Stop Your Whinging. Alberta Justice in Crisis?

“To Whinge” – “to complain persistently and in a peevish or irritating way”.

A Crown prosecutor “can’t remember the last time he had a work free weekend”.  According to a CBC news report, the Alberta Crown Prosecutor’s Office is overworked and understaffed – it’s in a state of continual crisis.  

https://www.cbc.ca/news/canada/edmonton/alberta-crown-prosecutors-justice-government-1.5393024

It is so bad working for the Government that according to one Prosecutor, there is a “revolving door” out of the office.  The workload is “relentless”.  This Prosecutor is allegedly “…one of hundreds of Alberta prosecutors…dealing with never-ending staff shortages, frozen wages, unpaid overtime and crushing workloads”.  

To make matters worse, Government lawyers aren’t allowed to form their own union to battle for fair wages.  They complain that their paltry salaries– between $81,000 and $191,000 annually (not including benefits) – are such a pittance compared to other provinces or private counsel that, combined with poor working conditions and security issues, they need union certification in order to collective bargain a fair deal.  Crowns Damian Rogers and Dallas Sopko say “their colleagues often quit because they can make more money working in another province, with the federal Crown or as private counsel”. Damian Rogers, the President of the Crown Attorney’s Association “wouldn’t recommend the job to a colleague right now”. 

STOP YOUR WHINGING

Mr. Rogers wouldn’t recommend the job to a colleague right now? 

I wonder if Mr. Rogers is aware that Alberta’s unemployment rate is presently 7.2% -- well above the national average.  I wonder if he is aware that thousands of taxpaying Albertans across this Province – responsible for paying his salary and indeed all Government lawyer salaries -- are strained to pay mortgages, make ends-meet and in many cases, struggling just to keep their job?  I wonder what the victims of Alberta’s oil patch carnage would say to Mr. Rogers? Many of these people would happily work at camps and labour their fingers to the bone just to have a salary.  I wonder what those in private practice (such as mom-and-pop businesses who no longer have the extra dollars of Albertans flowing into their cash registers), struggling to pay the bills would say to Mr. Rogers? I think they might say, “we should all be happy to be working” and “in today’s economy, maybe we all need to do a little more for a little less”.  

To borrow a quote from Rory McCann’s ‘the Hound’ from HBO’s Game of Thrones: “whatcha whinging about”.  “Your lips are moving and your complaining about something, that’s whinging”. 

the cbc article

I encourage everyone to seriously read this article (linked above) and ask a basic question: what evidence is there in this news report other than the anecdotal whining of a couple of Government lawyers?  Is there any evidence in the article that Prosecutors are actually overworked, underpaid and suffering from poor working conditions? Other than peevish complaints, what evidence is there that either Mr. Sopkow, Mr. Rogers or anybody else are burning the midnight oil, sacrificing their precious weekends or reasonably suffering in a crushing and unsafe working environment?

Of course, things can always be better, we can always ask for more, but isn’t there a point where we just have to make-due with what we have -- maybe even to be a little grateful? 

More to the point, if it is really that bad, then just leave. Stop your whinging and change your stars. Join the golden spires of private industry - become an Alberta criminal defence lawyer -- I dare you.

THE INFORMATION VACUUM

What the whingers aren’t telling you is,…well…almost everything.  

Arguably, they aren’t leaving their cozy, secure positions at the taxpayer’s teat because they either don’t have other options or are too timid to take the risk of joining the uncertain world of private practice. They aren’t telling you that they probably know some lawyers, working for large private firms, who basically sleep at the office and they aren’t telling you that their anecdotal reports are not necessarily representative of every Crown Prosecutor working in every office across the Province (or even the majority of them).

What is most striking about CBC writer, Janice Johnston’s article, is that it is little more than a propaganda piece built on anecdotal reports from a couple of self-interested employees of the taxpayer; one being the President of the very Association tasked with the responsibility of getting its Government lawyers more money, more benefits and more free time.

COUNTERPOINTS

To offer a few anecdotal counterpoint points, I can tell you that in my jurisdiction I know of at least a half-dozen lawyers who in the last few years joined the Prosecutor’s Office from private industry and only one who has voluntarily departed for private practice. I know of a few private practicing lawyers (including Calgary criminal defence lawyers) who have applied for the Crown’s office because their business is not what it once was. This leaves me to wonder, if the Crown’s Office is a revolving door, which way is it revolving, in or out?

As I have mentioned in other posts, I articled with the Office of the Attorney General in Alberta in 2002 and worked as a full-time Prosecutor from 2003-2005. My salary was then approximately $51,000/year, thirty-thousand dollars less than the bottom-end Prosecutor salary of today.  As I have argued in a previous article, the office was significantly smaller.  Notwithstanding its small size, its prosecutors competently handled criminal cases, which included each lawyer running multiple impaired driving trials, domestic violence trials  and other serious cases every-week.  Now, I am not saying this is ideal, but the fact is, in 2005 it was not unusual for individual Calgary Prosecutors to appear in trial courts between 3-4 days/week, carrying a half-dozen cases into court for each of the morning and afternoon sessions. If we finished early, we wouldn't return to the office (as Crowns do today); rather, we would assist other courtrooms, which could include picking up a trial (including those with Charter issues) and running them.  

It is further relevant  that in almost every year over the last two-decades (2015-2017 being the exception) crime rates in Alberta have been declining, not going-up. Crime rates in Canada have been consistently on the decline over the last few decades.  If crime rates are on the decline, does that mean that there is more work for lawyers prosecuting crime or less? Also, we can't ignore the fact that in Alberta, Prosecutors rely on police to lay charges -- a distinction from other Provinces such as Ontario and British Columbia where Crown "charge approval" is required.

Of the articling students who started either the year before me, the same year or the year after, many of them are still with the Prosecutor’s Office. Of those that departed, I can think of only two (one being me) that joined private practice (the other former Crown now working in Vancouver). Over the last decade-and-a-half most of the Crown hire-back articling students are still employed with the Crown – all them earning salaries well north of the 81,000/year bottom. If many are staying, does this support the legitimacy of the claim of underpaid bad working conditions or something else?

Anecdotally, in 18 years as an Alberta criminal lawyer, I don’t know of a single prosecutor who has been attacked or put in meaningful danger while employed in the line of duty.  Though I don’t dispute that a Prosecutor may have been assaulted on the steps of the Edmonton Courthouse (as stated in the CBC article), this appears to be an exceptionally rare and isolated incident. Are Crowns really attending Courthouses across the Province with trepidation?  Even if I accept that this single, isolated incident in Edmonton represents an example of a serious security concern for Prosecutors, what is the solution? Do Mr. Rogers and Mr. Sopkow now need the taxpayer to fund a full-time security detail beyond the platoon of armed Sheriffs and other law enforcement who are already present at the courthouse? Is this a rational response to such a rare and isolated incident?

These are just a few wicked questionable little questions.

some facts

According Nuevo.ca, salaries for Federal Prosecutor’s range from $57,553/year to $134,421/year – significantly lower than that for Alberta Justice lawyers.  From this, does it make sense that Alberta Crowns are leaving for more money at the Federal Government?

Lets look at the salaries and benefits for the complainants in this article.  As the Alberta Sunshine List reports, for Mr. Sopkow, the taxpayer is on the hook for a paltry $143,924.30/year with additional benefits totalling $31,242.29. Mr. Rogers earns $173,298.99/year plus $41,653.77 in additional benefits.  In just eight years Mr. Sopkow (a mid-experience lawyer) has ensconced himself in a secure, full time position where he probably has about 4 weeks of paid annual leave.  Both Mr. Sopkow and Mr. Rogers appear to be earning more than the average Federal Crown and neither of them shoulders the risk or expense of private practice. 

RISK VERSUS REWARD

In our economic system there is risk and reward. If you take risk, there may be reward.  In contrast, less risk often translates into smaller or more conservative rewards. Government industry is known to have less risk and thus less reward, where on the other hand, private industry has more risk, but comes with the opportunity for greater reward. Put another way, unlike having stable full-time employment with a virtually guaranteed salary and benefits that comes with a Government job, those in private industry shoulder the risk of instability. Sometimes the risk pays off, sometimes it doesn’t. Whenever Government workers argue that their pay should be commensurate with private industry, they ignore risk versus reward. They want the rewards without shouldering risk.

In today’s Alberta economy, where many are struggling to make ends-meet, the calculus of risk versus reward suggests that the whinging of Government lawyers earning first-world salaries is highly insensitive to the economic cloud presently hanging over this Province. Perhaps 2019 is not the best year for Government lawyers to sell Albertans the rusted-old jalopy of “woe is me”, for there are many who are actually struggling, not just peevishly complaining. 

The message I have for all of the Government lawyers complaining about their lot in life in today’s Alberta economy is, if you think the grass is greener on this side, by all means take the risk and join us. If you think being a criminal lawyer in Alberta is so lucrative, why aren't you doing it?Pay for your office, your desk, your stapler, your assistant, your telephone, your accountant, your bookkeeper, your retirement savings and become a real, pure taxpaying citizen.  Roll-up your sleeves and take the risk. Otherwise, stop your whinging.

BAFFLING COMMENT

Mr. Rogers says that he “wouldn’t recommend the job to a colleague”. Having regard to the factual vacuum in which the complaints are made, my experience working in criminal justice for nearly two-decades, my understanding of Alberta’s present economic circumstances and real concern that the Province’s economic vitality and viability may continue to decline, I find Mr. Rogers’ comment to be both insensitive and baffling.  

The comment is baffling because in an article where the whingers argue they need more manpower, Mr. Rogers effectively says, “I can’t recommend you work here”. The comment is insensitive because there are many Albertans struggling to keep their job or to find jobs. 

According to the article, Alberta Justice is allegedly trying to fill 25 vacancies and is looking to hire an additional 50 lawyers.  Now I don’t profess to be the smartest fella, but wouldn’t an additional 75 lawyers ease the workload on poor grinders like Mr. Sopkow?  Wouldn’t each additional hire improve the so called terrible working conditions and possibly free-up those precious weekends?  

What is therefore striking about Mr. Rogers’ whinging is that it’s actually antagonistic to the very problem he is whinging to solve. Crown's labour in poor working conditions caused in large measure because of a lack of manpower, yet he won’t leave the job and wouldn’t recommend it to another. 

Sucking and blowing? You decide. Whinging for the sake of whinging? You decide.

I mean, if Mr. Rogers was being honest, wouldn’t he say: “we have some challenges right now, but those challenges will be significantly attenuated once we fill the vacancies and hire the additional 50 Crowns promised by the Justice Minister. Things will get better”. 

Somebody needs to ask the question: if things are so bad and you are so hard-done-by, then why stay? I think we all know the true answer to this question and it's not likely "I dream of public service".

CONCLUSION 

Suffice it to say, I have concerns about the veracity of this CBC report.  As I read the article from start to finish, one thing is certain, aside from the anecdotal whining, there is little or no evidence underpinning most of the claims made by either complainant. To give the Alberta Crown Attorney’s Association some credibility, it is my opinion that the CBC owes its readers a basic level of competent investigative reporting. The Crown Attorney’s Association also owes us some real facts. Unfortunately, this article virtually contains none of this.  In the opinion of this Calgary criminal lawyer, the CBC must be more than a megaphone for whingers. In campaigning for more, Government lawyers need to be more sensitive to the economic realities currently at play in this Province.  Finally, they must offer a background of real, unbiased information to support their request for more, not simply an invective of apparently exaggerated complaints devoid of meaningful facts or evidence.

As this is the third virtually fact-less article published by the CBC acting as a biased, one-sided megaphone for whingers, I encourage a news agency other than the CBC to do some real investigative reporting on the actual state of Prosecution services in Alberta. Perhaps then astute readers can decide if the service is truly – as it whinges – in real crisis. 

David Chow is a criminal defence lawyer in Calgary. He is a former Calgary crown prosecutor who joined the Calgary criminal bar in 2005. David is a full service Alberta criminal lawyer and one of a handful of Calgary criminal lawyers experienced to handle complex drug prosecutions. Call for a free telephone consultation.