Evaluation of the Legal Aid Program

Executive Summary

1. Introduction

This document constitutes the final report for the evaluation of the Legal Aid Program (the Program). In accordance with the Treasury Board Secretariat’s 2009 Policy on Evaluation, the evaluation addresses both the relevance and the performance of the Program. The evaluation covers the period from 2012-13 to 2015-16.

2. Description of the Program

The Program manages the federal contribution to legal aid in Canada through its five components: 1) funding for adult and youth criminal legal aid services in the provinces and territories, and civil legal aid services in the territories; 2) funding for immigration and refugee (I&R) legal aid services; 3) funding for Court-Ordered Counsel in Federal Prosecutions (COCFP); 4) funding for legal aid services in Public Security and Anti-terrorism (PSAT) cases; and 5) secretariat and funding support for the Federal-Provincial-Territorial Permanent Working Group on Legal Aid (PWG), which is composed of representatives from provincial and territorial governments, legal aid plans, and federal Program officials. The Program’s objectives are to promote access to justice through the provision of legal aid funding in the component areas and to promote public confidence in the criminal justice system.

3. Methodology

In order to address the questions included in the evaluation matrix, the evaluation included the following methodological approaches: document, file, data, and literature review; key informant interviews; interviews with justice professionals; interviews with legal aid clients; and 10 case studies to highlight innovations or promising practices in the delivery of legal aid.

4. Findings

Relevance

The Program meets an ongoing need and is in the public interest

The evaluation evidence supports the continued need for the Program. Key informants unanimously believe that legal aid serves the public interest and need, citing Canada’s constitutional, statutory and international obligations to support access to justice and a fair legal process. Without legal aid, it is believed that the justice system would be brought into disrepute. Legal aid balances the power of the state by providing legal assistance to some of the most vulnerable populations of society and reduces the possibility of miscarriages of justice. In addition, when the laws or the operation of the criminal justice system disproportionately impact marginalized or vulnerable populations, legal aid plans may be involved in legal challenges to those laws and practices. Legal aid plans are also one of the main tools to bring the criminal defence perspective to discussions when justice system reforms are being considered.

Many key informants also noted that legal aid assists the criminal justice system by contributing to its efficiency. By providing representation, legal aid reduces the number of unrepresented accused who are considered to create delays, additional appearances, and other inefficiencies in the justice system. Legal aid plans’ budgets are limited and attempt to control costs, which benefits the justice system as they work to ensure that cases are handled as expeditiously and cost effectively as possible.

The Program aligns with federal priorities and departmental strategic outcomes

The Program’s objectives of promoting access to justice and public confidence in the justice system align with federal priorities and the Department of Justice Canada’s (the Department) strategic outcomes. Recent Speeches from the Throne emphasize the federal commitment to fundamental rights, such as fairness and the rule of law, which legal aid supports. The Program’s objectives also directly support the Department’s strategic outcome of “a fair, relevant and accessible Canadian justice system”. Through its contribution funding, the Program facilitates access to justice for economically disadvantaged individuals who are either facing a serious criminal charge, seeking a determination under the I&R system, or experiencing a civil law issue and reside in the territories.

The federal government has a necessary role in legal aid

The basis for the federal government’s role in legal aid is found in Canada’s foundational documents, key statutes that define Canadian federalism, and international commitments made by the Government of Canada. The federal responsibility to provide funding for criminal and I&R legal aid is based on constitutional and Canadian Charter of Rights and Freedoms obligations, while the responsibility for civil legal aid in the territories comes from the authority for civil law retained by the federal government under the territorial acts. The federal government has also made international commitments that address the right to a fair hearing, equal treatment under the law, and publicly funded counsel, particularly the United Nations’ International Covenant on Civil and Political Rights, which requires signatories to provide legal counsel to individuals facing criminal charges who cannot afford counsel. Canada’s support for I&R legal aid also flows from its international obligation based in the 1951 Convention Relating to the Status of Refugees, Article 16, which states that refugee claimants enjoy the same treatment as nationals in matters pertaining to access to the courts, including legal assistance.

Effectiveness

Assessing the effectiveness of the Program in achieving its outcomes needs to be considered in context. The Program is not directly involved in the delivery of legal aid; the provinces and territories, through their legal aid plans, are the delivery agents. Consequently, the evaluation of the federal Program is not intended to evaluate the legal aid plans, and yet the Program’s outcomes of enhancing capacity to deliver legal aid and effective provision of legal aid require a consideration of legal aid plan activities. The evaluation’s perspective on these activities is to demonstrate the types of activities being supported in part by federal funding. The immediate and intermediate outcomes are linked, as both consider the contribution of federal funding to the provision of legal aid: the immediate outcome looks at the federal funding’s role in enhancing capacity, and the intermediate outcome considers how the federal funding contributes to the effective provision of legal aid.

The 2012 Legal Aid Program evaluation noted that the Program would benefit from improved performance measures that are agreed to by the PWG and the Legal Aid Directorate (LAD) and that are consistently tracked. This remains an area for improvement for the Program. Although the current evaluation attempted to provide additional evidence of effectiveness through case studies and interviews with clients, the Program would benefit from outcomes that are more clearly defined and have performance measures that are being consistently recorded and tracked.

The Program contributes to increasing the capacity of provinces and territories and legal aid plans to provide and deliver legal aid in areas receiving federal funding

The federal funding contribution is intended to enhance the capacity of provinces and territories and their legal aid plans to deliver legal aid in the areas that receive federal funding. The total shareable expenditures for criminal legal aid in provinces and criminal and civil legal aid in the territories rose by approximately 5% between fiscal years 2010-11 and 2013-14. With the federal funding level remaining at $112.39 million during this time period, the federal contribution provided approximately 28% of the funds used to support the delivery of criminal legal aid in the provinces and criminal and civil legal aid in the territories. For I&R legal aid, the federal contribution accounts for between 32% and 38% of shareable expenditures.

The federal contribution is considered important to maintaining the current levels of services. If federal funding were withdrawn or substantially reduced, most key informants believe that access to justice would be adversely affected, as services would be cut or — in the case of I&R legal aid, where the legislation and enforcement are federally directed — some jurisdictions might discontinue offering I&R legal aid. The federal contribution to these legal aid areas has enabled plans to meet their current demand, as reflected in the proportion of approved legal aid applications. Although the number of applications is not a complete picture of the demand for legal aid, it is the only nationally available measure of demand.

The funding of COCFP is a federal responsibility. Consequently, the federal contribution does not enhance legal aid plans’ capacity as much as it fulfills the federal responsibility to fund the defences for these federal prosecutions where the court has ordered counsel in the interest of justice and a fair trial. If the totality of the expenses of providing court-ordered counsel were not covered by the Program, cases would be stayed. In the event that provinces and territories and their legal aid plans cease to manage cases on the federal government’s behalf, the federal government would be required to develop its own legal aid system to provide COCFP directly.

For PSAT, key informants emphasized the importance of federal funding. Defending one of these anti-terrorism cases, given their complexity, could consume a significant and disproportionate amount of a plan’s criminal legal aid budget and affect the plan’s ability to assist other clients who need legal aid services. By totally funding these cases, the federal government contributes to the capacity of legal aid plans by ensuring these cases do not adversely affect their ability to serve their other clients.

The PWG’s mandate includes activities that enhance the capacity of legal aid plans by negotiating cost-sharing agreements, serving as a resource to the Federal-Provincial-Territorial (FPT) Deputy Ministers Responsible for Justice and Public Safety on identified priority areas, and providing a forum for policy and legal discussions among its members on topics relevant to legal aid. In the last two evaluation cycles, the PWG is thought to have had a significant focus on reviewing the contribution agreements and funding formulae for legal aid, which has detracted from the time available to focus on its other priorities. As a result, the PWG’s mandate was not entirely fulfilled. The evaluation found that the Working Group is beginning to realign its focus toward facilitating discussion to other legal aid program and policy matters, such as performance measurement and information sharing. Key informants generally supported these new directions of the PWG. They offered other suggestions that they thought would help enhance the capacity of legal aid, including funding more research and exploring issues related to the impact of legislative changes on legal aid.

Federal funding contributes to the effective provision of legal aid to eligible persons in the areas receiving federal funding

The evaluation considered the extent to which the federal contribution supported effective provision of legal aid from a few dimensions.

The evaluation considered whether there is effective provision of legal aid in that low-income Canadians who cannot afford counsel have access to lawyers in the areas that receive federal funding. This goes beyond approving applications for legal aid and considers potential unmet need by measuring the difference between financial eligibility guidelines (FEGs) and economic measures such as the consumer price index (CPI), minimum wage, and the low income cut-offs (LICOs) over time. The evaluation found that the FEGs of some legal aid plans for which data are available have kept pace with various economic indicators since 2010, such as the CPI and the minimum wage, which is a more positive result than the 2012 evaluation of the Program. In addition, although most plans for which data are available have financial guidelines above the LICOs, meaning that Canadians living in poverty are eligible for legal aid, the differences between the FEGs and the LICOs have been reduced since 2010 for some plans. These findings provide a more positive picture related to the provision of legal aid compared to the 2012 evaluation.

In addition to the capacity of some plans to increase their FEGs, thereby expanding the population of clients they can serve and increasing access to legal aid, all plans have undertaken a variety of approaches to enhance access to justice and/or increase the efficiency of legal aid service delivery. By conducting case studies of best or promising practices, the evaluation gathered evidence of increasing accessibility to legal aid while controlling costs and/or contributing to justice system efficiencies through measures such as expanded duty counsel, presumed eligibility, participation in more holistic approaches with interdisciplinary teams (specialized legal aid offices, specialized courts), and services that result in earlier resolution, more continuity of service, and more streamlined approaches. The adoption of these innovations and promising practices to enhance the provision of legal aid services are, in part, supported by the federal contribution.

The effective provision of legal aid is also found in the impact of legal aid on addressing the access to justice needs of clients. Through interviews with justice professionals and clients, the evaluation found that legal aid clients are often not equipped to represent themselves due to the complexity of the justice system and their personal circumstances that make self-representation difficult (e.g., education levels, addictions, mental health issues, and past trauma). The potential effects for clients when they proceed without counsel are pleading guilty to charges when they might not otherwise do so, receiving harsher sentences, or for I&R legal aid clients, being deported back to their home country where they are at risk of persecution or torture.

Efficiency and economy

Economic delivery of the Program

The evaluation found that the Program expended its resources related to the contribution agreements largely as planned. Where there were variances (COCFP and PSAT cases), the results were expected, given the complex nature and the uncertainty about the number of new cases that will arise each fiscal year.

In terms of spending on program administration (salaries and operations and maintenance), the Program lapsed funds in some years. This was also the case even when the costs of COCFP cases managed by the LAD were taken into account. Footnote 1 It is important to note that there were a number of government-wide cost containment measures put in place during the years examined through this evaluation, including a Strategic and Operating Review, the Deficit Reduction Action Plan, travel caps, and budget and staffing freezes.

Efficiency of the Program

The delivery costs of the Program are equivalent to 0.8% of the federal funding contribution. This result is similar to the 2012 evaluation of the Program and other contribution programs of the Department. Based on this finding, the Program is seen to be operating efficiently.

The evaluation results also indicate that the resources used to achieve the Program’s outcomes are reasonable. The level of Program expenditures (administrative and contribution funding) remained at roughly $130 million during the period covered by the evaluation. During that time, legal aid plans were able to maintain their capacity to respond to demand while managing a challenging environment. As the evaluation findings show, the efficiency of legal aid service delivery is not solely within the control of legal aid plans. Many of the cost drivers that affect legal aid are created by external factors, such as policing practices, charging policies, changes in legislation, system reforms, rules of court, case complexity, and the efficiency of the justice system as a whole.

In response to upward cost pressures and the increasing complexity of cases, legal aid plans have undertaken a variety of approaches to improve the efficiency of their services and to maintain access to legal aid. The case studies provided examples of these promising practices, which have focused on increasing accessibility, more effectively addressing client needs that include multiple barriers and non-legal issues, adopting approaches to improve the efficiency of service delivery, and enhancing opportunities for early resolution. These promising practices have the dual purpose of increasing efficiencies and improving the effectiveness of service for clients.

A comparison of tariff levels in Ontario to private bar charges for similar services demonstrates that legal aid services are provided at much lower rates. This finding shows that the legal aid system is cost efficient from the perspective of legal fees.

Legal aid also contributes to efficiencies for the justice system, which benefits other stakeholders. As justice professionals pointed out, individuals who proceed without counsel require more resources of the justice system, as their cases are likely to result in more appearances, more adjournments, and more time to resolve the matter.