Evaluation of the Legal Aid Program

Conclusions and Recommendations

5.1 Conclusions

5.1.1 Relevance

The Legal Aid Program is a federal responsibility that continues to serve a public interest and need. The federal responsibility for legal aid is longstanding with over four decades of federal funding and is fundamental to Canadian federalism as reflected in foundational documents, such as the Constitution Act, 1867. The ongoing need for legal aid is in part reflected in the volume of applications but also in the proportion of Canadians who are economically disadvantaged and may need legal assistance in areas of law covered by the Program. This ongoing need also underpins the public interest served by legal aid providing access to justice to particularly vulnerable populations who are often overrepresented in the criminal justice system. By providing legal services to individuals who would otherwise not be able to afford counsel and would experience significant challenges in representing themselves, legal aid supports the fairness of the justice system and helps prevent miscarriages of justice.

5.1.2 Effectiveness

The evaluation found that the federal contribution is critical to maintaining legal aid services. The $88 million over five years increase to the federal contribution for criminal legal aid in the provinces and territories and civil legal aid in the territories announced in 2016 was one of the most significant developments to occur during the timeframe covered by the evaluation. This was the first increase since 2003-04, resulting in an ongoing annual federal contribution total of $142.4 million for criminal legal aid in the provinces and criminal and civil legal aid in the territories. The increase also included financial support for innovative practices to improve services and operations. While the legal aid plans have consistently engaged in innovations and continuous improvement practices as a way to manage increasing workload and cost pressures, the additional funding enabled them to undertake improvements that may have proven impossible otherwise. In some jurisdictions, there was a substantial increase in demand for I&R legal aid and/or substantial provincial budget cuts over the five-year evaluation period. These challenges were addressed by the Program through time-limited funding increases that enabled the legal aid plans to continue providing I&R legal aid services.

The profile of legal aid clients demonstrates that they are among the most vulnerable people in Canada in terms of socio-economic indicators related to financial means, education, and health, which make it difficult for them to navigate the complex justice system. The federal contribution provides access to justice for these vulnerable populations. Despite efforts of legal aid plans to adapt and expand services to reach these populations, there are some unmet needs for those living in rural and remote areas, Indigenous populations, racialized groups, and those who do not meet the financial eligibility criteria. The unmet needs for these groups go beyond legal aid and include the justice system more broadly with the need for new approaches to better address legal issues more holistically.

Many of the same issues noted in the previous evaluation are still affecting the provision of legal aid including legislative changes, court decisions, the complexity of the criminal cases, and investments in other areas of the justice system without corresponding investments in legal aid.

The pandemic tested legal aid plans and the justice system, but both responded with service innovations to manage the crisis, although the pandemic’s full effects on volumes and finances will not be known until the pandemic is over and potentially for years to come.

5.1.3 Efficiency

The Program is well managed and its administrative expenses equalled 0.8% of the total contribution funding, which matches the 2016 evaluation findings. The Program is also considered to have effectively handled the I&R funding issues. Given the need to seek additional funding, there were issues with the timing of the confirmation of increased funding, which did not provide some legal aid plans with enough lead time to manage their caseloads against available funding.

While improved, work remains to be done on reporting and performance measurement. The Definitions Project is considered to have improved the data being collected and resulted in useful information. In addition, the LAD has made improvements in the Statement of Final Claim forms and been supportive of legal aid plans that have more limited data collection capacity. That being said, further improvements could still be made to ensure the data being captured are relevant and further reduce inconsistencies. There are also areas where additional data would be useful to provide information on the delivery challenges and impacts of legal aid services.

Efficiency of the Legal Aid System

The legal aid system provides a cost-effective service when compared to private bar rates and continues to innovate to maintain and enhance its services. Many of these innovations and service enhancements not only create efficiencies for legal aid but also the justice system by supporting initiatives such as specialized courts, 24-hour bail court, and diversion programs. Overall, legal aid supports the efficient operations of the justice system by providing legal assistance and advice to individuals who might otherwise proceed through the system without counsel.

5.2 Recommendations

Based on the findings described in this report, the evaluation offers the following two recommendations:

Recommendation 1: The Legal Aid Directorate, in collaboration with the Permanent Working Group, explore options for a national immigration and refugee legal aid program that would extend to all jurisdictions and include national standards.

Recommendation 2: The Legal Aid Directorate (including the representative from the Policy Implementation Directorate responsible for the Access to Justice Services Agreements) should work in collaboration with the Permanent Working Group to improve performance measurement and reporting. Consideration should be given to improving the consistency of data, including demographic information, and identifying additional data that would be useful for reporting and future program planning.