Legal Aid Program Evaluation

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2. Profile of the Legal Aid Program

2.1. Overview

The federal involvement in legal aid is through the Legal Aid Program, which provides contribution funding for legal aid to the provinces and territories through funding agreements. The federal government is not responsible for the delivery of legal aid, which is provided by the provinces and territories through their legal aid plans.

Through the criminal legal aid contribution agreements, the federal government contributes funding to the provinces for criminal and youth criminal justice legal aid. Since 2001, it has been providing interim funding to the six provinces that provide I&R legal services (British Columbia, Alberta, Manitoba, Ontario, Quebec and Newfoundland and Labrador). Federal contributions to the territories for access to justice services (which include criminal and civil legal aid, Indigenous courtwork, and Public Legal Education and Information [PLEI] services) are provided through the integrated Access to Justice Services Agreements (AJAs).

The Program’s objectives are:

• to promote access to justice and protect rights under the Canadian Charter of Rights and Freedoms (the Charter) by contributing to the delivery of criminal legal aid for economically disadvantaged persons facing the likelihood of incarceration, and for youth pursuant to the Youth Criminal Justice Act (YCJA), and by contributing to the delivery of I&R legal aid for economically disadvantaged immigrants and refugees;
• to promote access to justice by enabling provinces and territories to manage COCFP cases;
• to promote access to justice by enabling provinces and territories to provide legal aid to economically disadvantaged accused in PSAT cases; and
• to promote public confidence in the criminal justice system.

To support these objectives, which focus on promoting access to justice and, thereby, building public confidence in the criminal justice system, the Program has identified three core outcomes, which apply to each of its components:

• enhanced capacity of provinces and territories and their legal aid plans to deliver legal aid in the areas receiving federal funding (immediate outcome);
• effective provision of legal aid to eligible persons in the areas receiving federal funding (intermediate outcome); and
• a Canada-wide justice system that is efficient, fair, relevant and accessible, and that promotes public confidence in the justice system (ultimate outcome).

Achievement of these outcomes would demonstrate the fulfillment of the Program’s objectives. Access to justice is promoted by the federal government’s legal aid funding contribution, which helps support provinces and territories and their legal aid plans’ capacity to deliver legal aid and further supports the effective provision of legal aid in the areas receiving federal funding. Achievement of the immediate and intermediate outcomes will support the ultimate outcome of an efficient, fair, relevant and accessible justice system. A detailed description of the Program’s logic model is included in Appendix A.

2.2. Program Components

2.2.1. Funding for criminal legal aid in the provinces and criminal and civil legal aid in the territories

The federal government contributes funding to the provinces and territories for criminal and youth criminal justice legal aid for economically disadvantaged people accused of serious and/or complex criminal offences and facing the likelihood of incarceration, and to youths charged under the YCJA. The federal government also contributes funding for civil legal aid in the territories, based on the eligibility criteria established by the territories. ^{Footnote 4}

Federal contributions to the provinces for the costs of providing criminal and youth criminal justice legal aid services are managed by the LAD through contribution agreements respecting criminal and youth criminal justice legal aid. ^{Footnote 5} These contributions are drawn from two funding envelopes. Funding for each jurisdiction from the first envelope is determined based on historical funding and population. The second envelope is calculated as a function of the number of rural communities, the Indigenous population, the number of persons charged with Criminal Code and Controlled Drugs and Substances Act offences, and provincial contributions to legal aid costs. Under the terms of the contribution agreements with the provinces, the federal funding for criminal legal aid for both adults and youth cannot exceed 70% of the province’s total eligible expenditures. In addition, to encourage the maintenance of provincial funding levels and to receive their full portion of funding under the second envelope, the provinces must maintain their 2005-06 eligible expenditure levels.

Federal contributions to the territories are managed by the PID through the AJAs, which integrate federal funding support for legal aid (criminal, youth criminal justice, and civil), the Indigenous courtwork program, and PLEI services through a single agreement with each territory. In keeping with the integrated nature of the AJAs — provided the minimum levels of service have been met — the territories have the flexibility to re-allocate federal contributions for access to justice services in order to provide financial support for legal aid (in criminal, youth criminal justice, and civil matters), Indigenous courtwork, and PLEI services. The federal contribution to a territory for access to justice services shall not exceed 70% of the territory’s combined annual total eligible expenditures (legal aid, Indigenous courtwork, and PLEI).

2.2.2. Immigration and refugee legal aid

Since 2001, the LAD has been managing contributions for I&R legal aid funding to six provinces (Alberta, Quebec, Manitoba, British Columbia, Ontario, and Newfoundland and Labrador) that provide I&R legal aid services. ^{Footnote 6} I&R legal aid assists individuals involved in the I&R determination system by providing legal representation at hearings, explaining processes, assisting with document preparation, and addressing the unique circumstances, such as the need for an interpreter.

The federal contributions to the provinces for costs in providing I&R legal aid services are managed by the LAD through the contribution agreements that cover I&R legal aid, as well as criminal legal aid for adults and youth (see Section 2.2.1). The level of I&R legal aid funding allocated to each jurisdiction is calculated annually based on statistics received from the Immigration and Refugee Board of Canada (IRB), Immigration, Refugees and Citizenship Canada (IRCC), and the Federal Court for 10 variables, which reflect processes in the I&R determination system identified by the PWG as legal aid cost drivers. ^{Footnote 7} I&R legal aid funding is allocated based upon a jurisdiction’s share of demand for these services (i.e. the variables) in the preceding fiscal year, with each variable weighted according to the amount of work generally required by legal aid plans. Participating jurisdictions report on the number of I&R legal aid certificates/referrals issued each year according to the 10 variables and their related annual I&R legal aid expenditures, as part of their annual reporting to the LAD through their final claim submission.

2.2.3. Court-Ordered Counsel in Federal Prosecutions

COCFP relates to instances where a court orders the Attorney General of Canada to provide funded defence counsel. This is pursuant to Sections 7 (right to life, liberty and security of the person) and 11(d) (right to a fair trial) of the Charter, which have been held by the courts to mean that an indigent person has a right to counsel in cases where the criminal charge is serious, involves complex legal issues, and there is a likelihood of incarceration upon conviction. Where counsel is necessary to ensure a fair trial, a stay of proceedings will be entered until the appropriate authority provides counsel for the accused at its own expense (R. v. Rowbotham, 1988). The majority of COCFP matters relate to Controlled Drugs and Substances Act prosecutions.

Since the federal Crown is the prosecuting authority in these matters, the court order is against the federal Crown, and the cost of providing funded defence counsel is the responsibility of the federal government. Federal contributions for COCFP cover the totality of the legal service costs (fees and disbursements) of defence counsel, plus a 15% management fee to the provinces and territories or legal aid plans that agree to manage and administer these cases on behalf of the federal government. In instances where jurisdictions or their legal aid plans do not accept management of funded defence counsel for a COCFP case, the Program directly manages the provision of funded defence counsel.

2.2.4. Public Security and Anti-Terrorism

The federal government also provides contribution funding to jurisdictions or their legal aid plans, on a case-by-case basis, through separate contribution agreements for legal aid costs relating to PSAT cases (i.e. (i) charges laid under the Anti-terrorism Act (C-36) or other PSAT legislation enacted by Parliament; (ii) security certificates issued under the Immigration and Refugee Protection Act (IRPA); and (iii) proceedings under the Extradition Act where the requesting state alleges the commission of a terrorist act).

2.2.5. Federal-Provincial-Territorial Permanent Working Group on Legal Aid

As part of the 1996–2001 criminal legal aid agreements, the PWG was created as a forum for, among other things, joint policy development in matters of shared interest. The PWG comprises representatives from each provincial and territorial government and from the legal aid plans responsible for the delivery of legal aid services in each jurisdiction. The PWG is accountable for its activities to the FPT Deputy Ministers Responsible for Justice and Public Safety. Under the terms of the contribution agreements respecting legal aid, the PWG has a wide-ranging mandate that includes:

• serving as a resource on legal aid policies, programs and issues;
• providing advice on legal aid cost-sharing issues;
• advising of the potential impact of legislative or policy proposals on legal aid, legal aid clients, and disadvantaged persons generally;
• developing possible approaches and undertaking research to support the provision of legal aid;
• identifying ways to improve the quality, cost or delivery of legal aid by reforming areas of law, justice policy or legal aid itself;
• establishing working relationships at various levels to disseminate information and advice about matters under consideration by the PWG or about initiatives that would improve the quality or reduce the cost of legal aid; and
• involving non-governmental organization representatives in consultation on initiatives that involve or could affect legal aid.

2.2.6. Governance

Overall responsibility for the Program lies with the Department’s Programs Branch, where the LAD has overall responsibility for the delivery of the Program to the provinces. The LAD coordinates policy input into the Program, communicates with justice stakeholders and other departments about the Program, keeps abreast of issues that may affect the Program, and allocates resources to eligible recipients (provinces and legal aid plans). The PID is responsible for the AJAs with the territories. The LAD and a representative from the PID meet regularly to discuss legal aid program and policy issues, including risks. Information with regard to risk, including the likelihood of occurrence and potential impacts, is compiled to identify any existing or potential risks as well as mitigation measures.

2.3. Resources

Resources for the Program include $112.39 million annually in ongoing funding for criminal legal aid in the provinces and criminal and civil legal aid in the territories.

The other components have been renewed and/or have received additional resources:

• Budget 2012 extended temporary funding for I&R legal aid ($11.5 million), COCFP ($1.65 million), and a portion of the Program’s operating budget ($1.276 million) for two years (2012-13 and 2013-14).
• Budget 2014 confirmed the renewal of temporary funding for I&R legal aid at $11.5 million annually for another three years (2014-15 to 2016-17), and made funding for COCFP ($1.65 million) and the remainder of the Program’s operating budget ($1.276 million) permanent.
• Following the amendments to the IRPA, additional temporary funding of $500,000 annually for a three-year period starting in 2013-14 was provided for I&R legal aid to cover the expected increase in demand related to cessation/vacation applications.
• In addition to the ongoing $2 million annual funding for the provision of legal aid in PSAT cases, temporary dedicated funding was provided for IRPA Division 9 cases ($0.88 million from 2012-13 to 2014-15 and $0.5 million for 2015-16).

Under the terms of the five-year contribution agreement (2012-13 to 2016-17), the allocation of the federal contribution by province and territory for criminal legal aid for 2012-13 to 2015-16 is set out in Table 2 and Table 3. Funding allocations for 2016-17 are currently being negotiated.

Through Budget 2016, the federal government announced a funding increase for criminal legal aid in the provinces and criminal and civil legal aid in the territories of $88 million over five years starting in 2016-17. This amount includes a staged increase for criminal legal aid and $2 million annually to support innovations. Effective 2021-22, the federal government has committed to continuing the $30 million increase in criminal legal aid for an ongoing annual total of $142.4 million for criminal legal aid in the provinces and criminal and civil legal aid in the territories. Although the increased funding is outside the time period covered by this evaluation, the decision to increase the federal contribution is important context for the evaluation.

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