Evaluation of the Legal Aid Program

4. Findings

4.1. Relevance

The core issues concerning relevance consider the following:

the continued need for the Program;
the alignment of Program objectives with government and departmental priorities; and
the roles and responsibilities of the federal government to deliver the Program.

4.1.1. Continued need for the Program

The Program continues to serve the public interest and need as legal aid is considered central to maintaining the integrity of the justice system, ensuring its fairness, and providing access to justice for economically disadvantaged Canadians, including vulnerable populations.

Key informants fully believe that legal aid serves the public interest and provided a variety of reasons for their opinions. Some of the most common ones mirror what key informants said was the basis of the federal role and responsibility for legal aid; namely, the federal government has constitutional, statutory and international obligations to support access to justice and a fair legal process. The other key features of how the Program continues to serve the public interest and need are discussed below.

Maintaining the integrity of the Canadian system of justice. Almost all key informants mentioned the importance of legal aid to the criminal justice system. Without legal aid, they believe the Canadian criminal justice system will be brought into disrepute as miscarriages of justice are more likely when people proceed without counsel. Unrepresented accused persons typically do not know what their defenses might be or how to present their evidence. According to these key informants, legal aid creates balance between the power and resources of the state in pursuing criminal charges and the individual accused person. This is especially important given the profile of most legal aid clients who are poor, usually less educated, disproportionately Indigenous, and typically experiencing mental illnesses, substance abuse, childhood trauma, or other personal situations that impact their ability to respond to the criminal charges against them.

Supporting access to justice for a vulnerable or marginalized client population. Legal aid funds legal services for socioeconomically disadvantaged individuals who are experiencing legal issues in one or more of the areas covered by legal aid. Available data also demonstrate that individuals who come into contact with the criminal justice system are more likely than the general population to have barriers or vulnerabilities that make it difficult for them to navigate the justice system. For example, among individuals coming into contact with the police, those with mental health or substance use disorders are four times more likely to report being arrested (Statistics Canada, 2015a). A larger proportion of inmates in federal correctional facilities have mental health or substance use disorders than is found in the general population of Canada (Correctional Service of Canada, 2014). Indigenous people, who have experienced historical and ongoing trauma, are overrepresented in the criminal justice system. In 2014-15, Indigenous people represented 3% of the adult population of Canada, but comprised 25% of admissions into correctional facilities (Statistics Canada, 2016a).

According to the defence counsel interviewed, criminal legal aid clients often face multiple barriers, such as mental health issues, substance use disorders, fetal alcohol spectrum disorder, past trauma, low literacy or learning disabilities, socioeconomic challenges (homelessness, lack of personal supports, lack of child care), that make it more difficult for them to assist in their own cases, not to mention handle legal matters in court unassisted. For clients in the territories or remote areas of the provinces, the lack of social services to help address their non-legal issues is considered by defence counsel interviewed to exacerbate their criminal or family legal issues.

Key informants who addressed the public interest in the provision of I&R legal aid emphasized that immigrants and refugees, particularly the latter, are by definition highly vulnerable people. They may not speak the language or understand the culture and institutions of the Canadian justice system. Refugees are individuals who are seeking protection from persecution in their home countries. Key informants believe that the Canadian interest in fairness and accessibility to justice places the provision of I&R legal aid in the public interest.

Providing a check and balance on justice issues. Some PWG key informants representing legal aid plans pointed out that these plans are one of the main tools to bring the perspective and interests of clients to discussions of criminal laws and the administration of justice. They noted that the other stakeholders (e.g., court, Crown, police) bring their institutional perspectives to the discussion, which may not consider a criminal defence perspective. Legal aid plans can bring those concerns to discussions of broader justice system issues that may impact criminal defendants.

In addition, when the laws or the operation of the criminal justice system disproportionately impact marginalized or vulnerable populations, not only do legal aid plans feel the effect on the demand for their services as these groups constitute their client base, they may also be involved in legal challenges to these laws or practices. In situations where legislation is thought to disproportionately impact the vulnerable groups that legal aid serves or otherwise violate Charter rights, one of legal aid’s roles is to challenge the legislation. In this way, legal aid is serving the public interest by acting as a check on the power of the state when its clients, who would otherwise not have the resources to challenge the legislation, are affected.

Contributing to the efficiency of the justice system. Many key informants also noted that legal aid assists the criminal justice system by contributing to its efficiency. 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. Some key informants pointed to the “false economy” of reducing legal aid funding to save costs in the criminal justice system. There is a view that reducing legal aid simply redirects those cost “savings” to other parts of the system through wrongful convictions, overly harsh sentences, or longer time to resolve cases that add costs to correctional services or appeals.

Serving both client and broader social interests. Some PWG key informants representing legal aid plans also pointed to the client interest in avoiding the consequences of a criminal record. They noted the wide-ranging potential economic and social consequences to individuals who receive a criminal record, which can affect current and future employment, educational opportunities, the ability to receive housing assistance, and family stability, among other things. These key informants consider legal aid’s role in avoiding criminal records for accused persons who dispute the allegations against them, or whose activity does not justify a criminal record, to serve the public interest. Without a criminal record, these individuals can continue to become productive members of society, rather than enter what is sometimes called the “revolving door” of justice.

Reflecting core Canadian values. The 2012 Program evaluation reported on the most recent national public opinion survey on legal aid and access to justice. The survey results showed that Canadians strongly support access to justice, as over 90% said that it is very or somewhat important that people charged with a crime have legal representation. Over 80% of those surveyed reported feeling more confident in the justice system knowing that legal aid is available, and almost 80% of respondents supported public spending on legal aid (Department of Justice Canada, 2008).

Another national survey has not been conducted, but the enduring public support for legal aid is found in the results of a survey conducted in 2014 by the Legal Services Society of British Columbia. Over 90% of British Columbians supported legal aid services, once those services were explained to them, with 61% saying they strongly support legal aid. Moreover, just over 90% of respondents believe that criminal legal aid services are very or somewhat important to ensuring fairness in the justice system, and 82% of respondents believe that I&R legal aid services are very or somewhat important to ensuring fairness of the system. In addition, 86% of respondents believe in universal access to the justice system, and 80% believe that legal aid funding should be prioritized just like other social services, such as health care, education, welfare and child protection (Legal Services Society, 2014).

4.1.2. Alignment with federal government priorities and departmental strategic outcomes

Federal government priorities

Federal government statements (e.g., Speeches from the Throne and federal Budgets) demonstrate that the Program aligns with government policy priorities. Recent Speeches from the Throne emphasize the federal commitment to fundamental rights, such as fairness and the rule of law, which legal aid supports as discussed in Section 4.1.3.

In the 2015 Speech from the Throne, the federal government committed to working “to keep all Canadians safe, while at the same time protecting our cherished rights and freedoms” (Governor General of Canada, 2015).
The 2013 Speech from the Throne links the 150th anniversary of Confederation to a legacy of upholding “the rule of law, and the institutions to protect it; respect for human dignity and diversity”. Additionally, the Speech from the Throne focusses on supporting victims (particularly children) and the justice system’s role in protecting law-abiding citizens and communities and in assigning penalties that match the severity of crimes committed (Governor General of Canada, 2013). Legal aid enables the federal government to pursue an agenda of holding offenders accountable while meeting its constitutional, statutory and international obligations to respect fundamental rights.

Legal aid also contributes to Canada’s commitment to be a country that opens its doors to immigrants and refugees while upholding the commitment to Canadians to protect the borders from terrorists and other public safety concerns without compromising rights and freedoms. The federal government’s priority, as described in the 2015 Speech from the Throne, includes making it easier for immigrants to Canada to “build successful lives in Canada, reunite their families, and contribute to the economic success of all Canadians” (Governor General of Canada, 2015). I&R legal aid supports this commitment by ensuring I&R applicants have access to counsel as they navigate the reformed I&R determination system.

Budget 2016 further reflects the federal government’s priorities regarding access to justice. The Budget describes criminal legal aid as part of ensuring a fair and efficient Canadian justice system, particularly for economically disadvantaged persons. Funding for ensuring access to justice provided by Budget 2016 includes $88 million in additional funding over five years, starting in 2016-17, followed by $30 million a year in additional funding beginning in 2021-22. The funding is intended to support the provision of criminal legal aid in Canada and to promote innovation in legal aid (Government of Canada, 2016).

Departmental strategic outcomes

The Program also aligns with the Department’s first strategic outcome of “a fair, relevant, and accessible justice system that reflects Canadian values” (Department of Justice Canada, 2015). Through its contribution funding, the Program facilitates access to justice for economically disadvantaged individuals who are facing serious criminal charges seeking a determination under the I&R system, or who are experiencing a civil law issue and live in the territories. The Program, through the PWG, also facilitates collaboration among the federal government and the provincial and territorial governments, which is aligned with the departmental interest in a sustainable justice system (Department of Justice Canada, 2016a). Through its cost-sharing and FPT collaboration, the Program is considered part of the Department’s “stewardship of the Canadian legal framework” (Department of Justice Canada, 2015).

4.1.3. Alignment with federal roles and responsibilities

The evaluation findings confirm that the federal government has an appropriate and necessary role in providing legal aid funding in each of the areas covered by the Program.

Criminal legal aid in the provinces and criminal and civil legal aid in the territories

The basis for the federal role and responsibilities related to criminal legal aid in the provinces and criminal and civil legal aid in the territories is found in Canada’s foundational documents and in key statutes that define Canadian federalism. The following legislation is considered by PWG key informants to have created a federal obligation to provide legal aid funding.

The Constitution Act, 1867 established shared jurisdiction between the federal government and provinces and territories in the area of criminal justice. The federal government has authority for criminal law-making and criminal procedure (Section 91), and the provinces and territories are responsible for the administration of justice (Section 92).
The Canadian Charter of Rights and Freedoms also contains provisions that support the federal role in funding legal aid. Sections 7, 10(b) and 11(d) of the Charter, which codify Canada’s commitment to principles of fundamental justice before depriving someone of their liberty, the right to a fair trial, and the right upon arrest to retain counsel, have been interpreted by the courts to establish a limited right to counsel in criminal matters.
The federal role in the provision of funding for civil legal aid in the territories is based on the authority for civil law that the federal government retains under the territorial acts (the Yukon Act, the Northwest Territories Act, and the Nunavut Act).

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. More particularly, the United Nations’ International Covenant on Civil and Political Rights requires signatories to provide legal counsel to individuals facing criminal charges who cannot afford counsel, and the United Nations’ Principles and Guidelines for Access to Legal Aid in Criminal Justice Systems reiterates this commitment to providing legal aid and sets out guidelines for its provision.

The federal government’s commitment to legal aid is also longstanding, with over four decades of FPT legal aid agreements.^{Footnote 12} These shared commitments to the funding and provision of legal aid were affirmed in the 2010 FPT Ministers’ Statement on Criminal Legal Aid, whereby the Ministers committed to continued collaboration in the provision of criminal legal aid.^{Footnote 13}

PWG key informants provided additional reasons for the federal role and responsibilities. According to key informants, the federal government has an obligation to provide legal aid funding as its actions can affect the cost, demand for, and delivery of legal aid. For instance, when the federal government passes new criminal legislation, it directly impacts the justice system, including legal aid. In the view of key informants, this creates a federal imperative to help balance the power of the state and ensure that socioeconomically disadvantaged individuals have access to legal representation. According to key informants, the federal role is essential to ensuring access to justice.

In addition, several of the PWG key informants consider the federal role in funding criminal legal aid as helping to ensure its consistent standard across the country. Although the federal government does not dictate how funds are used, by providing funding based on set criteria to all jurisdictions, it promotes a standard for the provision of criminal legal aid.

A few PWG key informants pointed to the federal role in legal aid as part of fulfilling its responsibility to address and rectify past trauma and harm inflicted on Indigenous people, who are overrepresented in the criminal justice system. The federal government has recognized its role and responsibility in addressing this larger social issue by establishing the Truth and Reconciliation Commission of Canada, and by its current efforts to establish a commission on the issue of missing and murdered Indigenous women.

Immigration and refugee legal aid

Three factors underpin the federal role in funding I&R legal aid:

Immigration is an area of shared responsibility between the federal and provincial governments under the Constitution Act, 1867, although federal authority prevails in the case of conflict (Section 95). In operation, I&R is primarily a federal responsibility with the federal government establishing laws related to these matters, determining the volume of immigrants and refugees, and handling enforcement. The provinces determine access to benefits, such as social assistance and other services, to immigrants and refugees. As a result, key informants consider I&R to be primarily a federal responsibility: the federal government is not only the legislator (as it is in criminal law) but also is responsible for the administration of I&R laws (unlike in criminal law, where the provinces and territories are responsible for administration).
The Charter also protects all individuals in Canada, which means that its principles of equality and freedom from discrimination (Section 15) and fundamental justice (Section 7) apply to immigrants and refugees.^{Footnote 14}
As a signatory to the United Nations’ Convention Relating to the Status of Refugees (1951), the Protocol Relating to the Status of Refugees (1967), the International Covenant on Civil and Political Rights (1966), and the Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (1984), Canada has assumed obligations to protect persons at risk of persecution or torture if they were to be returned to their home country. These obligations include providing refugees the same access to the courts and to legal assistance as citizens. Although none of these international conventions and protocols is legally enforceable, they reflect Canada’s acceptance of the principles of justice they embody.

The other components of the Program also have clear constitutional and/or statutory bases for the federal role.

Court-Ordered Counsel in Federal Prosecutions

For COCFP, the courts have found a Charter right to counsel if it is necessary for a fair trial, whereby the court can order federally funded defence counsel in situations where an accused cannot afford counsel but is not eligible for legal aid, and where the proceedings are complex and there is a likelihood of imprisonment (R. v. Rowbotham). In addition to the constitutional basis for the federal role, there are also statutory forms of COCFP (Criminal Code of Canada, Sections 486.3, 672.24, 684, and 694). Courts are also using their inherent jurisdiction to order appointment of amicus curiae, who are lawyers that assist the court by serving as an independent counsel to provide legal advice. Amicus curiae are often appointed in proceedings involving Sections 37 (public interest) and 38 (national security) of the Canada Evidence Act. These proceedings allow appointed counsel to review top secret documents and provide the court with legal arguments on whether these documents should be disclosed, or whether they are of such a sensitive and potentially injurious nature that they should not be disclosed. Key informants involved with COCFP noted that the nature of the proceedings provides a clear rationale for the federal role. Federal interests are at stake and, should counsel not be provided, the public interest in a fair trial would not be upheld and the criminal justice system would be brought into disrepute.

Public Security and Anti-terrorism legal aid

PSAT legal aid funding is considered one of the areas where the federal government recognized the potential impact, including costs, of legislation on the criminal justice system, including legal aid plans. Key informants involved with PSAT cases pointed out that these cases receive a high level of attention both nationally and internationally, so it is critical for Canada to demonstrate its commitment to access to justice and fairness in its criminal justice system.

4.2. Performance - Achievement of Expected Outcomes (Effectiveness)

This section considers the effectiveness of the Program in achieving its outcomes.

4.2.1. Enhanced capacity of provinces and territories and their legal aid plans to deliver legal aid in the 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 extent to which the federal contribution has supported this outcome is based on whether legal aid plans have maintained their ability to meet the demand. This section first considers the available evidence on the capacity of the provinces and territories and their legal aid plans to meet the demand for legal aid services in the areas that receive federal funding, and then considers the role of the federal government’s funding contribution in supporting that capacity.

Meeting demand for legal aid in areas that receive federal funding

Overall, based on available measures, legal aid plans have been able to address demand as reflected in the proportion of approved legal aid applications, although, as will be discussed below, approved applications do not provide a complete picture of the actual or potential demand for legal aid services.^{Footnote 15}

Criminal legal aid

Based on data reported to the CCJS, demand for criminal legal aid has been relatively stable between 2012-13 and 2014-15, but with jurisdictional variations. Some jurisdictions have seen lower demand in terms of legal aid applications made during the period of time covered by the evaluation (Newfoundland and Labrador, Prince Edward Island, Quebec, Ontario, Manitoba, Saskatchewan, British Columbia, Northwest Territories, Yukon). Other jurisdictions reported an increase in the demand for criminal legal aid (Alberta, Nunavut) or their demand fluctuated during the time period covered by the evaluation (Nova Scotia, New Brunswick, British Columbia). According to key informants, the differences in the jurisdictions were reflected partially in the crime rates, and the rates for specific types of crimes either increasing or decreasing, but also were due to unique economic factors. Alberta, in particular, pointed to the economic stresses it is experiencing. The shift in its economic situation has meant a fairly rapid increase in unemployment, which can lead to both higher crimes rates and more people qualifying for legal aid.

The available data for the period covered by the evaluation (2015-16 data are not yet available) show a decline of 4% from 325,667 criminal legal aid applications in 2012-13 to 311,158 in 2014-15.^{Footnote 16} Individuals whose applications are approved are provided legal representation by counsel. The number of approved criminal legal aid applications similarly decreased by 4% from 274,287 in 2012-13 to 262,998 in 2014-15 (Statistics Canada, 2015b). As a measure of meeting demand, the proportion of applications approved for legal aid coverage remained fairly constant at about 84% between 2012-13 and 2014-15 (Statistics Canada, 2015b, 2016b). The number of approved applications are below the Department’s performance target of 280,000 (2013-14) and 270,000 (2014-15) approved applications for criminal legal aid in provinces, the aim of which is to demonstrate “enhanced capacity of provinces and their legal aid plans to deliver criminal legal aid services to eligible economically disadvantaged persons”.^{Footnote 17}

Figure 1: Criminal legal aid applications 2009-10 - 2014-15

It is important to note that the number of applications is not a complete picture of the demand for legal aid. It does not consider individuals who are pre-screened by legal aid plans for eligibility and do not submit an application, or individuals who receive legal aid services under presumed eligibility.^{Footnote 18} It also does not consider those who may believe, given the posted financial eligibility guidelines (FEGs), that they are not eligible and do not apply. The reduction in the number of applications could also be due to an increase in other types of services that address client’s needs (e.g., duty counsel services, including expanded duty counsel (EDC) services, to resolve matters sooner, summary legal aid advice available through duty counsel, and legal advice lines).

Data on duty counsel assists demonstrate that a large number of clients receive services through this method, where lawyers provide brief services to unrepresented people typically in first appearance or plea court. The overall number of reported assists declined between 2012-13 and 2014-15, although this is driven by a large decline (-12%) in the number of assists by LAO. Conversely, Legal Aid Alberta has experienced a large increase (15%). If these two provinces are removed, the increase is 2% for the other provinces reporting duty counsel assists.^{Footnote 19} Over the period covered by the evaluation for which there are data (2012-13 to 2014-15), the average annual number of duty counsel assists by legal aid plans combined was 1,056,709 (Statistics Canada, n.d.).

Civil legal aid in the territories

Overall, the demand in the territories for civil legal aid (family law, child protection, civil law,^{Footnote 20} poverty law), as measured by the number of applications, has declined by 6% during the period covered by the evaluation for which there are data (2011-12 to 2014-15), but there are jurisdictional variations.^{Footnote 21} The proportion of approved applications has increased from 71% to 93% during that time period, which is an indication that legal aid plans in the territories are keeping pace with demand for civil legal aid based on this measure. However, as noted earlier, the proportion of approved applications does not provide a complete picture of demand.

Immigration and refugee legal aid

The capacity of legal aid plans to meet the demand for I&R legal aid must be placed in the context of the reforms to the refugee determination system, which took effect on December 15, 2012. Although not the only area of immigration law in which legal aid plans provide services, refugee protection claims constitute most of the I&R legal aid expenditures. The refugee system reforms were intended to address a large backlog of unresolved refugee protection claims and increase the efficiency of the system. To accomplish this, the federal government made numerous changes to the refugee determination system. Some of the more significant changes included the shortened timelines for scheduling hearings before the Refugee Protection Division (RPD), the creation of the Refugee Appeal Division (RAD), and changes to the rules so that claimants can be deported while their judicial review before the Federal Court is pending. Justice professionals working in the I&R area also reported changes to the system that affected the demand for legal aid, such as greater use of detention of refugee claimants by the federal government, and more stages to claims (admissibility hearings at the Immigration Division, the hearing of the refugee claim before the RPD, then the potential appeal to the RAD and/or judicial review to the Federal Court).

Data from the IRB demonstrate that the new refugee determination process has affected the number of new refugee protection claims. After the reforms took effect on December 15, 2012, the number of new claims dropped (IRB, 2014, 2015). According to PWG key informants from jurisdictions who receive I&R legal aid funding, as well as I&R justice professionals, the drop in new claims was to be expected. Any time there are major changes to the refugee determination system, there is a drop in new claims as individuals wait to see how the new process will operate. However, the expectation is that the number of new claims will likely begin to increase and over time will return to past levels. The increase in the number of new claims has begun, as in 2014-15 the number of claims increased by 39% (see Figure 3). The IRB forecasts that the number of referrals^{Footnote 22} (i.e. levels of primary intakes) will increase by 3,000 in 2015-16^{Footnote 23} and by another 1,000 in 2016-17 (IRB, 2016).

Demand for I&R legal aid has been affected by the refugee reforms and the drop in the number of new refugee protection claims. However, the effect is not uniform across the jurisdictions receiving federal I&R legal aid funding, and within the jurisdictions demand has fluctuated throughout the evaluation period. As shown in Figure 4, for all jurisdictions there was a decrease in the number of I&R legal aid certificates between 2011-12 and 2012-13.^{Footnote 24} Figure 4 also reflects key informant and IRB expectations that the number of new refugee protection claims will rise after the initial decline. For fiscal year 2014-15, most provinces receiving federal I&R contributions experienced a rise in refugee claims over the previous year with the exception of Quebec, which had a 5% decline in I&R certificates.

Immigration and refugee legal aid certificates

Percentage change year-to-year for immigration and refugee legal aid certificates
	2010-11 to 2011-12	2011-12 to 2012-13	2012-13 to 2013-14	2013-14 to 2014-15
BC	-28%	-19%	-26%	12%
ON	10%	-38%	-37%	21%
MB	50%	-9%	10%	11%
QC	6%	-9%	-13%	-5%
AB	26%	-4%	27%	8%

Available data indicate for 2010–11 to 2014–15 that the legal aid plans were able to respond to demand for I&R legal aid, with most applicants receiving coverage. For example, Alberta, British Columbia, Manitoba and Quebec had experienced increases in the proportion of applications receiving legal aid coverage (72% in 2011-12 to 91% in 2014-15 for Alberta, 64% to 73% for British Columbia, 85% to 91% for Manitoba, and 86% to 89% for Quebec). The proportion of I&R legal aid applications had declined in Ontario and remained at more than four-fifths of applications (94% in 2011-12 to 84% in 2014-15). Key informants noted that as demand increases, legal aid plans’ ability to provide coverage will be challenged.

Court-Ordered Counsel in Federal Prosecutions

As described in Section 2.2.3, the majority of COCFP cases involve a court order that requires the Attorney General of Canada to provide funded defence counsel for an unrepresented accused person who does not qualify for legal aid.^{Footnote 25} This is pursuant to Sections 7 and 11(b) of the Charter, which provide that an indigent person’s rights to a fair trial are infringed upon if the criminal charge is serious, involves complex legal issues, and there is a likelihood of incarceration upon conviction.

COCFP cases are managed either by the provinces and territories, or their legal aid plans, on behalf of the federal government or directly by the Program. In cases that are managed by the provinces and territories or their legal aid plans, the federal government covers the totality of the legal service costs (fees and disbursements) of defence counsel, plus a 15% management fee. Key informants with COCFP experience commented that the management fee was sufficient for these cases.

COCFP cases have increased, although 2015-16 shows a marked decline in cases managed by the provinces and territories or their legal aid plans on behalf of the federal government. The proportion of COCFP cases that are managed directly by the Program has remained at approximately one-sixth until 2015-16; however, that increase is due to the decline in the number of cases managed by provinces and territories or legal aid plans, rather than any increase in the number of cases managed by the Program.

Number of COCFP cases by year
	2010-11	2011-12	2012-13	2013-14	2014-15	2015-16
Cases managed by the program	8	11	16	21	20	19
Cases managed by the P/Ts or legal aid plans	45	51	76	91	107	55
Total	53	62	92	112	127	74

Public Security and Anti-terrorism legal aid

Prosecution for terrorism-related offences was acknowledged to be complex and costly, which means that defending individuals charged for these crimes is also complex and costly. As a result, when defendants are eligible for legal aid, the federal government provides funds to cover their legal aid costs. During the period covered by the evaluation (2012-13 to 2015-16), the number of cases that received funding each fiscal year ranged from 11 to 18 (including IRPA Division 9 cases), and the total costs of these cases ranged from $2.8 million to $1.3 million per fiscal year.

Effect of the federal funding contribution on capacity of legal aid plans

Criminal legal aid in provinces and criminal and civil legal aid in the territories

The total shareable expenditures for criminal legal aid in provinces and criminal and civil legal aid in the territories rose by approximately 8%, from $384.4 million in 2010-11 to $415.7 million in 2014-15; the federal contribution remained at $112.39 million for criminal legal aid in provinces and criminal and civil legal aid in the territories during this period of time. As Figure 6 shows, federal funding, as a proportion of total shareable expenditures, remained fairly stable during the time period covered by the evaluation and contributed about 27–28% of the funds used to support the delivery of criminal legal aid in the provinces and criminal and civil legal aid in the territories.

Proportion of the federal contribution to shareable expenditures (criminal legal aid in provinces and criminal and civil legal aid in the territories)
	2010-11	2011-12	2012-13	2013-14	2014-15
Federal contribution	$112,385,463	$112,385,463	$112,385,463	$112,241,714	$112,385,463
Provincial/territorial contribution	$271,981,446	$285,053,991	$297,514,260	$292,507,819	$303,330,991
Proportion of federal contribution	29%	28%	27%	28%	27%

The announcement in Budget 2016 of $88 million over five years beginning in 2016-17 occurred after the PWG key informant interviews were completed. Therefore, key informant opinions on the effectiveness of the federal contribution to increasing the capacity of legal aid plans do not include PWG representatives’ reactions to the increase in the federal contribution. With that context in mind, PWG key informant opinions pointed to the lack of any increases since 2003-04 in the federal contribution to criminal legal aid in provinces and criminal and civil legal aid in the territories. This has meant that the federal government has been funding an increasingly smaller percentage of shareable expenditures over time, as provinces and territories increase their funding. Many of the PWG key informants viewed this as a reduction in the federal commitment to support legal aid given the funding levels as of 2015-16.

Most PWG key informants desired a greater federal commitment to legal aid, but they also commented that the federal contribution of $112.39 million was important to maintaining current levels of service. Without the federal contribution, most PWG key informants believe that access to justice would be adversely affected as services would have to be cut. Because of the constitutional responsibilities attached to criminal legal aid, the services most likely to be affected would be in the areas of family or civil law.

Key informants (PWG and criminal justice professionals) pointed out that although the demand for criminal and civil legal aid as measured by legal aid applications may not have increased, the costs of providing services have, which makes maintaining (at a minimum) federal funding levels critical for legal aid plans. The reasons for rising costs will be discussed further in Section 4.3.2. In addition, inflation has eroded the value of the federal contribution. Since 2003, the average annual inflation rate has been 1.77%, which means that the federal investment would need to have grown in order to keep pace with inflation.^{Footnote 26}

Immigration and refugee legal aid

The shareable expenditures for I&R legal aid have declined by 10% between 2010-11 and 2014-15. As a result, the proportion of the federal contribution has varied by the level of shareable expenditures. In 2014-15, the federal government contributed 36% of the funding for I&R legal aid.^{Footnote 27} The federal contribution increased by $500,000 from 2013-14 to 2015-16 to address expected increased demand for I&R services related to cessation/vacation applications.

Proportion of the federal contribution to shareable expenditures (I&R)
	2010-11	2011-12	2012-13	2013-14	2014-15
Federal contribution	$16,245,000	$11,500,000	$11,500,000	$12,000,000	$12,000,000
Provincial/territorial contribution	$21,139,737	$27,800,487	$24,192,753	$19,220,137	$21,791,562
Proportion of federal contribution	43%	29%	32%	38%	36%

The federal contribution to I&R legal aid is considered essential to maintaining these legal aid services. PWG key informants pointed out that I&R legislation and enforcement are federally directed and can have significant effects on the cost and delivery of I&R legal aid. As a consequence, most PWG key informants believe that the federal government should bear more responsibility (i.e. more of the cost) for I&R legal aid than it does currently. This is particularly the case given the consequences of refugee reform legislation.

If federal funding were withdrawn or substantially reduced, key informants believe that some jurisdictions would likely cease funding I&R legal aid, and consequently, more unrepresented people would appear before the IRB. Key informants (PWG and I&R lawyers) expect that the increased complexity of handling I&R legal aid cases with the recovering (increasing) volume will lead to strains in the I&R legal aid system.

Court-Ordered Counsel in Federal Prosecutions

As discussed in Section 4.1.3, funding counsel for COCFP cases 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 to these federal prosecutions where the court has ordered counsel in the interest of justice and a fair trial.

Key informants noted that if the expenses of providing court-ordered counsel were not covered by the Program, the provinces and territories could withdraw service, which would result in stays and require the federal government to develop its own legal aid system to provide COCFP.

The evaluation findings indicate effective provision of COCFP services by the Program. No stays of proceedings were reported in these cases, which meets the departmental performance standard set for COCFP and indicates a well-managed system that responds to court orders in a timely fashion. The major change to the delivery of the COCFP since the 2012 evaluation is the development of an umbrella agreement so that legal aid plans or provinces and territories that are managing COCFP cases do not have to create individual agreements to manage each case. Key informants considered the umbrella agreement to be a positive development.

Public Security and Anti-terrorism legal aid

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.

Contribution of the Federal-Provincial-Territorial Permanent Working Group on Legal Aid to increasing capacity of legal aid plans

As described in Section 2.2.5, the PWG has a wide-ranging mandate that includes serving as a resource to the 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. The previous two evaluations of the Program found that negotiating cost-sharing agreements and constructing a business case for legal aid have consumed the efforts of the PWG and limited its ability to fully pursue all aspects of its mandate.

Similar to the previous two evaluation periods, there continued to be a significant focus on reviewing the contribution agreements and the funding formulae for legal aid. As a result, some PWG key informants suggested that the Working Group needs to revisit its terms of reference or mandate to better define its role. This suggestion is consistent with the previous evaluation’s finding that the PWG would benefit from the establishment of clearer priorities or a sense of stronger direction/support from a senior level to the PWG.

There is evidence that the PWG is beginning to realign its focus toward facilitating discussion to other legal aid program and policy matters beyond funding and distribution formulae. This shift is evident from documentation on meetings and conferences that took place during the later years of the evaluation period. The more recent meetings have included discussions related to innovations and best practices as well as performance metrics and consistent data collection through the Legal Aid Survey conducted by the CCJS. The Program also funded a Canada-wide study on “Maximizing the Federal Investment in Criminal Legal Aid” (PRA Inc., 2014) to support work undertaken by the Deputy Minister Advisory Panel on Criminal Legal Aid, which issued its reports in 2014 (Department of Justice Canada, 2014).

This shift in focus is supported by the PWG key informants, who supported moving beyond the funding formulae to other issues, like performance measurement. Based on interviews, there is substantial support for working on performance metrics and consistent data collection across jurisdictions. Information sharing on best practices and innovations also received positive feedback, although the provincial-territorial members of the PWG were more positive about the potential for this sharing to be beneficial than were the representatives of the legal aid plans. Several plans view the PWG role in information sharing of best practices and innovations as secondary to that of the Association of Legal Aid Plans.

PWG key informants provided several suggestions for improvement:

explore issues related to the impact of legislative changes on legal aid (this was also a finding in the last evaluation);
connect with other relevant FPT working groups to bring a broader focus to PWG discussions;
have more action-oriented discussions of issues;
fund more research (key informants noted that the PWG used to have more of a research agenda); and
consider more in-person meetings and not always in Ottawa, as the travel time can be onerous for individuals in Western Canada.

4.2.2. Effective provision of legal aid to eligible persons in the areas receiving federal funding

The previous section looked at the capacity to provide legal aid in the areas of federal funding by considering the extent to which the federal contribution supported the ability to meet the current demand for legal aid. This section considers the intermediate outcome of whether the Program has been able to demonstrate effective provision of legal aid to eligible persons in the areas receiving federal funding. Effective provision of legal aid is difficult to define for the Program. The federal evaluation of the Program is not intended to evaluate the effectiveness of the delivery of legal aid by the provinces and territories and their legal aid plans. Instead, the evaluation is to consider how the federal contribution may or may not have supported effective provision.

The analysis will consider effective provision from a few dimensions: first, the ability to provide legal aid to low-income Canadians by considering whether there might be unmet need; second, the adoption of innovations and promising practices to enhance provision of legal aid, which are, in part, supported by the federal contribution; and third, the ability to meet the access to justice needs of legal aid clients by considering legal aid service delivery and the potential consequences to clients if there is not effective provision of legal aid.

Potential unmet needs

Section 4.2.1 considered the capacity to address demand within legal aid plans’ current FEGs, which establish the financial levels for assessing whether an individual is eligible for legal aid. That analysis does not consider potential unmet demand created by the level of the guidelines. PWG key informants as well as justice professionals have commented upon the inability of many plans to set their FEGs in order to keep pace with economic circumstances. These key informants believe that this situation has led to a growing proportion of individuals who would be classified as low income and cannot afford a lawyer but who are ineligible for legal aid.

Each legal aid plan has its own FEGs, which usually include maximum levels of income and assets for legal aid eligibility. For purposes of the comparison between the guidelines and other economic indicators, the income levels were used. The comparison shows whether the income levels are keeping pace with inflation, increases in wages, and low income cut-offs (LICOs) as a way to demonstrate whether legal aid plan financial eligibility requirements are responding to the economic environment.^{Footnote 28} If FEGs are not keeping pace with increases in these indicators over time, fewer economically disadvantaged people will qualify for legal aid.

The evaluation found that the ability of legal aid plans to adjust their FEGs varies across jurisdictions. Those who cannot adjust their guidelines are restricting the accessibility of legal aid, although this is also a way to manage demand for services and, therefore, expenditures. Those who can adjust their guidelines are increasing access to justice. The belief is that the FEGs for most plans are now set so low that many low-income individuals facing the likelihood of imprisonment can neither afford lawyers nor qualify for legal aid. This was considered to be the case even in jurisdictions where provincial-territorial funding had increased, although there are clear improvements for several of the provinces.

Comparing the FEGs to other economic measures places them in perspective. Figures 8 and 9 below compare the guidelines for family sizes of between one and four to other economic measures, between 2010 and 2015, for seven provinces: British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, and Nova Scotia.^{Footnote 29} The two figures are presented to show how the differences are affected by family size, as legal aid FEGs are scaled based on family size. The main findings are the following:

Three provinces (Manitoba, Ontario and Quebec) have increased their FEGs well above any of the economic measures used.
Alberta has increased its guidelines above the economic measures, but to a lesser extent than the three provinces noted above.
One province, British Columbia, has been able to increase FEGs to keep pace with inflation (as measured by provincial CPIs), but the increase is less than the increase in wages (as measured by the minimum wage and fixed-weighted hourly earnings, often called real wages).
Nova Scotia has not increased its legal aid financial guidelines since 1998, so its FEGs have not kept pace with increases in inflation, average hourly earnings, or the minimum wage.
Saskatchewan’s legal aid FEGs both for a single person and a family of four have decreased slightly between 2010 and 2015, while inflation and wages have increased during this time period.

The methods used and assumptions made for the calculations in Figure 8 and Figure 9 appear in Appendix E.

Comparison of provincial financial eligibility guidelines to other economic measures – 2010 to 2015 percentage increase – household of 4
	BC	AB	SK	MB	ON	QC	NS
FEGs	6%	34%	-1%	26%	73%	59%	0%
Consumer Price Index	6%	9%	10%	10%	9%	9%	9%
Average hourly earnings	11%	13%	16%	11%	9%	12%	14%
Minimum wage	31%	27%	14%	22%	18%	24%	23%

Comparison of provincial financial eligibility guidelines to other economic measures – 2010 to 2015 percentage increase – household of 1
	BC	AB	SK	MB	ON	QC	NS
FEGs	6%	34%	-2%	64%	87%	59%	0%
Consumer Price Index	6%	9%	10%	10%	9%	9%	9%
Average hourly earnings	11%	13%	16%	11%	9%	12%	14%
Minimum wage	31%	27%	14%	22%	18%	24%	23%

Another measure of the responsiveness of provincial-territorial FEGs to the economic situations of lower-income people is a comparison to the LICOs. Statistics Canada has developed a method of estimating income levels (LICOs) at which families spend 20 percentage points more than the average family on necessities like food, shelter and clothing. This level is considered to indicate families that are in “straitened circumstances.^{Footnote 30} To provide some examples of the income levels at issue, the legal aid plans in Ontario and Manitoba base their FEGs on before tax income, which for a single person is $20,225 and $23,000, respectively. The before tax LICO in 2015 for a single person living in a city with a population of 500,000 or more (e.g., Toronto or Winnipeg) was $24,593. In Saskatchewan, where the FEGs are based on after tax incomes, the after tax LICO for a single person living in Saskatoon or Regina was $17,236 in 2015 and the FEG was $11,820.

Table 6 compares the FEGs to the before and after tax LICOs for 2010 and 2015 to show changes in FEGs to LICO over time. LICO measures are calculated based on year, family size, and population. The percentages in Table 6 represent the percentage of difference between the FEGs and the LICOs. A negative percentage means that the guidelines are below the LICO by that percentage, which indicates that some individuals whose income is below the LICO do not qualify for legal aid (i.e. they are low-income, but not low-income enough). Conversely, a positive percentage means that the FEGs are above the LICO by that percentage. The change in FEGs to the LICO between 2010 and 2015 is based on comparing the percentage figures in Table 6. If the percentage difference becomes smaller between 2010 and 2015, the FEGs are closer to the LICO, and if the difference becomes larger, the guidelines are further from the LICO. If the percentage difference shifts between 2010 and 2015 from negative to positive, the FEGs have changed from being below the LICO to above it.

The data show that some legal aid plans (Alberta, Manitoba, Ontario and Quebec) have reduced the difference between the LICOs and their FEGs, meaning that more families living under the LICO levels are eligible for legal aid. For example, in 2010, a family of four in Ontario had to have a household income 43% below the LICO level to be eligible for legal aid, while in 2015 that gap has been reduced to 9%. British Columbia’s FEGs are above the LICO levels in 2010 and 2015; however, the gap has become smaller over those six years. In Saskatchewan and Nova Scotia, the guidelines are falling further behind the LICO levels, since the guidelines have decreased in Saskatchewan and have remained unchanged in Nova Scotia between 2010 and 2015.

For each province represented in Table 6, the guidelines are compared to the LICOs for all family sizes for the population of the largest city in each respective province.^{Footnote 31} Comparison of the provincial guidelines to all relevant LICO population measures are presented in Appendix F.

Table 6: Percentage difference between provincial financial eligibility guidelines and low income cut-offs ^{Table note i}
Population		500,000+					100,000-499,999
Province		BC	AB^{Table note ii}	MB	ON^{Table note iii}	QC^{Table note iv}	SK^{Table note v}	NS^{Table note vi}
2010
Family size	1	-9.2%	-21.6%	-38.2%	-52.3%	-35.5%	-24.4%	-34.3%
	2	4.1%	-20.3%	-36.1%	-33.7%	-26.3%		-29.6%
	3	7.2%	-8.9%	-33.6%	-38.5%	-33.8%		-31.3%
	4	4.9%	-21.1%	-35.8%	-42.8%	-44.1%		-36.0%
	5	8.7%	-25.5%	-35.0%	-44.0%			-37.0%
	6	13.3%	-28.1%	-36.8%			-39.3%	-38.4%
	7+	17.1%		-38.2%				-39.4%
2015^{Table note vii}
Family size	1	-11.7%	-3.6%	-6.5%	-17.8%	-21.9%	-31.4%	-39.5%
	2	1.6%	-1.9%	-11.8%	-0.9%	-12.7%	-34.2%	-35.2%
	3	4.9%	12.1%	-17.6%	-7.5%	-20.6%	-29.3%	-36.8%
	4	2.5%	-2.9%	-25.6%	-9.0%	-31.1%	-37.8%	-41.1%
	5	6.4%	-8.3%	-28.6%	-6.8%		-42.3%	-42.0%
	6	10.7%	-11.5%	-31.6%			-44.6%	-43.3%
	7+	14.3%		-33.9%			-43.6%	-44.2%

Note: Percentages calculated as [(Highest contribution level for size of family – LICO) / LICO] * 100

Source for LICOs: Statistics Canada. (2015). Low income cut-offs (1992 base) after tax. Retrieved March 29, 2016 from http://www.statcan.gc.ca/pub/75f0002m/2012002/tbl/tbl01-eng.htm Statistics Canada. (2015). Low income cut-offs (1992 base) before tax. Retrieved March 29, 2016 from http://www.statcan.gc.ca/pub/75f0002m/2012002/tbl/tbl02-eng.htm

Table note i

BC, AB, and SK were compared to after-tax LICOs; MB, ON, and NS were compared to before tax-LICOs; QC was compared to after-tax LICOs in 2010 and to before-tax LICOs in 2015.

Return to table note i referrer

Table note ii

For 2010 and 2015, FEGs ranged from 1 to a family size of 6+.

Return to table note ii referrer

Table note iii

For 2010 and 2015, FEGs ranged from 1 to a family size of 5+.

Return to table note iii referrer

Table note iv

For 2010 and 2015, Quebec separates its eligibility guidelines by single and two-parent families. The higher financial guideline was chosen for each calculation, which was the two-parent family guideline for each applicable family size. It ranged from 1 adult and 0 children to 2 adults and 2 children or more.

Return to table note iv referrer

Table note v

Saskatchewan guidelines are provided for families with number of children, where family was defined as one or two-parent household. For this table, two parents are assumed, so the eligibility criterion for a family of four is equivalent to a family with two children. Only family sizes of one adult and no children and family with four children were available for 2010.

Return to table note v referrer

Table note vi

Nova Scotia separates its eligibility guidelines by single and two-parent families. The higher financial guideline was chosen for each calculation, which was the two-parent family guideline for each applicable family size.

Return to table note vi referrer

Table note vii

LICOs for 2015 were not available and were therefore calculated as LICO2015 = LICO1992 x CPI2015 / CPI1992 (Source: Statistics Canada. [2015]. Low income cut-offs. Retrieved March 29, 2016 from http://www.statcan.gc.ca/pub/75f0002m/2010005/lico-sfr-eng.htm).

Return to table note vii referrer

The levels of the FEGs compared to the LICOs confirm key informants’ beliefs that there are low-income individuals who cannot afford private bar counsel, and who also do not qualify for legal aid. These individuals are not necessarily reflected in the data on legal aid applications refused for financial ineligibility: some legal aid plans pre-screen individuals, so those who clearly are not financially eligible will not apply; and potential clients may determine, using the FEGs posted online, that they are not eligible given their annual income and the value of their assets.

The situation of low-income Canadians who are financially ineligible for legal aid, coupled with the rising cost of private bar counsel, provides a further indication of the unmet need for legal aid. The Canadian Lawyer magazine’s annual survey of legal fees shows the high cost of retaining private bar counsel. The average cost of legal representation for a bail hearing has increased by 77% from 2012 to 2015. For a one-day trial for a criminal offence, the average cost of legal fees has increased by 70% (see Table 7). In 2015, guidelines for legal aid ranged from an annual gross income of $11,820 to $23,000 for a household of one, and from $21,420 to $41,573 for a family of four (excluding Nunavut). A comparison of FEGs to the cost of private bar counsel demonstrates the continued need for legal aid, as well as the potential unmet need.

Table 7: National fee ranges of private bar counsel for types of matters covered by legal aid
Types of matters	2012 ($)			2015 ($)
Types of matters	Minimum	Maximum	Average	Minimum	Maximum	Average
Summary criminal offence (one-day trial)	3,385	6,144	3,736	3,256	14,792	5,334
Bail hearing	684	2,164	989	1,181	4,772	1,750
Criminal offence (one-day trial)	2,991	7,524	4,115	4,820	30,957	6,992
Child custody and support agreement	1,353	6,628	2,227	2,033	1,295	7,788
Refugee protection claim	N/A	N/A	N/A	3,468	6,474	4,262

Sources: Canadian Lawyer (2012 and 2015). The Going Rate.

Innovations and promising practices to enhance legal aid services

In addition to some plans being able 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. The 2014 study conducted by the Program entitled Maximizing the Federal Investment in Criminal Legal Aid, developed an inventory of promising or best practices of legal aid plans across Canada. The current evaluation conducted 10 case studies to provide more in-depth information about promising practices or innovations of legal aid plans. This section considers the results of the 2014 study and the case studies. The federal government supports these activities through its funding contribution.

The innovations or promising practices cover a number of the key challenges that legal aid experiences in Canada.

Increasing accessibility. The Maximizing the Federal Investment in Criminal Legal Aid report identified several ways that legal aid plans are increasing accessibility while trying to control legal aid costs. As described above, plans can increase accessibility by increasing their FEGs, but this comes with the cost of then providing full representation to the increased numbers of accused persons who would qualify for legal aid.

To increase accessibility without the substantial cost increase that would occur upon raising FEGs, legal aid plans have undertaken a variety of methods to provide some level of service to those who do not qualify for full representation services. For example, some legal aid plans have introduced mechanisms to provide all individuals who contact legal aid with some level of service. Examples are telephone “law line” services offered by some plans where clients may qualify for summary legal advice, such as information on bail processes and first appearance procedures. ^{Footnote 32} As noted in the Maximizing the Federal Investment in Criminal Legal Aid report, benefits include connecting clients with a lawyer sooner and providing clients with at least some level of legal services.

Case studies which are discussed below highlighted other methods of increasing accessibility.

Expanded duty counsel: Many legal aid plans provide duty counsel services, but several offer expanded duty counsel (EDC), which can include providing services not only to in-custody but also out-of-custody accused persons and more extended services to help resolve matters sooner. Nova Scotia Legal Aid has instituted EDC for both in- and out-of-custody accused persons. Clients are provided duty counsel services even if they are not financially eligible for legal aid or there is not a likelihood of incarceration. EDC was developed to help accused persons who are appearing in court for the first time navigate the process and understand their legal options. According to key informants, prior to the EDC, lawyers informally would assist unrepresented accused; however, this was an unreliable practice that left service gaps. The EDC has increased client assists by approximately 20% between 2012-13 and 2014-15, and about one-quarter to one-third of those individuals assisted would not have previously been eligible for legal aid, which demonstrates the effect of this innovation on increasing accessibility to legal aid and access to justice.
Presumed eligibility: The Northwest Territories Legal Aid Commission and the Legal Services Board of Nunavut use presumed eligibility for criminal matters (the Legal Services Board also uses it for child welfare cases and in a few other types of civil and family matters, see Section 3.5). Presumed eligibility does not require the accused persons to apply for legal aid unless they want to plead not guilty. Avoidance of the legal aid application process benefits accused persons in the Northwest Territories and Nunavut, many of whom find gathering the needed documentation for applications challenging. Presumed eligibility provides the accused with immediate access to a lawyer at their first appearance, thereby avoiding adjournments and delays in the court process. It also provides an opportunity for early case resolution. Delays can be magnified for accused living in small, remote locations with no access to a legal aid office and where circuit court only comes to their community once every six weeks or more. As well, many of the accused face language and/or cultural barriers in understanding the Canadian justice system and the legal aid application process. Others are experiencing mental health or addictions issues, which also pose comprehension barriers. Key informants said that 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.
Preventative approach to expand coverage to assist particularly vulnerable groups: As part of the LAO’s Mental Health Strategy, this approach has expanded coverage to first-time accused to take a more proactive approach and provide services to individuals who may experience other significant consequences, besides incarceration. One such expansion is providing coverage to senior citizens who have mental health issues (including Alzheimer’s and dementia-related illnesses) and/or substance use disorders and have been accused of a crime. This innovation increases access to legal aid as the risk of incarceration is not a requirement for coverage. Providing coverage to this client group is based on the recognition that a criminal record can have devastating consequences to senior citizens, such as 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.

Addressing the needs of clients who have multiple barriers and non-legal issues. PWG and justice professionals emphasized the multiple barriers faced by legal aid clients, such as low education levels, alcohol and other substance misuse, past trauma, and mental health issues. According to many of the interviewees, these barriers and non-legal issues make it difficult for legal aid clients to navigate the legal system without assistance, often cause counsel to expend hours beyond what will be compensated under the legal aid tariff in order to assist them, and lead to high rates of recidivism. The justice system and legal aid have responded through a variety of mechanisms. The case studies provided several examples, as follows:

Specialized or problem-solving courts with multi-disciplinary teams: The Mental Health Court in Montréal, the Drug Treatment Courts (DTCs) in Calgary and Edmonton, and the Cknúcwentn First Nations Court in Kamloops are all examples of specialized courts where legal aid plans work with other justice stakeholders to provide a more holistic approach to handling criminal cases that involve court-ordered treatment rather than incarceration. Specialized courts are one of the more intensively studied criminal justice innovations, and these studies indicate success in reducing recidivism.^{Footnote 33} A recent evaluation of the Drug Treatment Court Funding Program, which included the DTCs in Calgary and Edmonton, found lower rates of recidivism among DTC graduates (Department of Justice Canada, 2015b).

The case studies also provided qualitative evidence that these courts are reducing both the number of individuals incarcerated and rates of recidivism, as well as increasing compliance with court orders. The courts also provide a better alignment of services to meet the offender’s needs. For example, the Cknúcwentn First Nations Court involves Elders in working with the offender to develop a healing plan and in monitoring the offender’s progress, which is more aligned with the traditional Indigenous approach to justice.

Legal aid plans support these courts largely by funding the duty counsel or defence counsel involved with the courts. For legal aid, participation in these courts requires more resources per client as the time spent on each client is more than in the traditional court process. In addition, for some of these courts, the charges are not necessarily those that would be covered by legal aid plans. Therefore, these innovations/promising practices reflect the comments made by some members of the PWG, that participation in innovations often requires additional resources.
Specialized legal aid offices that offer interdisciplinary teams: The Youth Criminal Defence Office (YCDO) of Legal Aid Alberta provides services to youth using a multi-disciplinary team of staff lawyers and youth workers. The YCDO offers assistance with non-legal supports, such as accessing treatment or finding housing or education programs. Interviewees believed that by representing and supporting youth in a holistic manner, the Office assists them with changing their lives by addressing the root causes of their criminal behavior. They credit the YCDO with reducing the number of incarcerated youth in Alberta.

Undertaking more integrated and coordinated approaches with other stakeholders. The importance of system-wide, cross-sectoral responses to address issues in the justice system and improve efficiencies was highlighted in the Maximizing the Federal Investment in Criminal Legal Aid report. As noted by key informants, the actions taken by one stakeholder in the system can affect others. By taking a coordinated approach, inefficiencies or challenges within the system can be better addressed. The case studies provided several examples of these approaches.

The Lean initiative in Saskatchewan involved consultations to develop a coordinated response to improve the efficiency of the custody docket process and reduce the number of individuals being held at the remand centre. As discussed in Section 4.1.1, there is a high number of individuals in remand and they are disproportionately Indigenous people, many of whom are likely legal aid clients. Interviewees (legal aid duty counsel, Crown, and the judiciary) believe that the approach has increased early resolutions and created efficiencies in the process through greater use of video court appearances and a reorganized court schedule. However, early results that reduced the number of remands were not sustainable due to human resource limitations experienced by the Legal Aid Commission.^{Footnote 34}
One case study involved I&R legal aid and demonstrated how the different stakeholders in the refugee determination process could work together to manage an unprecedented influx of refugees. The large number of refugees could have resulted in a backlog of claims and numerous inefficiencies (e.g., adjournments) if the Legal Services Society of British Columbia and other stakeholders did not take steps to address potential points for logjams. The case study interviewees emphasized the importance of communication and advance notification among the IRB, relevant federal departments and agencies, and the Legal Services Society so that they could prepare or know if a hearing would not proceed. In addition, the Society developed new processes to ensure a proactive and coordinated approach. Refugees were not required to apply for legal aid prior to receiving service, so that they were provided legal advice early in the process (i.e. at their detention hearing). The Legal Services Society also adopted a file management approach where counsel made notes in hard copy individual client files; this approach ensured continuity of service for clients and allowed the legal aid plan to have more oversight over the work. Finally, the Society coordinated with immigrant-serving organizations, so that individuals being released were connected with housing or other forms of assistance.
As mentioned above, specialized courts involve stakeholders within the justice system (judiciary, Crown, legal aid/defence counsel, probation) as well as outside the justice system (e.g., social service providers, supportive community members such as Elders).

Continuity of service delivery. Several case studies included a best practice of continuity of service. Continuity of service can be achieved through continuity of counsel and/or continuity of service through the use of well-documented files. Using either approach, the concept is that continuity of service delivery impacts the efficiency of the justice system and the cost effectiveness of legal aid.

The EDC and Cknúcwentn First Nations Court, which assign counsel to the same court on an ongoing basis so they can assist the same client on more than one appearance, are two examples of continuity of counsel.
Presumed eligibility also facilitates continuity of counsel by assigning files to counsel early in the process.
In Nunavut, the legal aid plan has also begun to assign counsel to files in what is termed “linear file assignment”. The challenge in Nunavut is the long distances to travel for circuit court, which means that some communities will not have circuit court for weeks. As a result, different counsel would often appear for consecutive court sittings. According to key informants, the changes in counsel could lead to more adjournments and a lengthening of the criminal justice process. Legal aid lawyers confirmed having a sense of file ownership, which made them feel responsible for ensuring that the case is ready to proceed. Lawyers also 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.

Enhancing opportunities for early resolution. EDC and presumed eligibility are two of the case study innovations that are intended to facilitate early resolution.

Presumed eligibility enhances early resolution by providing counsel to clients starting at their first court appearance; under the traditional duty counsel services that existed prior to presumed eligibility, matters were often adjourned to allow the accused person to apply for legal aid. This step, coupled with the challenges accused individuals often had in providing needed documentation to show they financially qualified for legal aid, created delays and hampered the court process.
EDC also enhances early resolution by providing services starting at the first court appearance. The EDC program has been able to resolve 15% of the charges facing clients.

One remaining challenge for legal aid and the justice system more generally is that few of these innovations/promising practices are studied to determine if their anticipated outcomes in terms of improved client service and/or system efficiencies are achieved. Some of the projects are not currently tracking their own clients, and court data or other information on client results is often difficult or costly to obtain. As a result, legal aid and the justice system do not consistently engage in evidence-based decision making and improvements. This finding is consistent with the conclusions of the Deputy Minister Advisory Panel on Criminal Legal Aid, which pointed to the need for more performance information on the delivery of criminal legal aid (Legal Aid Directorate, 2014).

Addressing access to justice needs of legal aid clients

The evaluation explored access to justice needs of legal aid clients by interviewing legal aid clients and justice professionals who work with these clients. This section considers legal aid service delivery from the clients’ perspective and the potential consequences to clients if there is no effective provision of legal aid, based on interviews with justice professionals.

Criminal legal aid in the provinces and criminal and civil legal aid in the territories

Justice professionals (defence counsel and PWG members) interviewed for the evaluation confirm the literature that accused persons experience difficulties when handling their own legal matters and experience more serious consequences than accused who have counsel.^{Footnote 35}

The majority of defence counsel interviewed pointed to a number of challenges and barriers faced by legal aid clients that limit their ability to represent themselves, such as low education levels, alcohol and other substance misuse, mental health issues, and past trauma. In addition, their personal situations (e.g., poor housing, unemployment, homelessness) make it challenging for them to assist their counsel in preparing their defence or to demonstrate the stability necessary to be granted bail or to receive alternatives to incarceration, such as conditional sentences, probation or alternative measures.

Justice professionals emphasized the complexity of the justice system and the fact that unrepresented accused persons often cannot effectively represent themselves. They noted various common legal consequences that are experienced by unrepresented accused persons, including not being aware of available defences, as well as not understanding, and therefore not presenting relevant information for their defence. Many of the justice professionals believe the unrepresented accused persons are more likely to plead guilty simply because they want the matter resolved and may not fully understand the consequences of a criminal record.

The evaluation also explored the unique access to justice needs of legal aid clients in the territories. Key informants emphasized that the availability of legal aid is essential for reasons unique to the territories. Although clients in the territories face many of the same challenges experienced by other legal aid clients (e.g., socioeconomic disadvantages, mental health issues, alcohol and other substance misuse, trauma), these challenges are compounded by the relative lack of other social services and legal resources available. The legal aid plans, through the integrated AJAs, provide legal representation as well as assistance from the Aboriginal courtworkers and public legal education. According to key informants, the integrated nature of the agreements allows legal aid plans to respond to community needs in a more holistic way. The legal aid plans can determine how best to utilize Aboriginal courtworkers and what public legal education is necessary, so that resources can be shifted accordingly. The structure of the AJAs was considered by these key informants to facilitate the ability of legal aid plans to address access to justice needs in the territories.

Client interviews confirmed many of the points raised by criminal justice professionals. Of the legal aid clients with criminal law issues, many said that if they had not received assistance from legal aid, they would have pleaded guilty to the charges, and the others thought their only option would be trying to represent themselves. However, many clients cited a lack of knowledge about the legal system as a reason for not being able to handle their legal issue without the assistance of counsel. They mentioned that they did not have enough education or feel comfortable speaking for themselves, which would have made it difficult for them to represent themselves. None reported that they had the financial ability to hire counsel, and many did not believe they had the ability to even borrow funds. Some respondents reported that they would have needed to sell assets to afford counsel.

Clients were positive about the services they received from legal aid. Many clients commented that the legal aid services they received helped them to navigate the court system and that counsel explained their legal options. Almost all clients considered their experiences with legal aid to be somewhat or mostly positive and indicated that they were treated with respect, the information/advice they received was helpful, counsel understood their situation and provided them with options on how to handle their legal issues. Although all respondents thought that their experiences with legal aid were positive, some noted that they would have preferred to have more and earlier contact with their lawyer before their court appearance.

I&R legal aid

Key informants (PWG and I&R counsel) mentioned that the complexity of the refugee determination system coupled with other factors — such as potential language barriers, claimant experience of trauma/emotional/psychological distress, and mistrust of government institutions — are reasons why refugees and immigrants need the assistance of counsel. I&R counsel in particular noted that the initial interviews with claimants conducted by the IRCC are substantive, and answers provided by the claimants can be used against them in the later IRB hearing. This makes having counsel at the earliest stages important for the client’s case. In addition, I&R counsel said that the tight timelines of the new system create pressures on the claimants. They have found that clients deteriorate emotionally or mentally while preparing for the hearing, which can make the hearing not go well, even with counsel present. They also commented that the tight timelines make it very difficult to address clients’ psychological and mental health needs, so that they can present better in the hearing room. At the very least, counsel can ensure that the evidence to support the claim is presented as clearly as possible.

I&R counsel and PWG key informants gave several reasons about the importance of immigrants and refugees having access to legal counsel:

When they proceed without counsel, they typically do not provide a coherent narrative.
The Basis of Claim form used for refugee claims is complex, so even a high functioning English speaker who is not in crisis would have difficulty navigating it.
Refugees do not know what should be included in the narrative, as they do not know what is needed to show that they are a refugee protected under the UN Convention on Refugees. They usually include irrelevant information and omit relevant information
Immigrants and refugees need counsel to help them gather the appropriate kind of corroborating evidence.
Documentation to assist refugees with preparing their claim, such as the online country-specific information linked to the IRB National Documentation Packages, is mainly available in English.
Counsel help them prepare for the hearing, which is important given the vulnerabilities of this client group.
The potential impact for refugees of an adverse decision includes deportation, which could place them at personal risk of persecution or torture if they were to be returned to their home country.

There were early concerns that legal aid plans would have difficulties responding to the accelerated timelines for scheduling RPD hearings that are part of the new refugee determination system. These new timelines were thought to potentially make it more difficult for lawyers to be in place for refugees at their RPD hearing. RPD data on representation generally demonstrate that the ability of the larger justice system (including legal aid) to meet representation needs is reflected in the high rate of refugee claimants with counsel. As seen in Table 8, the proportion of unrepresented RPD finalized claims went down from 13% in 2011 to 8% in 2015.

Table 8: Rate of representation in the Refugee Protection Division finalized cases (by calendar year)
Counsel representation	2011		2012		2013		2014		2015
Counsel representation	Finalized Cases	%	Finalized Cases	%	Finalized Cases	%	Finalized Cases	%	Finalized Cases	%
Represented	28,878	87%	24,715	87%	17,557	87%	17,118	89%	14,571	92%
Unrepresented	4,406	13%	3,630	13%	2,547	13%	2,061	11%	1,185	8%
Grand total	33,284		28,345		20,104		19,179		15,756

Source: Data supplied by the IRB.

Although representation rates have increased, some I&R justice professionals expressed concerns that without an increase in the tariff, the quality of the representation will deteriorate as more junior counsel will handle I&R legal aid cases, and gaps will be filled by non-governmental organizations and community organizations with little to no legal training. I&R justice professionals said that this can sometimes be detrimental to the person’s claim, as errors can be made in completing the forms (e.g., omitting relevant information).

I&R counsel strongly believe that without the benefit of legal representation, more negative decisions would result.

In the client interviews, the I&R legal aid clients all reported that they would not have been able to afford counsel as they did not have a job or any funds to pay for counsel. They believe that they would have had to proceed without representation and expressed concern about how the process would have been without legal aid. They reported that they did not understand the system or how to present their case. All of the interviewed I&R legal aid clients felt treated with courtesy and respect by their counsel.

4.3. Performance - Demonstration of Efficiency and Economy

The Treasury Board Secretariat’s 2009 Policy on Evaluation defines efficiency as production of “a greater level of output ... with the same level of input or a lower level of input with the same level of output”, and economy as the achievement of expected outcomes using the minimum amount of resources required (Treasury Board of Canada Secretariat, 2009). Applying these definitions to the Program, an analysis of its efficiency and economy considers the ability of the Program to effectively manage its resources and the degree to which the legal services provided are efficient.

4.3.1. Economy

A primary focus of the Program is ensuring that funding under the contribution agreements with the provinces and territories is provided according to the terms of the agreement in a timely fashion. As shown in Table 9, a comparison of planned-to-actual contribution expenditures shows that the Program is meeting that goal. The major areas where there are variances are in COCFP and PSAT cases, which is expected. It is difficult to estimate what costs may be incurred for these cases in advance, given their complex nature and the uncertainty about the number of new cases that will arise each fiscal year. In the context of these cases, lapsed funds or the reverse (expenditures that exceed budgets) do not reflect on the management of the Program, but are indicative of the unpredictable and high cost nature of these cases.

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 36} 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 Operating Review, the Deficit Reduction Action Plan, travel caps, and budget and staffing freezes.

Table 9: Legal Aid Program: Budget and actual expenditures (in millions of $)
	Budget	Actual	Variance	Budget	Actual	Variance	Budget	Actual	Variance	Budget	Actual	Variance
	2012-13			2013-14			2014-15			2015-16
Funding components (contributions)
Criminal legal aid in provinces and criminal and civil legal aid in the territories	112.39	112.39	0	112.39	112.39	0	112.39	112.39	0	112.39	112.39 ^{Table note viii}	0
I&R	11.50	11.50	0	12.00	12.00	0	12.00	12.00	0	12.00	12.00	0
COCFP	1.65	2.90	(1.25)	1.65	1.65	0	1.65	2.51	(0.86)	1.65	1.57	0.08
PSAT (including IRPA Division 9 cases)	2.88	1.81	1.07	2.88	1.28	1.60	2.88	1.98	0.90	2.50	1.58	0.92
Total – Contributions funding	128.42	128.60	(0.18)	128.92	127.32	1.60	128.92	128.88	0.04	128.54	127.54	1.0
Program administration ^{Table note ix}
Salary	0.79	0.70	0.09	0.81	0.82	(0.01)	0.84	0.82	0.02	0.80	0.77	0.03
Operations and maintenance ^{Table note x}	0.38	0.14	0.24	0.43	0.19	0.24	0.42	0.18	0.24	0.46	0.20	0.26
Sub-total	1.17	0.84	0.33	1.24	1.01	0.23	1.26	1.00	0.26	1.26	0.97	0.29
COCFP (cases managed by LAD) ^{Table note xi}	0.10	0.35	(0.25)	0.10	0.44	(0.34)	0.10	0.12	(0.02)	0.10	N/A	N/A
Total – Program administration	1.27	1.30	(0.03)	1.34	1.25	0.09	1.36	1.09	0.27	1.36	1.19	0.17
Grand total	129.79	129.79	0	130.36	128.77	1.59	130.38	130.02	0.36	130.0	N/A	N/A

Sources: Final claims and the Departmental Financial System (provided by the Program).

Table note viii

For FY 2015-16, the actual contributions are estimated, as the final claims have not been submitted yet for that fiscal year.

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Table note ix

Accommodation and benefits are not included.

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Table note x

The Program uses its operations and maintenance funding to cover COCFP expenditures that are in excess of the budget for COCFP cases managed by LAD.

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Table note xi

For COCFP (cases managed by LAD), the actual expenditures shown are the net amounts paid by the Department after it has recovered costs from other government departments.

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4.3.2. Efficiency

Operational efficiency

Operational efficiency considers how well inputs are being used and converted into outputs. For the Program, this means the proportion of the Program resources used for administration. From 2012-13 to 2015-16, administrative expenses equaled 0.8% of the total contributions funding (criminal legal aid in the provinces, criminal and civil legal aid in the territories, I&R, COCFP and PSAT). In other words, for every $1 in federal funding distributed to the jurisdictions, less than one (1) cent was spent on administering the Program. This result matches the 2012 evaluation of the Program (0.8%) and is similar to other contributions programs managed by the Department.^{Footnote 37} It is beyond the scope of this evaluation to conduct a comparison of operational efficiency of the Department’s contribution programs, as this would require a detailed analysis of the levels of administrative support required by the different programs. What the evaluation of the Program can conclude is that the 0.8% efficiency ratio (salary and operations and maintenance costs as a portion of contribution dollars awarded) appears to be reasonable.

Allocative efficiency

Allocative efficiency of the Program considers whether the resources used to achieve outcomes were reasonable. To understand the efficiency of the Program, the context in which it operates is important in order to appreciate the cost drivers of legal aid.

Legal aid cost drivers. Key informants emphasized that the cost of both criminal and I&R legal aid is not just a function of demand. This is evident in the rising costs of legal aid despite its generally flat or even declining demand. Key informants provided several reasons for this.

Changes in legislation and/or actions taken by other justice stakeholders that affect the cost of legal aid. For criminal legal aid, recent criminal justice legislation has increased the number of people falling within legal aid guidelines (likelihood of loss of liberty) and reduced the willingness of defendants to plead guilty and negotiate matters with the Crown, which has caused more matters to go to trial. In particular, key informants pointed to legislation that results in more serious sentences — such as mandatory minimum penalties, the reduced access to conditional sentences, and the sex offender registry — as types of legislation that make it more likely that accused will want to go to trial. The new legislation has also increased costs because to properly represent its clients, legal aid is funding appeals to challenge the legislation. The activities of other justice stakeholders also have an effect on legal aid costs, such as:
- the increased use of dangerous offender applications that legal aid plans have to address for their clients;
- the increased use of breaches and administrative offences that create more demand for legal aid representation;^{Footnote 38}
- changes in police investigation practices, such as greater use of informants, wiretaps, etc. which increase the cost for mounting a defence due to the amount of disclosure, the complexity of the legal issues and the length of trials when these investigative techniques are used;
- changes in Crown or police charging practices where more charges per information are being laid; and
- increased resources for police and Crown, without considering what resource needs this will create for legal aid.
Increasing case complexity. This is related to the changes in legislation and actions of other justice stakeholders, but the complexity of cases is seen as increasing the cost per certificate. The types of increased complexity most often mentioned were the volume of disclosure and the number of pre-trial motions and charges.
Legal aid plans’ attempts to respond to economic realities. Some plans have not increased their FEGs or their tariff rates for many years; for some, there have not been increases for close to a decade. Although some plans have increased their FEGs, all plans are under pressure to keep their guidelines reasonable so that there are not large numbers of low-income individuals who are ineligible for legal aid and who cannot afford counsel. In addition, plans are under pressure to increase their tariff rates, so lawyers do not increasingly refuse to handle legal aid certificates.
Justice system innovations. Several key informants noted that innovations like specialized courts, while being a positive development, take more time per client.
Disbursements. The costs for expert witnesses, translators and travel costs have increased substantially over the last few years. The increase in travel costs particularly affects legal aid plans that have circuit locations located in remote fly-in communities.

Clients can also contribute to the cost of providing legal aid services. This is particularly the case for clients who have multiple barriers that affect their ability to participate in their defence (e.g., alcohol and other substance abuse, trauma, mental health issues, homelessness). Although legal aid plan expenditures might not be affected, the cost of these clients is borne by counsel who have to spend more time with these clients in order to effectively represent them.

Indigenous clients also have unique needs, given the effects of residential schools and other features of colonialism. The Supreme Court of Canada, in R. v. Gladue, [1999] 1 S.C.R. 688, found that lower courts must consider an Indigenous offender’s background in sentencing. As a result, courts now accept Gladue reports, which outline mitigating factors to be considered in sentencing Indigenous offenders. Funding Gladue reports is an additional cost for legal aid plans. Based on key informant and case study interviews, legal aid plans cannot fund reports in all situations where they are relevant. Although some plans provide additional funding for Gladue reports — Ontario’s legal aid plan has Gladue block fees to provide additional funding to lawyers who have Indigenous clients — other plans do not have additional funding or are finding it insufficient to meet their needs. For example, British Columbia’s legal aid plan had a Gladue report disbursement pilot project that provided funding to pay for an expert to write a Gladue report. However, this funding is reportedly limited and not sufficient to meet the need for Gladue reports.

For I&R legal aid, the trends are similar to criminal legal aid.

Legislative changes. Key informants commented on the legislative changes adding cost and complexity. Several examples were given:
- New legislation can give rise to Charter challenges, which are typically very costly cases to pursue. The reform of the refugee determination process has led to Charter challenges, and some of these cases were funded by legal aid plans.
- The new refugee determination system includes a new appeal division for cases (Refugee Appeal Division, or RAD). This addition has increased the cost to legal aid, not only because of the additional level of decision making possible with the RAD, but also because of the need to engage in litigation to clarify the RAD’s role (e.g., to determine the standard of review to be used by the RAD in reviewing cases). In addition, the court decisions on the standard of review for the RAD mean that submissions can now include new evidence, which adds to the complexity and level of effort required by counsel.
- Claims often proceed through multiple stages of the refugee determination system, such as admissibility hearings at the Immigration Division, hearings of the refugee claim before the RPD, and the potential of claims going to the RAD or to the Federal Court for judicial review.
- The shorter timelines under the new system are challenging for counsel, as there is less time to gather the documentation needed to support the claim.
Actions of other stakeholders. Legal aid is a reactive system as it has to respond to the actions of other justice system stakeholders and has limited ways to influence what is done, despite the cost implications for legal aid.
- Under the current refugee determination system, IRCC (formerly Citizenship and Immigration Canada) has intervened more frequently in claims before the RPD, which has made these claims more complex and adversarial.
- The expectations of the RPD are considered to have increased in terms of the type of evidence necessary to support a claim. As a result, claimants are expected to have more documentary evidence available (and translated), in addition to witnesses or witness statements from the refugee’s country of origin. Key informants (PWG and I&R lawyers) commented that it can be very challenging to gather this information under the shorter timelines of the new process.
- The federal government has pursued appeals to the RAD and there are more judicial reviews than under the previous system, which translates into increased costs for legal aid.
Complexity of cases. PWG and I&R lawyers believe the complexity of cases has increased, in part due to the legislation and the actions of other stakeholders, as well as the demographic of the refugees. Some I&R lawyers noted that there are more refugee-producing countries, which means that cases are more diverse and require counsel to become knowledgeable about the situations in more countries.
Legal aid plans’ attempts to respond to economic realities. As with criminal legal aid, the FEGs and tariffs have been raised by some plans to try to respond to meeting the economic realities; however, I&R lawyers interviewed said that the tariff rates and block fees are simply not realistic for I&R legal aid in some of the provinces that offer I&R legal aid. For example, in British Columbia, the hourly rate of $83 has been the same for more than a decade, and its erosion is reflected by market rates that are now between $175–$400 an hour for I&R lawyers. In addition, the time for preparation for one client is set at 16 hours, when the actual time to prepare was estimated as closer to 25 hours by some of the interviewed counsel. As a result, senior I&R lawyers will more often decline to take a legal aid case, according to key informants.
Disbursements. The costs for translators and expert reports (e.g., psychological assessments) have increased substantially over the last few years, and the need for translators has increased due to the importance of documentary evidence to support the claims.
Clients less able to contribute to their cases. Under the previous system, RPD hearings did not occur until the individual had been in Canada for close to a year. As a result, refugee claimants had more opportunities to gather financial resources to support their refugee claims. Refugee claimants were also better able to assist their counsel as their emotional state was improved and/or their cultural understanding and comfort level were greater.

Role of legal aid in creating efficiencies in the system

Despite the cost pressures, legal aid plans have continued to innovate to provide service to a greater number of individuals or to improve the efficiency of service delivery, as discussed in Section 4.2.2. PWG key informants and justice professionals believe that legal aid helps ensure the efficient functioning of the justice system; without it, more individuals would proceed without counsel. This would result in more adjournments, more appearances, longer time to resolve cases, and more cases going to trial because the Crown finds it difficult to negotiate with an unrepresented person. Judges and Crown are placed in a difficult position when unrepresented accused persons appear in court: they cannot assist the accused person with their defence, but at the same time they need to ensure a fair process. Justice professionals believe that without legal aid, the backlog in courts would increase.

I&R lawyers noted that counsel’s role in providing a coherent narrative with all of the relevant information saves the IRB time. Otherwise, Board members would have to construct the narrative based on what they have been provided and would likely need to take time in the hearing to reframe the client’s position in order to understand whether there was a legitimate claim. Given the stakes for the claimant, it is important for the refugee determination system to be careful in assessing claims. Consequently, according to I&R lawyers, the involvement of counsel creates efficiencies for the IRB by shortening preparation time for hearings and hearing times.

A recent study conducted for the Legal Services Society of British Columbia considered the potential system efficiencies from enhanced duty counsel services; it can be used as an example of the types of avoided costs to the system that legal aid can contribute. “Making Justice Work: Improving Access and Outcomes for British Columbians” estimated that a 27% reduction in the number of appearances could provide $158,000 in avoided court costs per 1,000 cases, and that a 70% reduction could avoid approximately $420,000 in court costs (Legal Services Society, 2012, p. 27).

Economy of legal aid tariffs

Legal aid is cost effective based on a comparison of legal fee rates.^{Footnote 39} For example, LAO’s average cost per criminal certificate was $1,566 in 2012-13 and $1,738 in 2014-15 (Legal Aid Ontario, 2013, p. 24, 2015, p. 19). This average would include not only the types of activities listed below, but also more expensive activities such as appeals. The only type of comparable matter in Table 10 is bail hearings, which would cost $289 under LAO’s 2014-15 tariff rates (Legal Aid Ontario, 2007, pp. 2–5). LAO’s average cost per I&R certificate was $2,088 in 2012-13 and $2,640 in 2014-15, which is 38% less than the average cost of a refugee protection claim (Legal Aid Ontario, 2013, p. 24, 2015, p. 19).

Table 10: National fee ranges for types of matters covered by legal aid
Types of matters	2012 ($)			2015 ($)
Types of matters	Minimum	Maximum	Average	Minimum	Maximum	Average
Summary criminal offences (one-day trial)	3,385	6,144	3,736	3,256	14,792	5,334
Bail hearings	684	2,164	989	1,181	4,772	1,750
Criminal offences (one-day trial)	2,991	7,524	4,115	4,820	30,957	6,992
Refugee protection claims	N/A	N/A	N/A	3,468	6,474	4,262

Sources: Canadian Lawyer (2012 and 2015). The Going Rate.

Footnotes

Footnote 12

The federal funding for I&R legal aid is more recent, but dates back to 2001.

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Footnote 13

The Federal-Provincial-Territorial Ministers’ Statement on Criminal Legal Aid was reaffirmed in 2012.

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Footnote 14

In April 1985, the Supreme Court of Canada ruled that the Canadian Charter of Rights and Freedoms protects the right of refugee claimants in Canada to life, liberty and security, and that claimants are therefore entitled to an oral hearing in accordance with principles of fundamental justice and international law. Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177, 1985 CanLII 65 (SCC).

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Footnote 15

The issue of potential unmet demand/need for legal aid is addressed in Section 4.2.2.

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Footnote 16

Figure 1 includes fiscal years 2009-10 to 2011-12 to provide a longer time horizon for comparison and to include fiscal years that were not available to be reported on in the 2012 evaluation of the Program.

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Footnote 17

This performance target did not exist until 2013-14.

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Footnote 18

In the Northwest Territories and Nunavut, individuals with criminal charges are presumed eligible for legal aid at court appearances up until the point of entering a not guilty plea. Presumed eligibility does not require any legal aid intake process or assessment of financial eligibility. If a client decides to enter a not guilty plea, he is then required to apply for legal aid to determine his eligibility for ongoing legal representation.

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Footnote 19

Prince Edward Island and Quebec do not report duty counsel assists. Prince Edward Island Legal Aid does not use the term "duty counsel" except for Brydges after-hours telephone duty counsel which was introduced April 1, 2010. The duty counsel statistics gathered for the Legal Aid Survey do not include Brydges duty counsel.

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Footnote 20

Civil law areas covered include human rights, employment law, residential tenancies, and civil remedies for alleged excessive use of force by police.

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Footnote 21

Yukon has seen an increase in civil legal aid applications, Northwest Territories has seen a decrease, and Nunavut has experienced a fluctuation in the number of these applications.

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Footnote 22

Data do not include PRRA applications and finalizations

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Footnote 23

13,500 cases were referred in 2014-15

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Footnote 24

For British Columbia, the sharp decline in the number of I&R legal aid certificates that preceded the reforms to the refugee determination system was due to the very high number of certificates issued in 2010-11 as a result of the Sun Sea arrival in August 2010. The Sun Sea was a ship that arrived off the coast of British Columbia with 492 Sri Lankan refugees. See the case study description in Section 4.2.2 and Appendix D.

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Footnote 25

There are other instances where counsel is appointed pursuant to legislation, such as s. 684(1) of the Criminal Code, or the inherent jurisdiction of the court (e.g., amicus curiae).

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Footnote 26

Calculation of annual inflation rate and effect on federal investment conducted using Bank of Canada information calculator. http://www.bankofcanada.ca/rates/related/inflation-calculator/.

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Footnote 27

The higher proportion of contributions in 2010-11 is explained by the additional federal funds provided to handle the larger than normal influx of refugees that year.

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Footnote 28

Statistics Canada has developed a method of estimating income levels (LICOs) at which families spend 20% points more than the average family on necessities like food, shelter and clothing. This level is considered to indicate families that are in “straitened circumstances”. Statistics Canada. (2015). Low Income Cut-offs. Retrieved on August 4, 2016 from http://www.statcan.gc.ca/pub/75f0002m/2009002/s2-eng.htm

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Footnote 29

The remaining three Atlantic Provinces (New Brunswick, Prince Edward Island, Newfoundland and Labrador) and the three territories were not included in the comparison because specific financial eligibility guideline amounts for these provinces and territories could not be determined for 2010 and/or 2015 as they either do not use strict financial dollar amounts to determine legal aid eligibility or the information could not be found online or in annual reports.

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Footnote 30

Statistics Canada, Income Statistics Division. (2007). Low Income Cut-offs for 2006 and Low Income Measures for 2005 at p. 7. Retrieved on November 17, 2016 from http://www.statcan.gc.ca/pub/75f0002m/75f0002m2007004-eng.pdf

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Footnote 31

For example, Alberta’s guidelines are compared to the LICOs for populations of 500,000 people or more because Calgary and Edmonton both have estimated populations above one million people, whereas Saskatchewan’s guidelines are compared to the LICOs for populations between 100,000 and 499,999 people because Saskatchewan’s largest city (Saskatoon) has an estimated population of 265,000 people (City Population, 2011).

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Footnote 32

LAO’s Client Service Centre is an example of this type of service.

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Footnote 33

Aos, Miller, & Drake, 2006; Downey & Roman, 2010; Gutierrez & Bourgon, 2009; Koehler, Humphreys, Akoensi, Ribera, & Lösel, 2013; Latimer, Morton-Bourgon, & Chrétien, 2006; Mitchell, Wilson, Eggers, & MacKenzie, 2012; Mitchell, Wilson, & MacKenzie, 2006; Shaffer, 2006, 2011

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Footnote 34

One early feature of the initiative was legal aid lawyers and Crown counsel meeting on Sundays to review the cases that would appear in remand court on Mondays. Interviewees agreed that these meetings were very effective. One respondent noted that the Crown and legal aid had developed plans of action for 50–60% of the individuals that had been remanded over the weekends; over the course of seven court days during those two weeks, about 53 remands were avoided. This feature did not continue after two weekends due to human resource issues experienced by Legal Aid Saskatchewan.

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Footnote 35

Department of Justice Canada, 2004; Daoust, 2011; Hann, Meredith, Nuffield & Svoboda, 2002a, 2002b.

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Footnote 36

The Program uses its operations and maintenance funding to cover COCFP expenditures that are in excess of the budget for COCFP cases managed by LAD.

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Footnote 37

For example, the Youth Justice Services Funding Program and the Intensive Rehabilitative Custody and Supervision Program of the Youth Justice Initiative had administrative costs of less than 1% of total expenditures (Department of Justice Canada, 2016b).

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Footnote 38

The Justice System Costs of Administration of Justice Offences in Canada, 2009 (Department of Justice Canada, 2013) discusses the overall criminal justice system costs of Administration of Justice Offences (AOJOs) in Canada and estimates the costs associated with police, court, prosecution, legal aid, and corrections from AOJOs committed by both adults and youth. The dollar amounts stated in the report are determined using data from the CCJS and are an estimate of the criminal justice system costs of AOJOs in Canada in 2009. The report found that the expenditures associated for AOJOs that were incurred by the criminal justice system totaled $729,440,541; of that $49,169,468 were costs estimated to be incurred by legal aid.

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Footnote 39

National comparisons of legal aid tariffs and private bar counsel rates are difficult because the legal aid tariff structures vary substantially across jurisdictions, and national information on private bar counsel rates is not extensively available. Canadian Lawyer is the only publicly available resource and has its limitations, as its survey is based on those lawyers who subscribe to the magazine and responded to the survey. The sample sizes are small, so results should be interpreted with caution.

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Date modified:: 2022-05-13