Evaluation of the Legal Aid Program

Appendix D: Case Studies

Case study: CKNÚCWENTN (“The place where help is given”) First Nations Court in Kamloops, British Columbia

Brief overview

The Cknúcwentn First Nations Court is a problem-solving or therapeutic court that considers the underlying factors and unique needs of individual offenders in order to provide a meaningful and appropriate response that will assist in rehabilitation. In its sentencing, the Court factors in cultural considerations as outlined in the Gladue decision and uses restorative justice principles. Participants in the Court include a judge, a dedicated Crown, a dedicated duty counsel, and Elders from the Aboriginal Community Justice Council.

To be eligible for the Cknúcwentn First Nations Court, the accused person must:

The Cknúcwentn First Nations Court meets once a month and handles sentencing hearings and reviews the progress of individuals whom the Court has previously sentenced.

The Legal Services Society (LSS) of British Columbia supports the Cknúcwentn First Nations Court by funding the duty counsel services and by supporting the Aboriginal Community Justice Council through offering training to Elders on the court process. The Court benefits from an Indigenous duty counsel, who brings his knowledge of the community to his work. The support of LSS in funding the duty counsel is considered to be critical to the success of the Court, according to its founder.

Effectiveness

Although the Court has not measured its success, based on the reports of key informants, it has achieved many of its objectives.

Impact on legal aid and justice system

The Cknúcwentn First Nations Court is an intensive process and requires more court time than the mainstream justice system does for each individual offender. As a result, the Court requires a greater commitment of both legal aid and justice system resources.

All stakeholders involved in the First Nations Court said they found their experience working in the Court to be uniquely fulfilling. For legal aid clients, the impact of the Court is found in the connection between the offender and the Court, which is not seen in mainstream court. The clients considered the Court to be accessible and were very satisfied with their experiences. They found the participation of Elders to be helpful. Both believed that the Cknúcwentn First Nations Court gave them more contact with their heritage and credited the Court with turning their lives around.

Case study: Immigration and refugee legal aid – Response of the Legal Services Society of British Columbia to the Ocean Lady and Sun Sea arrivals

Brief overview

Within less than one year of each other, the Ocean Lady and Sun Sea arrived off the coast of British Columbia. Each ship carried refugees from Sri Lanka, who claimed that they were fleeing the abuses of the Sri Lankan military that occurred in the aftermath of the decades-long civil war. The ships resulted in an unprecedented number of immigrants arriving at the same time and claiming refugee status (76 and 492, respectively). Footnote 41 The Government of Canada expressed concern that some passengers were human smugglers and/or terrorists, and detained the passengers in BC correctional facilities upon their arrival until their status was determined.

The Legal Services Society (LSS) of British Columbia provides immigration and refugee (I&R) duty counsel services, whereby counsel will provide legal advice to individuals being held in custody as a result of immigration proceedings, and will represent them at their initial detention hearings. LSS also provides I&R legal aid representation to financially qualified applicants whose matters have a reasonable chance of success. The challenges for LSS posed by the Ocean Lady and Sun Sea arrivals was the volume of immigrant/refugee claimants, the tight statutory timelines under the refugee determination system, and the strong government response.

Effectiveness

The primary innovation of the approach used by LSS was actively managing the situation, as opposed to the more typical approach of handling each client’s matter as it came to LSS. The approach also involved more coordination with other actors than typically occurs, to enable detention hearings and refugee claims to be addressed in an orderly and timely fashion.

Timely access to legal representation with well-resourced lawyers. LSS began providing services prior to the initial detention hearing. Timely access to legal aid services was considered critical, given the detentions and allegations of inadmissibility to Canada. LSS also undertook several steps to ensure that clients received comprehensive, high-quality legal services. In particular, LSS ensured continuity of service by creating individual paper files for each refugee claimant in which counsel noted activity in the file, so that any subsequent lawyer would know what had occurred. This approach allowed LSS to have more oversight over the work, use multiple lawyers as duty counsel, and schedule duty counsel by date rather than client.

In addition, LSS provided counsel with more supports, such as the assistance of researchers and access to shared information on legal memoranda, IRB decisions, and legal strategies. This enabled LSS to provide clients with a consistent level of service and helped counsel work more efficiently and effectively.

Provision of non-legal supports. LSS coordinated with immigrant-serving organizations so that individuals being released were connected with the organizations, which provided them with housing assistance and other necessities.

Culturally responsive services. LSS engaged Tamil interpreters, as well as two Tamil lawyers (one from BC and one from Ontario).

Ability to process cases. LSS, the IRB and relevant government agencies worked together to make the process as efficient as possible, given the circumstances. For example, all parties were given notice of which detainees were set for detention hearings the next day, which helped ensure that hearings occurred in a timely and orderly manner.

Access to justice. The provision of legal information, advice and representation by LSS-funded counsel afforded the immigrants access to justice. The importance of providing access to justice through legal aid representation is reflected in the most recently available statistics on the status of the Sun Sea passengers. According to IRB statistics, as of July 22, 2015, 238 Sun Sea passengers had received refugee status, which is 63% of claims finalized. Thirty passengers were found inadmissible and ordered deported under the Immigration and Refugee Protection Act. Of those, 11 were inadmissible because of connections to the Tamil Tigers. Footnote 42

Impact on legal aid and justice system

The most immediate result was the ability of LSS and other I&R stakeholders to manage the large influx of immigrants. Given the number of immigrants and the federal government concerns related to their admissibility, the I&R system could easily have become overloaded, compromising the ability of LSS to provide comprehensive legal services, and the ability of the I&R system to process cases according to statutory timelines.

The existence of I&R duty counsel also has an impact on correctional system resources. Duty counsel can contact sureties as well as identify relatives or locate other places where the detainee can reside, which is necessary for an individual to be released from detention. If duty counsel can reduce the time in detention for individuals, that reduces the costs to the system. Footnote 43

Case study: Drug Treatment Courts (Calgary and Edmonton)

Brief overview

Drug Treatment Courts (DTCs) are provincial courts that provide an alternative to incarceration by offering an offender the opportunity to participate in a court-monitored, community-based drug treatment process. They target adult, non-violent offenders who have been charged under the Controlled Drugs and Substances Act or the Criminal Code in cases where their drug addiction was a factor in the offence. Rather than incarceration, DTC participants receive a non-custodial sentence upon the completion of treatment.

Currently, there are two DTCs in Alberta: the Edmonton Drug Treatment Court Service Footnote 44 was founded in 2005, and the Calgary Drug Treatment Court Service was founded in 2007.

Legal Aid Alberta provides duty counsel service to the DTCs through its Criminal Resolution Offices in Edmonton and Calgary. These duties are shared by four Legal Aid Alberta staff lawyers (two in each location) who provide duty counsel services on a daily basis throughout the week. Although most individuals have their own legal aid lawyer before entering the DTC program, once in the program the participants are considered clients of the duty counsel. The duty counsel help guide participants through the process and — as part of the DTC team — monitor participants’ progress on a weekly basis and participate in meetings on policies or changes to the program. According to key informants, continuity of services plays an important role in duty counsel gaining the trust of DTC participants. Therefore, duty counsel at each location work as a team, keeping each other informed about participants’ status, so either lawyer is able to effectively assist the participants at their next appearance. Key informants also noted that Edmonton duty counsel mainly operate out of the courthouse, while Calgary duty counsel also offer to meet with participants on weekends.

Effectiveness

Key informants reported that the DTCs have been effective in achieving their objectives and expected outcomes. They noted that the rate of recidivism among program graduates is low, with the majority not having any convictions post-graduation. Additionally, key informants indicated that participants must find stable housing, be gainfully employed or be in school to graduate from the program. This ensures that graduates can be reintegrated into the community and become contributing members to society.

Key informants indicated that several graduates have stayed connected with the program by supporting current DTC clients through alumni programming, whereby graduates act as role models, mentors and supporters to clients who are beginning the treatment program.

Evidence gathered from the Calgary Drug Treatment Court Service documents suggests that the program has resulted in a number of positive outcomes for participants and society as a whole. An evaluation of this Drug Treatment Court found that its graduates had stable housing upon graduation, and over half were employed over the course of the program. In addition, over a third of participants never relapsed while in the program, and almost 60% experienced periods of sobriety of six months or longer.

Both the Calgary and Edmonton Drug Treatment Court Services have had studies to review the pre- and post-convictions of graduates. Those studies showed that approximately two-thirds of graduates had not incurred any convictions post-graduation.

Impact on legal aid and the justice system

Key informants interviewed as part of this case study indicated that the presence of DTCs results in efficiencies for legal aid services, mainly through a reduction in the costs associated with providing legal assistance. DTC clients are at a high risk of reoffending and would recurrently use legal aid services. If participants are successful in the DTC, key informants noted that the program contributes to a reduction in recidivism, and ultimately results in a reduction in the costs associated with providing legal aid. Also, key informants indicated that the DTCs’ current model, which includes two duty counsel assigned to each DTC who represent all clients in the program, is an efficient delivery model.

Findings from the review of program documents and key informant interviews suggest that the DTC program contributes to a reduction in costs across multiple areas, including jail costs; the cost of property stolen to support addiction; the cost and time required for police investigations; costs related to the treatment of mental and behavioral disorders resulting from addiction; child services costs; hospital and health care costs; community services costs; shelter costs; and employment-related benefits, such as taxes, turnover, and the use of income support.

Case study: Legal Aid Alberta’s Youth Criminal Defence Office

Brief overview

With offices in Calgary and Edmonton, the Youth Criminal Defence Office (YCDO) provides holistic criminal defence services for youth facing criminal charges under the Youth Criminal Justice Act. The YCDO provides legal services and youth worker advocacy to youth inside and outside the youth court justice system. The YCDO team includes lawyers, youth workers, and administrative staff.

The Office offers a range of legal services, including the following:

Youth advocacy services are also provided by the YCDO. Specifically, youth workers will support youth through the following actions:

Youth workers can also assist youth with finding housing, accessing treatment, education or work programs, and obtaining counselling. Their role is to work with the youth to address issues underlying their criminal behavior, in order to assist them with their rehabilitation.

According to program documents, the YCDO provided full representation through certificates to 1,900 clients in 2015, in addition to approximately 4,800 duty counsel assists and 3,000 Brydges calls and advice services.

Effectiveness

The YCDO is considered to be effective and efficient in representing youth in conflict with the law. By representing and supporting youth in a holistic manner, the Office assists them in changing their lives by addressing the root causes and issues of their criminal behavior. The YCDO is able to provide additional support services to its clients by incorporating social and youth workers.

The YCDO is also a centre of expertise in youth criminal law. One of the objectives of the YCDO was to provide an alternative to the tariff lawyer model by introducing the staff lawyer model. This allowed the YCDO to develop expertise in the area of youth criminal law.

Impact on legal aid and the justice system

Impact on legal aid and the justice system The perception among stakeholders is that there has been a significant reduction in the number of youth incarcerations in Alberta in recent years, partly as a result of the work and activities of the YCDO.

Case study: Lean initiative – Saskatchewan

Brief overview

Lean is a management philosophy that focusses on process improvements that will create more value while using fewer resources. A Lean event was held in May 2015 in Saskatoon, Saskatchewan, to discuss ways to improve the efficiency of the custody docket court process and to reduce the number of individuals being held at the remand centre. The Lean event brought all of the parties involved in the custody docket court process together for a week (five days) of meetings to get an understanding of the entire process and to determine efficiencies that could be applied to the process. The main objective/outcome of the Lean initiative is to increase the efficiency of the custody docket court process from start to finish by reducing the average number of in-court appearances and the time to determine remand/release, creating better use of court time, and increasing the number of files that can be effectively dealt with.

A total of 30 ideas and possible solutions came forward out of the Lean event, as noted in the continuous improvement plan document. The following are some of the main ideas and solutions that came out of the event:

Effectiveness

Increased use of video court appearances, the early resolution process, and the reorganized court schedule (including the earlier start time) have been fully implemented and have resulted in efficiencies for the custody docket court process. In particular, based on reports by stakeholders, the number of in-court appearances has been reduced, the time to determine remand/release has been reduced, and court time has been better used.

A few of the Lean solutions were not fully implemented. When the Crown and legal aid lawyer have been able to align their schedules and adhere to the same lawyers appearing on alternating days, efficiencies are achieved for the courts and the clients. The alignment of schedules has not always been possible, due to limited legal aid resources. Similarly, the Sunday review of weekend remand files showed early signs of success, according to key informants, but could not be continued due to resource issues.

Impact on legal aid and the justice system

According to key informants, the initiatives that have been implemented since the Lean event have led to time and cost savings for all parties involved in the custody docket court process. The use of video court appearances, increased early resolutions, the revised court schedule, and the alignment of Crown prosecutor and legal aid counsel schedules when possible has resulted in the more efficient handling of files and less required court time overall.

The initiative also has an impact on legal aid clients. Remand times are usually a few days on average, but any time in remand can have negative impacts on accused persons, including the loss of their jobs or housing. Key informants believe that the changes resulting from the Lean initiative have increased the efficiency of the custody docket court process, helping people get released more quickly.

Case study: Legal Aid Ontario’s Mental Health Strategy and expansion of coverage to first-time accused who are senior citizens

Case study: Legal Aid Ontario’s Mental Health Strategy and expansion of coverage to first-time accused who are senior citizens

Brief overview

In March 2016 Legal Aid Ontario (LAO) released its Mental Health Strategy, which demonstrates the organization’s “long-term commitment to prioritizing, expanding, and sustaining mental health rights and advocacy within Ontario’s legal system”. Footnote 46 The Mental Health Strategy covers many issues, but one issue is the increasing number of seniors entering the criminal justice system. Examples of how senior citizens become involved with the criminal justice system include charges related to assault or sexual assault on another resident or staff in a care facility or assault on a spouse. This criminal activity can be due to medical issues such as dementia, Alzheimer’s disease, or even reactions to medications.

Senior citizens may not qualify for legal aid, as their modest incomes may still be above the financial eligibility guidelines and/or as first-time offenders, they may be facing relatively minor charges. However, these accused may still face serious consequences as a result of these charges, including loss of a range of benefits they receive, such as housing (e.g., in long-term care facilities), disability or other income support, or other social services. As part of the Mental Health Strategy, LAO has expanded its coverage for full legal aid representation to first-time accused for seniors who have mental health and/or addictions issues. In addition, LAO has expanded its financial coverage; therefore, more seniors who would not have qualified financially for legal aid in the past are potentially eligible. Footnote 47

Effectiveness

The objectives for this initiative are to provide legal representation to financially eligible seniors with mental health and/or addiction issues and who are facing a potential first-time criminal charge, and to thereby increase access to justice for these clients. The provision of legal representation through the expanded coverage is expected to provide these seniors with lawyers who can not only provide them with legal services, but who can also advocate for them and provide alternative means of resolving the charges or maintaining their housing or other social supports. Furthermore, an independent legal advocate can also serve as a safeguard to ensure the practices and policies at long-term care facilities are in place to provide proper care to seniors.

LAO’s new policy was only implemented in June 2015, and therefore has not been operational long enough to make any measures of, or statements on, its success in achieving objectives and outcomes.

Impact on legal aid and justice system

Since the expanded coverage has only recently been implemented, the impact on the legal aid and justice system is not yet known. However, this expanded coverage is expected to bring about fewer self-represented litigants, which in turn is expected to lead to increased efficiencies in the justice system. Legal representation can also provide accused seniors with a greater opportunity for gaining bail and less likelihood of being placed in remand for long periods of time.

Further, the legal advocacy provided by the lawyers is expected to lead to better legal outcomes for the accused, improved interventions, and less severe secondary consequences from loss of housing, income, other social supports and the like. Such steps to prevent deterioration in the seniors’ living conditions are also expected to assist in reducing recidivism.

Case study: Montréal Mental Health Court
Programme d’accompagnement justice-santé mentale (PAJ-SM)

Brief overview

Established in May 2008, the Programme d’accompagnement justice-santé mentale (PAJ-SM) provides an alternative to the mainstream court system for individuals who demonstrate signs of mental health problems and are facing minor criminal or penal charges before the Montréal Municipal Court, which is one of the municipal courts in Quebec that has jurisdiction over such offences. Individuals who elect to participate in the program are assessed psychologically in order to determine their level of dangerousness, among other things. As required, they are directed toward clinical resources and other applicable social services. These individuals also receive support during their hearings. Although each case is processed on its own merits, participants who successfully complete the program may see their charges withdrawn under conditions, as applicable.

The program involves a multidisciplinary team that includes Crown attorneys, one legal aid counsel, municipal court judges, a doctor, a criminologist, probation officers, and liaison officers. The multidisciplinary team, with the exception of municipal court judges, meets daily to review pending cases and to determine appropriate courses of action. Hearings are held every afternoon.

Even though other regions of the province are considering the implementation of such a program, the PAJ-SM, remains the only fully operational in Quebec.

Effectiveness

Ability to process cases: There are no official statistics on the number of cases heard through the PAJ-SM; however, stakeholders estimate that approximately 600 cases are dealt with on a yearly basis. As it relates more specifically the cases funded by the Centre communautaire juridique de Montréal, the most recent statistics indicate that the Centre approved 498 applications in 2014-15 and 405 applications in 2015-16.One of the key characteristics of the initiative is to ensure prompt follow-up once a charge has been laid. At this point, the program has proven capable of delivering this level of service.

Reduction in the number of individuals incarcerated: One of the primary goals of the initiative is to avoid the incarceration of individuals. At this point, according to stakeholders, practically all individuals who participate in the program are avoiding incarceration. Typically, charges are withdrawn or alternative measures, such as community work, are implemented.

Reducing recidivism: The other primary objective of the initiative is to provide assistance to participants in order to avoid repetitive offences, which often occur among offenders facing mental health problems. Again, although there are no official statistics, stakeholders indicated that very few individuals return to the court to face new charges once they have successfully completed the program.

Better alignment of services: Through ongoing communication, information sharing, and the work of liaison officers, the various stakeholders involved in providing services to individuals with mental health problems are capable of better aligning their interventions. Now that the initiative has been operating for some time, stakeholders pointed to a high level of coordination among all key stakeholders, including hospitals and healthcare community centres.

Impact on legal aid and the justice system

As a result of this initiative, the Centre communautaire juridique de Montréal has been enhancing its capacity to deal with clients suffering from mental health problems. The Centre assigned a full-time lawyer to the PAJ-SM. Having a legal counsel dedicated to the program has allowed other legal aid counsel to redirect clients who were showing signs of mental health problems in order for them to receive appropriate support. The efficiency gained by legal aid includes its enhanced ability to effectively deal with clients who are showing signs of mental health problems, in addition to reducing recidivism among program participants.

The justice system is gaining efficiency by addressing the root causes of criminal behaviors that typically lead individuals to commit ongoing offences. By better aligning social and health resources that may be challenging to access for program participants, the initiative is limiting the number of direct resources required by the justice system to deal with what are typically minor offences. This is also demonstrated by the fact that an increasing number of justice stakeholders are now aware of what the program can do and will more readily recommend participation in the program for those who appear to be having mental health issues. This is seen among police officers, other Crown prosecutors and defence counsel.

Case study: Nova Scotia Legal Aid’s expanded duty counsel

Brief overview

Nova Scotia Legal Aid’s expanded duty counsel (EDC) program began as a service available for accused persons in custody (cells duty counsel) and evolved to include non-custodial duty counsel available to everyone appearing in court unrepresented.

EDC lawyers are assigned to the same courthouse on a continuous basis so they are able to see the same client on more than one appearance. The duty counsel lawyer is able to work with the client at the early stages of the court process without an application for legal aid and the assignment of staff counsel or a private bar lawyer on a certificate. The services provided by the EDC are complementary to the more in-depth full representation service available to accused persons who are eligible — among other things, the EDC is meant to resolve cases before full representation is required and to facilitate the application process. In addition, for matters that do not achieve early resolution, the EDC will move the matter forward by accomplishing major steps such as bail applications, disclosure motions, applications for full service, and referrals to community resources.

Additionally, EDC services include courtworkers who assist with explaining processes and applying for full representation legal aid and other support services available in the community.

EDC services are available in all Provincial Court locations in Nova Scotia. The courthouses in Halifax, Dartmouth and Sydney have dedicated duty counsel available and rural areas (e.g., Bridgewater) have lawyers who are available for duty counsel on top of their criminal and family trial caseloads.

This case study addresses the non-custodial duty counsel component of the EDC program, which is the more recent development. Non-custodial EDC has been offered across the province for approximately three to four years and in Halifax Provincial Court for over six years.

Effectiveness

Access to justice: The EDC provides legal advice and assistance at arraignment court to all unrepresented accused persons. As a result, legal aid services are expanded to accused persons who do not meet the financial eligibility requirements, but also do not have the financial means to hire a lawyer. Documents indicate that between 2012-13 and 2014-15, between 24% and 32% of the clients who received non-custodial duty counsel services would likely not have qualified for full service legal aid. Accused persons who appear in court because they are unable or do not want to hire a lawyer frequently experience diminished access to justice given their lack of familiarity with the complexities of the legal system.

Fewer unrepresented accused persons: The evidence from the documentation and key informant interviews indicates that the EDC program has been able to provide duty counsel services to all unrepresented accused persons who want representation in arraignment court.

Impact on legal aid and justice system

Key informants described the EDC program as creating efficiencies in the justice system. The EDC significantly limits the number of unrepresented accused persons navigating the court system. Key informants explained that self-represented accused persons slow down the court process in a number of ways and create additional burden for judges and the prosecution. In addition, since the lawyers who provide EDC services are dedicated to that service, they further create efficiencies by building effective working relationships with Crown attorneys and judges, which creates an environment of communication between all parties. For example, quick adjournments (e.g., to the next day) are common.

The EDC program also reduces the number of appearances made by an accused person while they apply for a legal aid lawyer. Specifically, the EDC courtworker will begin the legal aid application process and reduce the burden on the accused person for self-initiated follow-up. Key informants explained that prior to the introduction of the EDC program, the volume of unrepresented accused persons would cause arraignment sessions to exceed the scheduled time, more accused would appear multiple times, and more cases would go to trial. Key informants also reported that duty counsel will attempt to consolidate an accused’s matters so they can be dealt with concurrently, which frees up dates for other court cases.

Similar to the efficiencies created for the justice system, Nova Scotia Legal Aid is able to more effectively use resources by providing EDC to accused persons who are appearing in court for the first time, which decreases the demand for full service legal aid. EDC achieves the following benefits for legal aid and its clients:

Based on internal evaluations of the EDC program, both legal aid and the justice system are able to achieve efficiencies through significant early stage service and early resolutions that reduce the burden individual accused persons have on available resources.

Case study: Legal Services Board of Nunavut – Linear file assignment

Brief overview

Implemented in mid-2011, linear file assignment (LFA) is a case management strategy for criminal law files that aims to keep the same lawyer with the same client as much as possible, from the beginning to the end of a case. This is done primarily to improve the lawyer-client relationship, but also to improve case efficiencies. LFA is part of an overall process the Legal Services Board (LSB) has undertaken to centralize and improve the coordination of legal aid cases in Nunavut. Footnote 48

The LFA process begins with the legal aid clinic’s lead lawyer assessing each legal aid file and assigning the file to a lawyer. Each file is assessed to determine the likelihood of resolution and potential conflicts of interest. If the file is likely to resolve, the lead lawyer decides whether the file should be assigned to an in-house lawyer immediately or whether it should be assigned to one of LSB’s panel lawyers. Footnote 49 If the matter is likely to go to trial, the file is assigned Footnote 50 to a suitably experienced staff lawyer. Typically, junior lawyers are assigned summary matters, while senior lawyers are assigned more complex cases (such as homicide and sexual assault) or cases that involve lawyer-specific expertise (such as Charter issues). If the matter involves a number of other accused, those persons are assigned lawyers from other legal aid clinics or will be assigned to the circuit court’s panel lawyer.

In circumstances where lawyer continuity is not possible or practical due to conflicting court schedules, vacations or sick leave, the file is reassigned to another lawyer, who is informed of the case history and the next steps to be taken in the matter.

Effectiveness

Improved client-lawyer relationship

The LSB intends that greater continuity in legal representation will lead to an improved relationship between client and counsel. A key feature of this improved relationship is the development of clients’ trust in their legal aid lawyers and the justice system, which is considered to make it more likely for clients to provide their lawyers with the information needed to prepare for an appearance and, more generally, to more actively participate in their defence. Having a better client-lawyer relationship is also purported to benefit the lawyer by improving their sense of file ownership, which can lead to improved morale among staff lawyers, and a greater interest in their clients’ desire to have their matters dealt with in an expedient manner.

Although LSB has not yet implemented a survey to assess client satisfaction with client-lawyer relationships and how this might relate to continuity of counsel, anecdotally, there are examples of clients demonstrating an improved relationship with their legal aid lawyers, ranging from clients knowing their lawyers by name to clients making specific requests for their legal aid lawyers in times of legal need or crisis.

LSB lawyers confirmed having a sense of file ownership and reported that having the same client each time can lead to a better client-lawyer relationship through improved trust, and to the lawyers learning how to communicate effectively with their clients — some of whom have cognitive difficulties or particularly challenging personalities. Having the same lawyer each time is considered to be a more respectful approach to client relations because it saves the clients from having to retell their story, which can be a deeply painful experience for them. That said, many individual-level factors feed into the client-lawyer relationships, so even under LFA these relationships can still vary by case.

Impact on legal aid and the justice system

LFA is intended to improve the cost effectiveness of legal aid and introduce efficiencies to the court process.

Legal aid cost effectiveness

LFA is intended to allow the LSB to use its resources more cost effectively. Ideally, a single lawyer is assigned a file and, by taking ownership of the file, is more prepared for court appearances, minimizing the number of appearances, and thus reducing the cost of legal representation.

Court efficiencies

LFA is intended to contribute to justice system efficiencies by reducing the number of appearances and unnecessary adjournments, and ensuring files move through court in a reasonable amount of time. This stems from clients having more trust in their lawyers and being more likely to provide them with the information needed to properly prepare for court appearances. Additionally, lawyers have a greater sense of ownership of their files, which helps ensure counsel have taken the necessary steps to prepare for their appearances and are focused on minimizing the number of appearances and the potential for adjournment.

Enhanced credibility of LSB and the justice system

As a result of the improved relationship with legal aid lawyers and less time spent waiting for their cases to be handled by the justice system, clients are more likely to have greater confidence in LSB’s legal services and the justice system overall.

Case study: Presumed eligibility in Northwest Territories and Nunavut

Brief overview

Experience has shown that many accused individuals in Northwest Territories and Nunavut experience challenges or barriers in applying for legal aid. Some struggle with obtaining needed documentation to show their financial eligibility for legal aid, and others live in small remote locations without easy access to a legal aid office. Others are experiencing mental health or addictions issues, which also pose comprehension barriers. As well, many of the accused face language and/or cultural barriers in understanding the Canadian justice system and the legal aid application process. Presumed eligibility avoids the necessity of making a legal aid application and provides accused with immediate access to a lawyer at their first appearance.

In Nunavut, individuals with criminal charges are presumed eligible for legal aid at court appearances up until the point of entering a not guilty plea. The Legal Aid Commission has duty counsel assigned at every point of entry; at every bail hearing or first appearance, accused persons have access to a lawyer to represent them. This access does not require any legal aid intake process or assessment of financial eligibility. If a client makes the decision to enter a not guilty plea, he is then required to apply for legal aid to determine his eligibility for ongoing legal representation. In Yellowknife, presumed eligibility also has lawyer continuity attached to a client. Once a duty counsel begins representing a client, that same lawyer will continue providing services up to the need for a legal aid application. Lawyer continuity is not possible in the communities outside Yellowknife that are served by circuit court, as different lawyers will rotate through the circuits.

According to the Legal Aid Commission’s 2014-15 annual report, the majority of services provided by legal aid on circuit court is through presumed eligibility. Footnote 51 A total of 3,308 adults and 247 youth were provided presumed eligibility services in 2014-15 for all of the Northwest Territories. Footnote 52 In comparison, the Commission received 586 criminal-related legal aid applications that same year, of which 508 (87%) were approved. Footnote 53

Presumed eligibility in Nunavut operates much the same as in the Northwest Territories. However, unlike in the Northwest Territories where presumed eligibility is only available for criminal matters, in Nunavut presumed eligibility also applies to all child applicants, child welfare matters where a child has been removed from his home, Footnote 54 plus the Legal Services Board (LSB) provides some presumed eligibility coverage for family and civil matters that are of a summary nature. The LSB’s most recent annual report cites that 2,848 criminal law files were opened in 2014-15; however, statistics on presumed eligibility are provided only for civil matters, with 346 presumed eligible summary matters. Footnote 55 Although statistics on presumed eligibility are not kept for criminal matters, the number of opened criminal law files is considered by LSB to reflect the volume of cases benefiting from presumed eligibility.

Effectiveness

Access to justice. Presumed eligibility has reduced the barriers to obtaining legal assistance. By avoiding the need to apply for legal aid, accused individuals obtain immediate access to a lawyer, who will immediately begin working in their interests at their first appearance. The immediate legal assistance provides clients with the opportunity to have a voice, to gain a greater understanding of their legal issue, to learn of their options, and to plan a strategy with their lawyer to manage their legal matter. Duty counsel on circuit court will often strive to contact clients in advance of their court date, either by telephone, by traveling to the circuit court a day in advance to meet with clients, or by meeting with clients earlier on the day of court. In addition, the duty counsel on circuit court are provided disclosure in advance, which further facilitates the process of providing advice and information to the client. The ability of duty counsel to speak with the client either beforehand or on the day of court is viewed as not only providing some assurance to clients, but also as assisting in dealing with matters more efficiently on the day of court and in moving matters along.

Early resolution. Many clients’ criminal matters are resolvable at the first appearance and, therefore, having access to duty counsel facilitates this resolution process for the client.

Reducing delays. The need to complete a legal aid application for legal assistance has created adjournments and delays in court while clients have tried to obtain the needed documents. The impact on clients is magnified when circuit court only comes to their community once every six weeks or more. As well, if the accused’s conditions include such requirements as no contact with family members, this can create burdens and stress upon the client as well as the remaining family unit in small remote communities with long gaps between court visits. Delays in an accused’s court process also can increase the likelihood they will breach their conditions and thereby face additional charges. Or, if a client is in custody, the need to apply for legal aid could lengthen his time in custody.

Impact on legal aid and justice system

Presumed eligibility reduces administrative burdens on the Legal Aid Commission and LSB. For example, most clients in the Northwest Territories are eligible for legal aid, making the requirement of applying for legal aid an unnecessary administrative process. In addition, many matters are resolved through a guilty plea, so the administrative cost of the application process is avoided in many cases.

Presumed eligibility is viewed as reducing court delays and adjournments, making more effective use of court time. Without the assistance provided by duty counsel through presumed eligibility, the court system would be significantly backed up. Furthermore, such delays would have a snowball effect, with delays in court at one location on the circuit affecting subsequent locations and/or requiring additional circuit visits and more justice system resources to make up the time.

The increased level of service that duty counsel are able to provide clients through presumed eligibility can also benefit other justice service providers. For example, where duty counsel are able to speak to clients in advance of court and take instruction, the lawyer can then contact the Crown prosecution on matters that need discussion. Similarly, the Crown prosecution can contact duty counsel regarding their discussion points, all of which help service providers prepare in advance and make more effective use of their and the court’s time.

Furthermore, the reduced adjournments and delays can also reduce the number of court appearances required by complainants and victims of crime.