though the ministry is receiving a small increase over last year’s budget in 2019-2020, some departments are seeing real cuts, and the ministry will see funding fall behind based on the rate of population growth and inflation over the next four years. For example, very fair criticism comes from the ranks of court services personnel who will bear the brunt of overall cuts and have continued to see frozen budgets for several years. The unfortunate reality is that the cuts must come from somewhere, and the government is targeting an area ripe for change. It is rare that any department faces cuts and finds no fault in the decision. The evidence, however, supports moving to an electronic-based, as opposed to human resources-based, court administration system.
While no part of society is immune to the rapid digitization and automation of our era, it is no secret that the courts are last adopters of, well, everything. Legal systems generally abhor any new way of doing things, and Alberta is afflicted worse than most. Almost all US jurisdictions have moved to fully electronic court records management systems. British Columbia even has an online tribunal for small civil claims. Australia and Turkey have almost every aspect of their judicial systems online, with studies documenting their transition from analog to digital. One study from the US in 2010 suggests that a full transition to an electronic court system could eliminate up to 60% of court clerical work. Alberta’s court administrators are fortunate the cuts are not harsher – even though they very likely will be in the next decade.
While the cuts in the Alberta budget are harsh and affect real people with real families, the public sector is not immunized from the economic realities of the day. When revenues are not exceeding expenses, leadership has to find ways to make ends meet, whether it’s a private business or the provincial government. And a long-term solution cannot be to just whip out ol’ reliable AMEX. Alberta spent over two billion dollars on interest charges last year, and those costs will only continue to increase unless some cuts are made now. No one wants to see people out of work, but the bubble only continues to grow without decisive action – and the sooner the better.
Failing to act now by making cuts like this will absolutely, without a doubt, destroy our ability to fund the basics of our government, like schools, hospitals, and transportation infrastructure. The financially responsible thing to do is identify areas where we can trim through small cuts, where the effects will be felt but will not devastate the department. Albertans elected the UCP with a strong mandate to look at the books in exactly this manner, but to also increase spending in other areas, like the hiring of 50 new Crown Prosecutors. It may seem counterintuitive to increase the caseload capacity of the Crown Prosecution Service, and also cut the capacity of the courts to administer those same cases. But that is not actually what is happening. The government is ensuring that crimes that are currently not prosecuted will be – and is simultaneously working to reduce per case costs for the courts with new technology and better processes. Would it be better to have sustained funding for court administrators while the transition is happening? Absolutely. But it would also be better to not have had countless successive governments increasing spending year after year without considering what Albertans in 2020 might think about it.
Another criticism of the budget is that it moves legal work from in-house lawyers to external counsel. The crux of this criticism is that the hourly rates are much higher for external counsel than for in-house government lawyers. Government should be looking to best practices in industry on decisions like this, and the best practice is absolutely using external counsel. Cost implications such as overhead, padding pensions, and variable workloads corresponding to market competitive rates form the basis for major private sector entities like banks, insurance companies, and utility providers to extensively use outside counsel. Of course, there are some things the government cannot outsource, such as its core services like prosecuting crimes. In the wake of the Jordan decision, which has (to put it simply) tremendously increased the strain on prosecution timelines, this government has decided to respond aggressively with its funding of 50 new Crown Prosecutor FTEs, fulfilling one of the UCP’s main campaign promises.
Strong decisions need to be made to get the books balanced and experiments like digitization of the court administration system should be pursued. The government very well could be creating an access to justice nightmare where cases will be backlogged worse than they already are – but we don’t think so. We will see our courts transition to the 21st century like other common law jurisdictions have already. Cases will continue to be resolved in an increasingly more efficient manner and modest savings will be incurred by the taxpayer. Cuts need to be made somewhere, and our analog courts system is a good place to start.
Alberta Counsel is a multi-partisan law and lobbying firm serving clients including municipalities, non-profits and charities, major corporations and associations, and politicians and business leaders. Its lawyers and lobbyists pride themselves on openly discussing the controversial political issues of the day.