Evaluation of the Legal Aid Program

Appendix A: Case Study Summaries

Case study – Youth Criminal Legal Aid

Introduction

Youth criminal legal aid was selected as a case study, in part due to interest in the use of diversion for young offenders, but also as it is an area of legal aid for which there is not substantial literature on its delivery or effectiveness. Yukon was selected as a jurisdiction with a higher proportion of youth receiving custodial sentences. The evaluation had hoped to compare Yukon’s experience with a jurisdiction that has a lower proportion of youth receiving a custodial sentence but was unable to obtain the participation of another jurisdiction for the case study.

Overview and context

Youth criminal legal aid is generally understood to include cases that fall under the Youth Criminal Justice Act (YCJA), which governs the treatment of youth aged 12 to 17 years old charged with a crime, including the provision of a separate youth justice system, and an emphasis on exploring alternatives to custodial sentences.Footnote 61

Youth criminal justice cases that appear before the courts are handled by the Youth Criminal Justice Court, while others are handled through alternative methods, including extrajudicial measures.Footnote 62

During the period covered by the evaluation, the number of youth criminal cases before the courts in Yukon has decreased with a corresponding decline in youth criminal legal aid matters. Part of that decline is attributed to the use of diversion.

Findings

Services provided: In Yukon, all youth going through a formal criminal law proceeding under the YCJA are eligible to receive legal aid and approximately 95% use legal aid counsel. In order to reach eligible youth, the Yukon Legal Services Society (YLSS) duty counsel attend every youth court session to provide information on legal aid to youth who are appearing for a matter for the first time or who don’t have a lawyer yet, and to answer any questions that the youth might have. Duty counsel provide the youth with the telephone number for legal aid and counsel will then be assigned to the youth, which is typically a YLSS lawyer assigned to youth matters.

Because of the size of YLSS, their team does not include social workers or client coordinators to help support their clients. In the case of youth legal aid, this is a particularly important limitation, as a large portion of the clients are vulnerable youth who can be difficult to keep track of and thus difficult to support and ensure that they meet all of their obligations. There are additional services available for youth through other service providers in Yukon, such as mental health services and services from a youth or social worker. Many of these services are accessible through the diversion process.

Accessibility: There is an established and fairly effective process in place for legal aid to reach youth who are formally charged in Whitehorse through the duty counsel. There is room for improvement in accessing legal aid services for youth who are not formally charged, or are outside of Whitehorse. Outside of Whitehorse, there is less continuity with clients as legal aid counsel only visit the communities every other month. Youth in the communities also often face the additional challenge that their cases can take longer to proceed through the legal process, since the circuit court does not come to the communities as often as court sessions occur in Whitehorse. The length of time that it can take in the communities can lead to the process being less meaningful for youth. The timing of the court dates could potentially be improved through continuing to use services like Zoom beyond the COVID-19 pandemic, since it would help to hold court in the communities more often. YLSS is also planning on doing more outreach in the communities outside of Whitehorse, and having clinics for specific legal areas (including youth) in these communities.

Promising practices – diversion: In Yukon, youth criminal justice has seen a substantial increase in the use of diversion options that exist in the territory. There are multiple paths for diversion that are possible for youth in Yukon. However, there can be some challenges in accessing diversion options outside of Whitehorse.

Youth can be diverted from the court system by the RCMP, who have options available to them that are alternatives to charging a youth with a crime. This pre-charge diversion is used more frequently with first-time offenders who commit a minor crime. Rather than charge the youth, the RCMP can give a verbal or written warning, and/or provide referrals to connect the youth to social services for counselling.Footnote 63

Once youth are charged, Crown and defence will meet to discuss whether diversion will provide an appropriate resolution. If so, they will refer the youth to the local organization that is tasked with diversion in the local area. In Whitehorse, this is the Youth Justice Panel (YJP), which handles approximately 80 to 90% of youth justice cases in Yukon. In general, the group leading the diversion (which includes a youth probation officer) will try to ensure the youth receives services or supports tailored to their needs; these diversion groups may include Crown and/or defence, police, and other organizations that work with youth.

While many areas covered by the YCJA are now being resolved through diversion approaches, there is a limited involvement for legal aid in these processes. In the last decade, legal aid has become more involved in this panel with a lawyer attending YJP meetings, though they take a relatively minor role since the focus is on the youth and their families, as well as the relevant support providers. However, there may be opportunities for YLSS to provide youth with additional guidance and support as they navigate the diversion process.

Diversion offers many benefits for the youth by connecting them with appropriate services or supports and, if the youth successfully completes all of the conditions, they will not end up with a criminal record. In addition, there can be benefits for victims involved in cases proceeding through diversion, as there are often restorative aspects to the process. Diversion benefits the justice system by holding offenders accountable largely outside of the more expensive court process, and because of the lower likelihood of recidivism. Similarly, diversion reduces the costs for youth criminal legal aid, which benefits the legal aid plan.

Case study – Remand

Introduction

Since 2004-05, in Canada, the average number of adults in remand (i.e., when individuals being held while awaiting trial or sentencing) has been greater than the provincial/territorial adult sentenced custody population. The case study considered the impact of remand on legal aid, the justice system and the accused, and how legal aid plans have approached the issue of remand (e.g., duty counsel services). Two jurisdictions were selected for the case study: Alberta (as a jurisdiction that recently started funding duty counsel in remand court) and Saskatchewan (as a jurisdiction that has also undertaken work to reduce the number of people in remand and the length of time they spend in remand).

Overview and context

The number of individuals in remand was increasing in Canada until 2016-17, but has been decreasing gradually since then, which in part reflects the decreasing crime rate. However, the most recent available data comparing remand to sentenced custody (2018-19) found that per day approximately 70% more adults were in remand (14,778) than in provincial/territorial sentenced custody (8,708). In 2018-19, ten provinces/territories had a higher proportion of remanded adults versus those in sentenced custody. Alberta was among the highest (71% more adults in remand, which tied Nova Scotia and was 1% less than Ontario). Saskatchewan’s remand population constituted 51% of adult in custody.Footnote 64

Key informants from Alberta and Saskatchewan highlighted the effect of COVID-19 on remand in their provinces. They noted that, during the pandemic, the length of time that individuals remain in remand is decreasing. Individuals who have less severe offenses and/or criminal history are being released to decrease the number of individuals in remand to try to reduce the spread of COVID-19.

Findings

Alberta: In April of 2018, funding for the Justice of the Peace Bail Program (JPBP) was announced and launched in three phases, such that the Program was fully implemented across the province by the end of September of that year.Footnote 65 The Program ensures that “all people arrested in Alberta making first-appearance bail applications will have access to defence counsel” in the form of Legal Aid duty counsel,Footnote 66 regardless of their financial situation.Footnote 67 This is referred to as Bail Hearing Duty Counsel, which is a form of duty counsel that provides representation at first-appearance bail hearings to those who are detained by police. According to the Irving Report, that examined Alberta’s bail procedures, only 7 to 10% of people had lawyers during their bail hearings.Footnote 68 Given the introduction of the JPBP, financial eligibility requirements are not considered for people making first-appearance bail applications.

The service is offered 16 hours a day (8:00 a.m. to midnight), seven days a week, by duty counsel lawyers based in Calgary and Edmonton.Footnote 69 These lawyers have access to “high-tech video and audio technology” to talk to clients via a secure electronic system, and can “video conference into the courtroom with their clients”.Footnote 70 The duty counsel lawyers generally adjourn matters and advise clients “how to apply for Legal Aid and to obtain their own representation”.Footnote 71 They also ensure clients are aware of their fundamental rights, including their right to a release hearing within 24 hours of being remanded. In 2018-19, there were 26,710 JPBP hearings and in 2019-20, there were 37,715.Footnote 72

While key informants noted that the Program has resulted in some delays to the system, the Program is generally viewed as positive in ensuring a fair process for all individuals.

Saskatchewan: Two initiatives targeting remand have been introduced in the last five years: the Early Case Resolution Program (ECRP) and the Rapid Remand Response Program (RRRP). The ECRP was introduced by the Saskatchewan government in 2017. The Program has admissions cases for those remanded over the weekend reviewed by a Crown Prosecutor and Legal Aid weekend duty counsel on Sunday. The Program aims “to improve the number of meaningful first court appearances on Mondays”.Footnote 73 The RRRP is the same as the ECRP, but on weekdays, where Legal Aid lawyers and Crown prosecutors choose cases that can be quickly (“more easily”) resolved ahead of bail proceedings to get them done on the same day instead of adjourning the case for two days, as was often done previously.

ECRP and RRRP were introduced to try to resolve a number of files earlier, and therefore get individuals released from remand sooner. A review of the ECRP in Saskatoon in 2017 showed that the ECRP was having a positive effect in reducing the number of individuals in remand. The key informants from Saskatchewan indicated that the ECRP and RRRP have had a positive impact on remand, as those cases are resolved faster and result in less remand time for people.

Both provinces see the value in reducing the use of remand due to its associated costs and potential negative impacts on the accused, but key informants noted the need for and value of remand in certain instances.

Case Study – Immigration and Refugee Legal Aid

Introduction

The case study on I&R legal aid was chosen to provide a description of how I&R legal aid is delivered and what the jurisdictional differences are in terms of services and delivery in the case study jurisdictions. The case study considered the costs, challenges, promising practices and, where possible, the impacts of the availability of I&R legal aid on the justice system and for clients. Two provinces were selected – Ontario and Quebec – to highlight the different approaches to how I&R legal aid services are provided.

Overview and context

Most of the I&R legal aid expenditures go toward refugee protection claims, and there has been an increase in the volume of these claims with a corresponding increase in I&R legal aid applications. The data on Immigration and Refugee Board of Canada (IRB) refugee protection claims shows the increasing volume of claims between 2015 and 2019 and the growing backlog of pending claims from the previous calendar years. The impact of the coronavirus pandemic is reflected in the sharp decline in claims, particularly for finalized claims in 2020.Footnote 74 In addition, there was a spike in late 2016 in irregular border crossers (individuals who cross the Canada-United States border between ports of entry). The increasing volume of I&R refugee claims and its fluctuating nature create issues for legal aid plans in managing demand.

Findings

Ontario and Quebec both have mixed models of I&R service delivery that are primarily judicare based (i.e. private bar counsel on a legal aid certificate). However, they differ in terms of the remaining I&R service delivery. Quebec relies exclusively on staff lawyers for I&R services handled outside of the judicare model (the Immigration Law Legal Aid Office in Montreal and staff lawyers in other legal aid offices). In comparison, Ontario has a much smaller staff complement in its three Refugee Law Offices and has a substantial reliance on community legal clinics, which are funded by Legal Aid Ontario but independent from it. Key informants from both jurisdictions believe that their model for delivery is working well.

The nature of the matters covered by legal aid is different between the two jurisdictions. Quebec offers a full-service experience from start to finish on a file. Ontario offers more limited coverage, although the key informants thought that the coverage was appropriate with the exception of detention reviews, which was seen as a service gap. Ontario currently has a pilot project to address this gap and offer services closer to the duty counsel services provided by the legal aid regime in Quebec.

The tariff structure is also quite different between the two jurisdictions, which also influences the expenditures on I&R legal aid. In Quebec, the tariff is a flat fee for each I&R service, while in Ontario, the tariff sets a maximum number of hours for each service and a tiered hourly rate based on years of experience. Based on the available information, Quebec fees appear to be less for the same or similar services than Ontario, although a direct comparison is difficult given the nature of the tariff structures. However, the difference appears to be lessening when comparing the average expenditure per issued certificate for each fiscal year. This could be due to cost containment measures taken by Ontario as well as a recent tariff fee increase by Quebec.

For both jurisdictions, the main challenge is handling the fluctuating demand for I&R legal aid and the increasing complexity and pressures from changes to the I&R determination system and the IRB’s increasing backlog.

The two jurisdictions have different recent experiences with their provincial governments. In Quebec, if the legal aid budget has been fully used, legal aid offices will continue to represent clients and Justice Quebec covers the cost of the difference. In contrast, in 2019 the Ontario government prohibited Legal Aid Ontario from using provincial funding to cover new I&R certificates. Without the federal government providing additional funding, I&R coverage in Ontario would have been greatly restricted.

Both Quebec and Ontario had promising practices in relation to key desired outcomes: