Evaluation of the Legal Aid Program

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4 Findings

4.1 Relevance

4.1.1 Continued Need for Federal Legal Aid Program

Federal Responsibility

The federal government has funded legal aid for over four decades, reflecting its recognition of the continued need for the Program.^{Footnote 6} This longstanding commitment reflects not only the continued need for legal aid, but also the public interest that underlies it, which is found in documents that define Canadian federalism.

• Under the Constitution Act, 1867, criminal justice is a shared federal-provincial-territorial responsibility. The federal government has authority for criminal law-making and criminal procedure (Section 91) and the provincial and territorial governments are responsible for the administration of justice (Section 92).
• The Canadian Charter of Rights and Freedoms contains provisions that reflect 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. Courts have held that there is a Charter right to counsel if it is necessary for a fair trial. As a result, the court can order federally funded defence counsel in situations where an accused cannot afford counsel, is not eligible for legal aid, and where the proceedings are complex and there is a likelihood of imprisonment.^{Footnote 7}
• The federal government retains authority for civil law in the territories given the federal responsibility for the territories.
• Under the Constitution Act, 1867, immigration is a shared federal-provincial responsibility. The federal government enacts laws related to I&R matters, sets the volume of immigrants and refugees, and handles enforcement, while the provinces determine access to benefits, such as social assistance and other services for immigrants and refugees.

Ongoing Need

The ongoing need for legal aid to provide legal representation and advice to economically disadvantaged Canadians is demonstrated by the volume of applications for legal aid services in criminal legal aid in the provinces and territories, civil legal aid in territories, and I&R legal aid (see Table 5).

In the area of criminal legal aid, while applications decreased by 7% between 2016-17 and 2018-19 (the last year for which there is complete data), there are still approximately 300,000 individuals applying for criminal legal aid annually. This decline in applications is due to a variety of factors, including the crime rate in the jurisdiction; its economic circumstances which may contribute to under-employment and unemployment; and the (in)ability of the legal aid plan to adjust its financial eligibility guidelines over time. In contrast to criminal legal aid, applications for civil legal aid in the territories rose by 22%.

Applications for I&R legal aid increased by 44% between 2016-17 and 2019-20. This was due primarily to an increase of applications in Quebec and Ontario (120% and 57% increases, respectively) between 2016-17 and 2017-18. Total I&R applications were relatively stable between 2017-18 and 2019-20, although there were variations at the provincial level.

Due to the pandemic, the courts were not operating at all or at reduced capacity for much of 2020; therefore, the number of criminal and civil (territories) legal aid applications in FY 2020-21 is expected to decline substantially. However, the decline is expected to be temporary, as the pandemic’s impact on the economy will likely result in more individuals qualifying for legal aid. A similar trajectory is expected for I&R legal aid applications. At the start of the pandemic, the number of refugees declined precipitously, which impacted application volumes. Once travel restrictions ease, there is concern that there will be an influx of refugees.

It is important to note that legal aid application data underestimate the volume of actual need for legal representation among economically disadvantaged Canadians. This underestimation is partly due to the fact that for the provinces, the statistics on the number of applications do not capture individuals who may be eligible but do not apply. The territories are in a unique situation, as most individuals qualify for legal aid but many clients are not required to make legal aid applications under their guidelines for presumed eligibility.^{Footnote 9}

Public Interest

Legal aid serves the public interest by providing legal assistance to economically disadvantaged Canadians and thereby, ensuring the fairness of the justice system. Socio-economic indicators indicate continued need for legal aid. While the proportion of Canadians classified as low-income has declined slightly between 2015 and 2018, there remain 7% to 12% of Canadians (depending on the measure) living in poverty.^{Footnote 10} In addition, the proportion of Canadians classified as low-income will likely have increased in 2020-21 due to the coronavirus pandemic and the resulting increase in unemployment.^{Footnote 11} The vulnerable groups that legal aid serves, such as low wage workers and recent immigrants, have been disproportionately affected.^{Footnote 12}

Legal aid also serves the public interest by providing access to justice for particularly vulnerable populations. Vulnerable or marginalized populations also continue to be overrepresented in the criminal justice system.

• Indigenous people represent 4.5% of the adult population of Canada but comprise 30% of admissions into correctional facilities in 2018-19.^{Footnote 13} Approximately 15% to 20% of Indigenous people in federal correctional facilities attended residential schools.^{Footnote 14}
• Of individuals who had contact with the police, those with a mental health or substance use disorder were four times more likely to be arrested.^{Footnote 15}
• Studies show that most inmates in federal correctional facilities have mental health or substance use disorders.^{Footnote 16}
• At least half of persons in custody have experienced some form of childhood abuse (sexual, physical, or emotional).^{Footnote 17}

Key informants emphasized the role of legal aid in providing access to justice to low-income individuals who often have other challenges (e.g., mental health, addictions, trauma, or literacy) that make it difficult for them to navigate the justice system and represent themselves in court. By providing legal representation, legal aid helps prevent miscarriages of justice and supports fairness in the justice system, which is a core Canadian value as enshrined in the Charter. As some noted, legal aid helps to “level the playing field” for individuals who are often marginalized and disadvantaged. In this way, legal aid supports equality and inclusion.

Legal aid also contributes to the public interest in an efficient justice system, as, without it, the system would have more unrepresented individuals who are not well equipped to handle their cases, which would create delays. Judges would also be faced with having to ensure that unrepresented individuals understand the process, while not helping the person advocate for themselves.

4.2 Effectiveness

4.2.1 Federal Contribution to Support Service Provision

Supporting current demand for services

The Department has set two performance targets for the Program in its Departmental Results Report (DRR) that are intended to demonstrate that the Program is providing “Canadians in contact with the justice system have access to appropriate services enabling a fair, timely and accessible justice system”.^{Footnote 18} Based on the available data from legal aid applications and duty counsel assists from provincial and territorial Statement of Final Claims, the Program is generally meeting these two performance targets.

For two of the three years for which Statement of Final Claims are available for all jurisdictions, the number of approved criminal applications exceeded the DRR target of 270,000 approved full service applications.^{Footnote 19} In 2017-18, the number of criminal applications was slightly below the target, which reflects the declining crime rate mentioned in Section 4.1.1. In addition, while the number of applications has decreased over time, the proportion of approved criminal legal aid applications has remained fairly stable (between 81% and 85%), which is also an indication of the legal aid plans’ ability to maintain access to appropriate services. See Figure 1.

In terms of duty counsel assists in criminal matters, the number is trending upwards (12% over four years). In the most recent two years, the number of assists has exceeded the DRR target of 1,000,000 duty counsel assists. In addition, it is likely that the number of duty counsel assists came substantially closer to the target in the other years, as some legal aid plans keep data by persons assisted rather than the number of assists. The increase in duty counsel assists is for adults, as youth duty counsel assists have declined substantially, reflecting the decline in youth crime.^{Footnote 22}

It is important to note that these statistics provide a measure of legal aid plans’ provision of and access to appropriate service to economically disadvantaged Canadians. However, it should be noted that the statistics do not include all individuals that do or could receive legal aid services. For example, the number of applications and the proportion of applications accepted do not account for situations where legal aid plans may pre-screen individuals for eligibility and not require an application, or where individuals are presumed eligible. In this way, the number of Canadians receiving appropriate services is undercounted. However, as noted in Section 4.1.1, the statistics do not capture individuals who may be eligible but do not apply. As a result, unmet need for legal aid services is not captured in these statistics.

Contribution Funding for Criminal Legal Aid in Provinces and Territories and Civil Legal Aid in the Territories

Funding Increase

One of the most significant changes from the last evaluation of the Program is the increase in the federal contribution. Prior to 2016, the federal contribution had not increased since 2003-04. Through Budget 2016, the federal government announced a funding increase (for criminal legal aid in the provinces, and criminal and civil legal aid in the territories) of $88 million over five years, starting in 2016–17. This amount included a phased increase to the base funding (see “Additional criminal” in Figure 2) and $2 million annually to support innovations ($1.9 million to provinces and $0.1 million to the territories).^{Footnote 24} Effective 2021–22, the federal government has committed to continuing the $30 million increase for an ongoing annual total of $142.4 million for criminal legal aid in the provinces and criminal and civil legal aid in the territories. Overall, legal aid funding increased by 19% from 2016-17 to 2020-21.

Key informants reported that the increased legal aid funding in Budget 2016 was much needed and helped legal aid plans. The new funding formula, which makes part of the federal funding dependent on demand and population demographics, also received positive comments. However, because federal legal aid funding is provided to the consolidated revenue fund for each province and territory, and is not earmarked for legal aid, legal aid plans did not necessarily receive the full benefit from the funding increase or the new formula. Of the nine jurisdictions that have complete Statement of Final Claims data for FYs 2016-17 to 2019-20, four had increases in their provincial contributions (British Columbia, Saskatchewan, New Brunswick, and Nova Scotia), while others showed decreases in the provincial contributions, ranging from 2% in Manitoba to 23% in Ontario.^{Footnote 25}

While the federal contribution has increased, the level of the contribution as a proportion of total legal aid eligible expenditures remains lower than desired by provincial and territorial governments and legal aid plans. However, the contribution’s importance to maintaining the current level of service delivery was acknowledged.

As shown in Figure 3, while the proportion of the federal contribution has increased slightly, it remains below 30%.

Key informants were unanimous that, if the federal funding were withdrawn or substantially reduced, many legal aid programs would have to drastically cut services, which would go beyond family and civil legal aid and would also impact criminal legal aid. In addition, legal aid plans would likely have to tighten financial eligibility guidelines, causing more people to be ineligible. Some provincial and territorial governments might be more willing and capable than others to address shortfalls; however, this would result in even greater inequalities in access to legal aid across jurisdictions. An increase in unrepresented individuals in the justice system would create delays, cause miscarriages of justice, and erode the Canadian values of having a fair and accessible justice system.

Innovations and Other Service Enhancements

While federal legal aid funding contributes just over one quarter of the total shareable expenditures, the base funding and the innovations funding are intended to provide some of the financial support for promising innovative practices in legal aid service delivery.

While the innovations funding is new, many key informants noted that the legal aid plans have been, over the years, consistently engaged in the development and implementation of innovative practices. Innovation has been driven in large part by the need to manage an increasing workload and costs at a time when financial resources are not keeping pace. The 2016 evaluation report documented a number of innovations that had been undertaken by legal aid plans between FY 2012-13 and FY 2015-16.^{Footnote 27}

During the period covered by the current evaluation, legal aid plans have continued to innovate and enhance their services. While it is impossible to attribute directly specific innovations or service enhancements to the increase in federal or the innovations funding, the federal contribution does assist legal aid plans in being able to undertake these activities. As some key informants noted, while the additional money for their jurisdiction was not substantial (particularly for innovations), it enabled the legal aid plans to improve some aspects of service delivery or their operations that they would not have been able to do without the additional funds.

Some key informants pointed to the benefits of having a specific funding amount attached to innovations. Not only has the innovations funding enabled the Legal Aid Program to provide specific support for innovations, but it has encouraged provincial and territorial governments to leverage the federal funding for additional investments in innovations. While there was limited evidence of leveraging, as noted above, some jurisdictions increased their legal aid funding. In addition, by having a portion of federal funding tied to innovations, the Legal Aid Program was also able to receive reporting on the innovations undertaken by plans, which provided the LAD and PID with a deeper understanding of these types of legal aid innovations.

Under the funding agreements, the jurisdictions were expected to report on “the nature of criminal legal aid innovations implemented that target and/or enhance services for vulnerable populations, modernize processes using technology, enhance business practices, and/or support improved data collection and performance measurement”.^{Footnote 28} As noted above, the innovations reported on by legal aid plans cannot be directly attributed to the federal funding or the innovations funding specifically, but the reports indicate the ongoing commitment of legal aid plans to innovation.

As shown in Table 7, approximately 50 innovations each year were reported between FY 2017-18 and FY 2019-20. When considering unique innovations that did not appear in multiple years, legal aid plans reported a total of 126 innovations.

Based upon a review of the Statement of Final Claims, the types of innovations were classified into three main categories: general service enhancements, services for vulnerable populations, and information technology/information management (IT/IM). An overview of each innovation type is provided below (the number in parentheses is the number of unique innovations reported between 2016-17 and 2019-20). Specific examples, supplemented with information from key informant interviews, case studies, and journey mapping are included in Appendix B.

• General service enhancements (n=67) includes improvements in service delivery processes or staff capacity to promote greater access to services, improved quality of service, or greater efficiency. Several jurisdictions expanded services to weekends and new geographic areas, increased financial eligibility limits, expanded duty council services, and introduced efficiency measures to provide more timely access to service and reduce time in the court system.
• Services for vulnerable populations (n=31) includes changes in service delivery to improve access to services or the quality of services, and service outcomes for specific vulnerable populations. Jurisdictions implemented a variety of innovations that included providing assistance in specialized courts to individuals with substance abuse or mental health issues, and funding or creating resources to assist with Gladue reports^{Footnote 30} or cultural assessments so that the justice system takes into account a person’s relevant background. In addition, these innovations offered cultural-competency training to staff, and collected better information on marginalized clients so that services can be better tailored to meet their needs, among others.
• IT/IM (n=28) includes modernization of infrastructure or information management to increase access to information (for the public or for service providers), improve online access to services and/or digital data collection. Several jurisdictions modernized information databases, introduced or updated websites for program information, introduced online application processes, or enhanced the data being collected on applicants and clients. This modernization was particularly valuable for smaller jurisdictions where the needs were great but funding was lacking for IT/IM projects, such as Prince Edward Island, Nova Scotia, New Brunswick, Saskatchewan, Northwest Territories, and Yukon.

Contribution Funding for Immigration and Refugee Legal Aid

Key informants noted that the federal funding for I&R legal aid has been crucial to maintaining services due to an increase in demand and/or substantial provincial budget cuts.

As discussed in Section 4.1.1, applications for I&R legal aid have increased, particularly between 2016-17 and 2017-18. PWG key informants attributed the increase to the international situation (i.e., the level of conflict and human rights abuses in various countries) and more irregular border crossers coming from the United States to Canada to seek asylum.^{Footnote 31} Due to the fluctuating demand and limits of available funding,^{Footnote 32} legal aid plans offering I&R legal aid reported nearly having to pause their I&R legal aid services at different points in time over the last four years.

To respond to the I&R legal aid situation, the federal government provided funding top-ups and announced additional funding in Budgets 2017, 2018 and 2019. In Budget 2019, the federal government committed to $49.6 million over three years for I&R legal aid.^{Footnote 33}

The I&R legal aid situation did not stabilize as, in April 2019, the Ontario government cut Legal Aid Ontario’s funding overall by $133 million and required that only federal funding be used for any new I&R legal aid certificates.^{Footnote 34} The federal government responded in August 2019 with an additional $26.8 million announced in the Economic and Fiscal Snapshot 2020 for I&R legal aid for FY 2019-20, of which Ontario was to receive $25.7 million.^{Footnote 35} However, due to the impact that COVID-19 had on legal aid volumes and expenditures, only $20.3 million was required based on revised provincial forecasted budgets, which totalled $48.53 million for 2020-21. According to key informants, had the federal government not provided the additional funding, Legal Aid Ontario would have had to stop issuing new I&R legal aid certificates.^{Footnote 36} The service disruption was expected to increase the number of refugee claimants appearing before the Immigration and Refugee Board of Canada (IRB) without legal representation, which would negatively impact the efficiency of the IRB.^{Footnote 37}

Key informants from legal aid plans credited the Legal Aid Program with stepping up to assist them when funding pressures have occurred. Because the Program does not have extra contribution funding, it has to make off-cycle budget requests for additional money (top-ups) and, once the request is approved, make the necessary Treasury Board submissions. This cycle of needing to make yearly requests for additional funding for I&R does not support the long-term sustainability of I&R legal aid. The past four years have demonstrated that the current level of ongoing I&R funding in the contribution agreements ($11.5 million per year) is not sufficient. Figure 4 reflects the additional infusion of funding that I&R legal aid has required from FY 2016-17 to FY 2019-20.

The FY 2019-20 situation is also reflected in Figure 5, showing that the federal contribution as a proportion of shareable I&R expenses rose from 42% in FY 2016-17 to 94% in FY 2019-20. Given the current situation, key informants believed that, if federal funding ended for I&R legal aid, I&R legal aid would cease, as it is unlikely that the provinces would step in and provide the necessary funding. In fact, provincial key informants commented that I&R legal aid is considered an area of federal responsibility.

A few provinces that do not receive I&R legal aid funding noted that they require I&R legal aid in their province, but they have not sought funding under the federal I&R legal aid component because the federal contribution that they would receive would not be sufficient to cover their needs.

Overall, legal aid has a significant impact on the IRB, as well as the Federal Court, as counsel help those processes operate more smoothly. Key informants indicated that having counsel ensures that the merits of an individual’s case are not affected negatively by lack of preparation or proper presentation. In fact, a 2011 study highlighted the importance of competent counsel in successful outcomes for refugee claimants.^{Footnote 38} In Budget 2019, the federal government also recognized the importance of competent legal representation for parties before the IRB.^{Footnote 39} In the absence of legal aid, service organizations that assist refugees would likely become overburdened by trying to assist their members who are appearing before the IRB, and would have to divert some of their resources from job training assistance or assistance in finding housing.

State-Funded Counsel Funding

The federal funding for state-funded counsel ensures the integrity of the Canadian justice system. In state-funded counsel cases, the proceedings involve federal interests and, should counsel not be provided, the public interest would not be served fairly and equitably, consistent with Charter rights, and the criminal justice system would be brought into disrepute. According to key informants, the absence of state-funded counsel would likely impact prosecutorial decisions, and a major backlog of cases in the justice system would likely occur. In cases with unrepresented individuals, the court is likely to order a stay of proceedings to request state-funded counsel for the accused, which creates delays and inefficiencies in the system. Similarly, if trials were to proceed with unrepresented individuals, more time, energy and resources would be required from all justice stakeholders involved, including the Officer of the Peace, the judge, and court administrators. Key informants agreed that, if state-funded counsel were not available, something else would need to be created to fill the gap, as they are critical to the proper functioning of the justice system.

Federal contributions for the state-funded counsel cases cover 100% of the legal service costs (fees and disbursements) of defence counsel, plus a 15% management fee to the provincial or territorial governments or legal aid plans that agree to manage these cases on behalf of the federal government. For some cases, the LAD directly administers state-funded counsel cases.

As shown in Figure 6, the most common state-funded counsel cases relate to instances where a court orders the Attorney General of Canada to provide funded defence counsel in cases where the individual does not qualify for legal aid, lacks the funds to hire a lawyer, and the case is so complex that without counsel, the accused would be denied a fair trial.^{Footnote 40} These cases are generally not only complex, but also the consequences to the accused if found guilty are incredibly serious (e.g., cases related to terrorism or narcotics trafficking).

The other most common state-funded counsel cases involve Criminal Code Section 486.3 (appointing counsel so that the accused will not cross-examine certain witnesses, such as witnesses under 18 years of age, or the complainant in cases involving certain violent offences) and Section 684 (appellate judge determines accused should have counsel in the interest of justice). In addition, courts can use their inherent jurisdiction to order the 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, so that appointed counsel can review top-secret documents. They can also provide the court with legal arguments on whether the documents should be disclosed or whether they are of such a sensitive and potentially injurious nature that they should not be disclosed.

The state-funded counsel caseload for cases managed by provincial or territorial governments or legal aid plans increased between 2016-17 and 2019-20 from 137 to 250, with annual expenditures ranging from a low of $3.65 million in FY 2018-19 to a high of $4.15 million in FY 2016-17. State-funded counsel cases managed by the LAD constitute a small number each year, ranging from 18 to 31 over the evaluation period, with expenditures well under $500,000 each year (ranging from $98,174 to $428,009).

4.2.2 Access to Justice for Vulnerable Populations

Profile of Legal Aid Clients

Legal aid clients are among some of the most vulnerable Canadians, as they have few to no economic resources; are usually less educated; and typically have experienced mental illnesses, substance abuse, trauma, or other personal situations that impact their ability to respond to their legal situations. They are also disproportionately Indigenous. Most key informants reported that the profile of legal aid clients has not substantially changed, with the exception of a few areas. In particular, there has been a decline in the number of youth criminal legal aid clients (related to the decline in the youth crime rate) and more criminal legal aid clients with substance use issues related to the opiate addiction epidemic.

The LAD has attempted to collect data on the profiles of legal aid clients by requesting demographic information in the annual Statement of Final Claim forms that each jurisdiction provides. There are limitations with this data, and it is hampered both by a lack of resources/capacity among certain legal aid plans as well as by relying on individuals to self-identify.^{Footnote 41} For this reason, other sources were used for the statistical profile, where available.

Indigenous Clients

The overrepresentation of Indigenous people in the criminal justice system, as well as systemic racism and the legacy of colonialism, impact the social and economic outcomes for Indigenous people.^{Footnote 42} As a result, the proportion of legal aid clients who are Indigenous continues to be larger than their proportion of the population generally. Recent statistics for the legal aid plans in jurisdictions that together constitute the majority of the First Nations and Métis population^{Footnote 43} demonstrate the high numbers of legal aid clients who self-identify as Indigenous:^{Footnote 44}

• 31% of Legal Aid BC clients (criminal legal aid only) – 5.9% of the population are Indigenous
• 42% of Legal Aid Saskatchewan clients (all clients) – 16.3% of the population are Indigenous
• 66% of Legal Aid Manitoba clients (all clients) – 18% of the population are Indigenous
• 20% of Legal Aid Ontario clients (criminal legal aid only) – 2.8% of the population are Indigenous.

Racialized Groups

Few jurisdictions report on the number of clients who are racialized groups. Legal Aid Ontario reports that Black Ontarians comprise 14.3% of its criminal legal aid clients while constituting 4.7% of the provincial population.^{Footnote 45} For jurisdictions that provide I&R legal aid, these clients are often racialized groups. In addition, because I&R legal aid clients are primarily refugee claimants, they are by definition a highly vulnerable group who have experienced trauma.^{Footnote 46} As key informants pointed out, immigrants and refugees may struggle to understand not only the Canadian judicial process, but also Canadian laws that may differ substantially from their home country’s system. They are also navigating a complex legal system in a language they may not speak.

Legal Aid Plan Services for Vulnerable Populations

The evaluation found that legal aid plans are adapting and expanding services in a variety of ways to reach vulnerable populations and address unique client needs. Some of these service enhancements and innovations are described above in Section 4.2.1.

Some jurisdictions have clinics which specialize in certain areas of the law (e.g., immigration and refugee law, youth law, civil law, criminal law, family law). Other clinics deal primarily with particular population sub-groups (e.g., clients in rural areas, who are elderly, students, parents whose children have been removed, disabled persons, those living with HIV/AIDS or FASD, those who have mental health issues, and those whose mother tongue may not be English or French). Key informants in these regions viewed these dedicated clinics positively for several reasons, including that they allow for the specialization and concentration of counsel, build client confidence in the expertise and competence of counsel, and support the development of effective networking and referrals between offices. Dedicated offices also allow for more specialized and targeted support to marginalized and vulnerable groups. As is evident from the types of clinics listed, not all are in areas that receive federal funding.

Most jurisdictions in Canada (with Nunavut being the sole exception) have some type of specialized, therapeutic court. These courts provide a multi-disciplinary criminal justice and therapeutic response that includes court-supervised treatment as an alternative to the traditional criminal justice system. The intention is also to address issues such as substance abuse, mental health, or trauma that underlie the criminal behavior. Currently, legal aid plans support the following specialized courts in their jurisdiction by offering full legal representation and/or duty counsel services: Mental Health/Wellness Courts, Drug Treatment Courts, First Nations/Gladue Courts, and Domestic Violence Courts. In addition to the therapeutic courts, many jurisdictions offer a separate Youth Court for young offenders and/or diversion programs, which the legal aid plans also support through full legal representation and/or duty counsel services. For both specialized courts and diversion programs, the involvement of legal aid improves access to justice as, without legal aid assistance, individuals may not be aware or understand these options. Examples from the journey mapping sessions and the youth justice case study are provided below.

• All three legal aid plans that participated in the journey mapping sessions supported Wellness Courts in their jurisdictions. There were some service differences, such as using a dedicated staff Mental Health Court lawyer (Nova Scotia Legal Aid), staff counsel but not dedicated solely to work in the Wellness Court (Northwest Territories Legal Aid Commission), and staff duty counsel services with private bar full representation services (Legal Aid Manitoba). In addition, while Nova Scotia Legal Aid and Legal Aid Manitoba require individuals to apply for legal aid, individuals are presumed eligible for legal aid in the Northwest Territories. In Nova Scotia, the Mental Health Court lawyer can directly refer individuals to Wellness Court while the Crown or other stakeholders are more directly involved with referrals in the other jurisdictions. However, the main services provided are similar: serving as a resource, liaising with other justice stakeholders, assisting with any legal issues that arise (e.g., breaches or the need to change conditions), and attending check-up meetings on client progress.
• Three legal aid plans described their support of youth diversion programs — Nova Scotia Legal Aid, Legal Aid Manitoba, and Yukon Legal Services Society — and for all three, the legal aid plan is much less involved than in the traditional court process or specialized courts. When the diversion occurs before the individual is charged, the legal aid plan is not involved at all. However, if the decision to divert the matter occurs post-charge or post-plea, the legal aid plan’s role consists in identifying appropriate individuals and liaising with the Crown. Once in a diversion program, the legal aid plan typically plays a minimal role, but there may be opportunities to provide youth with additional guidance and support as they navigate the diversion process (Yukon). In addition, the legal aid plan may seek a status update and use that information when liaising with the Court. It will ask for adjournments as necessary to allow more time to complete the plan (Nova Scotia).

Individuals living in remote and rural regions face a number of interconnected barriers to which legal aid plans have attempted to respond.

• A client’s ability to access physically legal aid offices or the court varies across the country and can present a significant barrier. This is particularly true in regions where there are few legal aid offices, where the territory covered is quite large, and where there is a lack of transportation infrastructure. For example, in fly-in communities where court might be held once a month, it can be challenging to make sure that the client has a good understanding of the process and the case in one day. To mitigate this barrier, some regions have increased the number of service areas (e.g., New Brunswick) while others have sought to make the application process more accessible by phone or online (e.g., Nova Scotia) and tried to conduct a significant amount of casework by telephone (Northwest Territories). This latter mitigation strategy has become all the more prevalent in response to the COVID-19 pandemic, which has seen many legal aid offices and courts close down temporarily. However, as detailed further in the following point, phone and internet connectivity can themselves present barriers.
• As noted by most key informants, reliable access to technology, broadband, and internet can create significant challenges for both clients and legal aid. For example, it can be difficult to reach people (and this in a timely manner) or to send documents electronically for a client to sign. Further, an individual may not be eligible for electronic monitoring if there is a lack of landlines in their community. Various legal aid plans have sought to mitigate this challenge by trying to meet people in person, by visiting communities on a regular schedule, or by working with community organizations that serve the same clientele to try to better track individuals.

Quite a few legal aid plans have specific services or processes in place to support Indigenous clients, who can have a significant lack of trust in a judicial system that is seen as a colonial structure. Many have allocated funding for the writing of Gladue reports and have provided Indigenous cultural awareness training to their staff. Several also have recruited Indigenous or Inuit counsel and staff. Eight plans provide either full legal representation, duty counsel services, or expanded duty counsel services for First Nations/Gladue Courts in their jurisdictions. Two of the more unique examples of enhanced services provided to support Indigenous clients are below.

• Legal Aid BC has worked with the BC Provincial Court on the development of alternative sentencing models whereby Indigenous Elders are actively involved in the decision-making process. In addition to making the judicial process more rehabilitative than punitive, it has allowed the Indigenous community to be more engaged in the process and thus have more confidence in the justice system.
• Legal Aid Alberta has dedicated phone lines and reserved call-in days for Indigenous communities, and has provided cultural awareness training to staff who handle these calls.

The lack of trust in the justice system extends to other racialized groups as well. An example of how a legal aid plan has responded is Nova Scotia Legal Aid’s creation of an African Nova Scotian Social Worker position who ensures that African Nova Scotian clients receive culturally specific supports and services. This Social Worker is involved at various points in the court process to assist clients, particularly to help finding services and programming to use at the show cause (bail) hearing to support a client’s release, providing support to clients who are having a cultural assessment, and connecting clients to services as part of the Wellness Court or post-conviction restorative justice.

Potential Unmet Needs

Client sub-groups who are underserved across the country include those living in rural and remote areas, Indigenous populations, racialized groups, and those who do not meet legal aid’s financial criteria. Other underserved sub-groups include youth, those with physical and mental disabilities (i.e., who may face accessibility-related challenges), those with FASD, those who are illiterate, and immigrant populations. In addition, access to criminal legal aid services is more widespread and consistent than is access to civil legal aid services because of their relative funding amounts. Consequently, most individuals who appear in family court are self-represented and, as many of them are women, this would be another potentially underserved group.

Legal aid plans are paying attention to ensuring that services are adequate for clients with different backgrounds. However, available human and financial resources have impacted the ability of legal aid plans to improve service to these clients. With increased resources, legal aid plans could do such things as commission more Gladue reports, operate more community clinics in rural areas and on reserves, and provide increased translation services. They could also increase their financial eligibility guidelines (FEGs), which establish the financial levels for assessing whether an individual is eligible for legal aid, so that more individuals are eligible for legal aid.

As with the last evaluation report, financial ineligibility remains the most common reason that criminal legal aid applicants are refused 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 access to legal aid, although this is also a means to manage demand for services and, therefore, expenditures. Those who can adjust their guidelines are increasing access to justice. Key informants indicated that for most plans, the FEGs are now set so low that many low-income individuals facing the likelihood of imprisonment can neither afford lawyers nor qualify for legal aid.

Comparing the FEGs to other economic measures demonstrates whether the financial eligibility requirements are responding to the economic environment. The evaluation updated the analysis undertaken in the last evaluation for the jurisdictions where the required information was available. Three jurisdictions (Ontario, Quebec, and Yukon) have increased their FEGs well above any of the economic measures used (consumer price index [CPI], average hourly earnings, and minimum wage), which means that a higher proportion of lower income individuals are eligible for legal aid. Similarly, British Columbia is the only jurisdiction where the FEG is above Low-Income Cut-Offs for most family sizes, which means that more families living below the Low-Income Cut-off are eligible for legal aid. The results are provided in Appendix C.

4.2.3 Emerging Issues and Legal Aid Service Delivery

Criminal Legal Aid

A number of issues were identified as having had an impact on the provision of criminal legal aid, including legislative changes. The removal of pre-emptory challenges when empanelling juries has added costs to legal aid cases. Additional costs are also associated with mandatory minimum penalties, as individuals are more likely to take the matter to trial. In addition, these legal provisions have added to the cost of legal aid, in part due to lawsuits related to the loss of pre-emptory challenges and mandatory minimum sentences. Criminal Code changes related to additional protections to victims, while positive for the criminal justice system, can add to the complexity and lawyer time required for these cases.

Recent court decisions have also had an impact on legal aid, most notably the Jordan decision.^{Footnote 47} In this decision, the Supreme Court of Canada established rules for the length of time from a person being charged to trial, and held that for most cases, the trials should occur within 18 to 30 months from the time the person was charged. This decision creates more pressures on legal aid in order to find the resources (staff or private bar) to ensure that legal aid can support these timelines.

The increasing complexity of criminal cases due to the length of criminal investigations, and the number of wiretaps and other surveillance methods, are all contributing to an increased volume of disclosure as well as the need for disclosure applications. In addition, there are more Charter applications which also add expenses to legal aid, as Charter legal issues add to the complexity and length of files. It is a continually evolving area of the law, which requires time for legal aid staff lawyers to maintain expertise, which is an expense for legal aid plans. While these complex criminal cases and Charter applications constitute a relatively small number of legal aid cases, they are substantially higher cost.

Finally, investments in other areas of the justice system, such as in policing or Crown prosecutors that may result in more individuals being charged, add to the expense of legal aid and often occur without a corresponding increase in legal aid funding.

Legal Aid in the Territories

In the territories, there are the ongoing challenges in maintaining staffing levels and retaining staff (especially senior staff), which in turn affects the functioning of the legal aid plans. Unique situations in the territories has also created issues, such as the housing crisis in Nunavut that has created demand for legal aid services related to housing issues; and the fluctuations in the mining industry have impacted the demand for legal aid, particularly for employment law, in other territories.

Other challenges mirrored those of the provincial legal aid plans, including the increasing complexity of criminal cases because of changes to the law, and increased costs of transcripts and travel. The changes to the law mentioned were Criminal Code changes to impaired driving and sexual assault, as well as the Cannabis Act. The changes add volume to the legal aid caseload and/or increase legal aid costs because additional time is required to handle these cases.

Immigration and Refugee Legal Aid

For I&R legal aid, the increasing volume of applicants, as well as the potential influx of refugee claimants who may come to Canada when travel restrictions ease post-pandemic, were cited as the major issues that will emerge over the course of the coming months/years (see Figure 7). According to key informants, the IRB has continued to have a backlog of refugee claims, and the trend towards faster processing of refugee claims is reversing, with longer delays in scheduling hearings in the Refugee Protection Division of the Board. These trends are projected to continue, particularly given the expected increased demand.

Part of the increased demand is due to the number of irregular border crossers and the increasing backlog of pending claims (see Figure 8). Key informants noted that a new procedure to address the demand involves an enhanced pre-removal risk assessment (PRRA) and an interview with a representative of Immigration, Refugees and Citizenship Canada, rather than providing irregular border crossers access to the IRB. This approach is intended to manage the demand while ensuring that individuals are not returned to dangerous situations. However, it should be noted that some legal aid plans that provide I&R legal aid (e.g., Legal Aid Alberta) do not cover PRRA and for those that do (e.g., Legal Aid Ontario), the increased use of PRRAs could add costs to I&R legal aid delivery.

Impact and Response to the Coronavirus Pandemic

Service Delivery

COVID has had an impact on the overall justice system more generally, which has affected legal aid and its delivery. The evaluation explored these changes to determine whether any innovations may remain or would be beneficial to retain post-COVID.

Due to COVID, the courts shut down for a period of time, which led to a decrease in applications and new legal aid clients. When the courts began operations remotely using technology for video or teleconference hearings, legal aid plans had to adapt quickly to these new processes. Remote court sessions did make connecting with clients challenging for legal aid plans, as their initial contact is usually through duty counsel at the courthouse. Key informants (both legal aid plan and provincial representatives) commented that legal aid plans had adapted well to the situation by taking steps to connect counsel to clients as efficiently as possible. In particular, some plans did the following:

• assigned duty counsel dates in advance to streamline court appearances and decrease the number of adjournments
• used a phone-in or website service for quick applications for duty counsel assistance
• worked to ensure that counsel could appear via teleconference or video-conference for court (all plans where possible) — this move to video-conference hearings has proved challenging for some plans who are having to upgrade their information technology capabilities to enable staff counsel to appear remotely
• designated a lawyer to appear as agents for the private bar and staff counsel to adjourn matters, conduct bail hearings, and enter guilty pleas in adult and youth criminal court to reduce the need for attendance of multiple counsel
• put in place a system so lawyers can consult with clients who are in correctional institutions by teleconference
• developed systems to provide immediate assistance to detained accused, such as evening and overnight bail services, where lawyers provide after-hours assistance by teleconference with the goal to reduce the time that accused stay in remand when a consent order and/or bail plan can be put in place

Legal aid plan representatives also mentioned a number of administrative changes that occurred during the pandemic:

• reduced contact by having applications completed over the phone or online exclusively or primarily
• introduction of new tariff items to support court changes (for example, providing an extra hour for criminal duty counsel to engage with the Crown to respond to the court holding pre-trial conferences on all criminal matters)
• removal of some requirements for applications to make virtual applications simpler (e.g., signature requirements or proof of cash income)
• elimination of financial eligibility determinations for certain clients, including all incarcerated individuals, which was done so those in remand could receive counsel right away since jails were potential COVID hotbeds
• creation of measures to pay lawyers expeditiously in recognition of cash flow issues that the pandemic would cause (e.g., simplified procedure for verifying private practice fees accounts [QC], allowing lawyers to interim bill on block fee certificates, reduced time period for payment from 30 to 14 days)

In terms of whether any of the changes might become permanent, most key informants stated it was too early to tell. Some expressed the hope that with the success of remote working, legal aid plans could reduce their office space. Similarly, it would be beneficial to continue to expand legal aid intake by telephone and online as this reduces barriers for some to apply. However, it was noted that intake cannot be moved entirely to these methods due to technology (Wi-Fi and cell coverage) issues in remote and rural areas. These issues of accessibility were well known already, but came into sharper focus with the pandemic.^{Footnote 50}

It was also noted that retaining some of the system changes that were introduced would also be beneficial. In particular, the use of audio or video-conferences for bail hearings and other court appearances has been beneficial as it saves time and resources in transporting the accused to court. Similarly, the ability of legal aid staff counsel and private bar to meet with clients using video-conferencing also saves time and resources.

Unintended consequences of some of the changes need to be assessed further. For example, whether, and the extent to which, bail hearings via video-conference has an effect on whether the accused is released from pre-trial detention. The concern is that seeing the individual in custody, which is the case when the bail hearing is conducted via video-conference, would unduly influence the judge. Other unintended consequences include the additional time required to track down clients and communicate with them, as criminal legal aid clients (in particular) often meet counsel in court, which is not occurring during the pandemic. For the territories and provinces with northern circuits, the pandemic has highlighted the system’s unique vulnerabilities, such as fly-in court locations and, for the territories, the reliance on lawyers from the south who would need to fly in and self-isolate.

Several legal aid plan representatives noted that they have committees or working groups looking at the changes to service delivery that are due to COVID to determine lessons learned and best practices that should be maintained post pandemic.

Funding

One of the legal aid plans’ revenue streams are the contributions from the legal profession (e.g., law foundation funding and levies which may include interests from lawyers’ trust accounts, revenues from investments, etc.). While not expected to have a lasting impact, Ontario, Manitoba, and British Columbia will experience sharp declines in these revenues in 2020 and 2021 due to the pandemic. In FY 2019-20, Legal Aid Ontario received 22% of their revenues from legal profession contributions, followed by Legal Aid Manitoba (9%) and Legal Aid BC (6%). This will also affect other legal aid plans that receive a small percentage of their revenue from this source (e.g., the remaining plans reporting this information received between 0% and 3% of their revenues from the law foundation.)

4.2.4 Legal Aid Policy and Program Development

The PWG brings together representatives of Justice Canada, provincial and territorial governments, and legal aid plans for information-sharing and policy development. The PWG typically has one annual in-person meeting that occurs in the fall. In addition, the PWG meets via teleconference on an as-needed basis throughout the year. While some sub-committees are permanent (e.g., I&R Sub-committee), the PWG also creates sub-committees as needed. During the evaluation period, sub-committees that were in operation included the I&R and Policy and Research sub-committees. The Policy and Research Sub-committee was formed in early 2016 to examine the development of a new distribution formula for the five-year contribution agreement with Justice Canada for the 2017-18 to 2021-22 period. Based on the documents provided, the Policy and Research Sub-committee did not continue beyond 2016. Most recently, a sub-committee, the Contributions Sub-committee, was established in 2020 to discuss the distribution formula and the other terms in the contributions agreement in preparation for the next round of funding agreements. In 2021, the Information Technology Sub-committee was formed to discuss technological issues, including capacity gaps and strategies to address them.

The LAD serves as the PWG’s secretariat and its handling of its secretariat role was uniformly praised by PWG members. Key informants noted that the LAD works with a Planning Sub-committee of the PWG before each annual meeting to identify which topics are of interest to PWG members. This collaborative approach to setting the PWG agenda was appreciated by members.

Information sharing

Almost all PWG key informants commented that the PWG serves an important role as a channel of communication and information-sharing about promising practices, emerging issues, and challenges affecting legal aid in Canada. Previously, the PWG was thought to focus more on funding issues, and the shift to broader discussions was attributed, in part, to the Budget 2016 increases. These key informants placed a high value on the PWG as a forum where they can freely share ideas and learn from each other’s experiences, including how they have each responded to shared or similar pressures. Conversations about high level, national issues were noted as particularly useful, such as:

• service delivery issues (e.g., the use of technology, the pros and cons of the different legal aid models [staff, judicare, mixed] in different settings);
• the federal objectives for legal aid as they relate to access to justice;
• justice issues and trends (e.g., specialized courts, Indigenous justice issues, explanations of changes to the Criminal Code);
• the federal funding allocation formula; and
• most recently, the challenges of and responses to the pandemic related to service delivery and its impact on non-government funding (i.e., from law foundations).

In terms of information sharing, PWG key informants consider the working group to be more useful for smaller legal aid plans that do not have the capacity to conduct research or engage in policy or program development (e.g., develop pilot projects). The smaller plans benefit by having access to that national expertise on issues that impact legal aid; learning from the experience of larger legal aid plans helps them innovate. The smaller plans noted that although the PWG has established a network with legal aid plans which allows them to reach out and ask questions of larger plans, they also share information with the larger plans that may assist them as well, such as information on Indigenous and northern issues. In addition, the LAD has brought in guest speakers on topics of interest at PWG meetings that particularly benefited smaller plans that would not otherwise have had access to such presentations.

Some PWG key informants desired more information sharing between provincial and territorial governments and the federal government, or thought that the generalized nature of the information and research being shared did not lend itself well to the unique local realities of each jurisdiction. The discussion of outcomes and other over-arching policy issues were noted as being challenging given legal aid plans’ different contexts, structures, and level of independence from the provincial and territorial governments.

Networking

The PWG is considered a useful forum for fostering relationships among legal aid plans and provincial and territorial government representatives. As these representatives often have a much broader mandate than legal aid, the PWG provides them with the opportunity to learn from other jurisdictions’ experiences as well as hear more from their own legal aid plans. According to provincial and territorial government key informants, these discussions at the PWG meetings help jurisdictions anticipate issues, and the PWG provides a network that they can reach out to for advice.

Some PWG key informants addressed the potential overlap or duplication of the Association of Legal Aid Plans (ALAP) and the PWG. Those informants who commented were evenly divided between those who considered the two forums to be somewhat duplicative and those who considered them to be complementary. Those who considered them complementary noted that while the legal aid plans have ALAP as a network, the PWG’s value added is connecting the plans and provincial and territorial government representatives with their federal, provincial and territorial government counterparts.

With respect to ALAP, a few key informants appreciated LAD’s participation in the ALAP’s Finance Sub-committee. This has increased LAD’s understanding of the operational context and administrative and financial terminology used.

Research

The LAD develops a research plan in consultation with the PWG members, although it was noted that few provide specific comments or suggest directions for the research agenda. The research plan incorporates federal objectives, but there is also a desire for meaningful research for the provincial and territorial governments and plans.

PWG key informants valued the LAD’s research products. It was noted that if the federal government did not provide statistics related to legal aid, none would be available, as the provincial and territorial governments do not have a dedicated policy unit for legal aid and access to an equivalent of Statistics Canada or the Research and Statistics Division of Justice Canada.

The research that was mentioned the most often by PWG key informants was the Definitions Project. This research was intended to standardize the definitions used in the annual Legal Aid in Canada report so the data are more comparable and reliable. As this is related to performance measurement, it is discussed in more detail in Section 4.3.1.

Other research provided by the LAD on national trends or emerging issues assists legal aid plans with their funders, according to key informants. They reported that the LAD is very responsive to requests for this kind of information. In addition, key informants appreciated PWG’s research on issues related to service delivery. Examples given were research on the availability of cell phones to low-income individuals and a project on prevalence of guilty pleas among Indigenous people.

Some of the research projects that have been conducted are complex and will require substantial time and resources should follow-up studies be undertaken. Two examples included firstly the 2018 feasibility study for measuring the impact of legal aid and expanding the 2017 legal aid microdata linkage feasibility study. The second study assessed the feasibility of linking legal aid client registry information to the data housed in Statistics Canada as a means to gain socio-demographic information on legal aid clients, as well as information on legal aid in the criminal justice system.

A few key informants suggested that future research could focus on practical solutions to emerging issues and challenges. For example, research on a pilot project that has succeeded or failed would help other plans know whether to undertake a similar pilot project or how to improve potentially upon the one that was undertaken by another plan. Another example would be research that provides a rationale or business case for legal aid, such as legal aid’s social return on investment.

Policy Role

The most significant policy work in the last five years has been related to the development of a national I&R legal aid program that would extend to all jurisdictions. This work is intended to address the current situation where I&R top-up funding is required annually.

Potential Improvements

A few PWG key informants provided suggestions for improvements.

• The PWG discussions are too often about legal aid plan operations and should place greater emphasis on policy development work. For example, the PWG could focus more attention on determining the Federal-Provincial-Territorial objectives for legal aid and developing national standards. Among some PWG key informants, there was the desire for at least some separate meetings with the LAD and the provincial and territorial government representatives that would focus on the policy objectives for legal aid.
• These discussions are not always relevant to all participants as larger legal aid plans have very different issues than smaller plans, for example. The sub-committees are considered useful forums for discussing particular topics that may not be relevant to all legal aid plans. There was a desire for the PWG to consider more sub-committees, such as Indigenous or rural sub-committees.

4.3 Efficiency

4.3.1 Management of Contribution Agreements and State-Funded Counsel

One of the Program’s key management goals is to provide funding to provincial and territorial governments according to the terms of the contribution agreements in a timely fashion. A comparison of planned to actual contribution expenditures shows that the Program has experienced some issues with meeting that goal (see Appendix D). This is primarily related to I&R legal aid and the federal government responding to the need for additional funding. This was described in more detail in Section 4.2.1 (see Figure 4).

The other area where there are variances is in state-funded counsel cases (managed by provincial and territorial governments or plans or directly by the LAD), which is expected. It is difficult to estimate in advance what costs may be incurred for these cases, given the complex nature of these cases 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.

The Program lapsed administration (salaries and operations and maintenance) funds in some years due to staff turnover. From 2016-17 to 2019-20, administrative expenses equalled 0.8% of the total contributions funding. 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 2016 evaluation of the Program.

Meeting Service Standards

Of the PWG key informants who responded, most reported that the Program is efficiently administered by the LAD. Overall, the process for submitting claims — the timelines, reminders, payment processing — has gone well. As shown in Table 8, the Program is meeting the service standard for over 90% of its payments.^{Footnote 51} This compares favourably to the percentage of payments meeting the service standard across the Department’s grants and contributions programs in 2019-20 (which was 84%).^{Footnote 52}

Reporting

In terms of the reporting requirements, the Statement of Final Claim form is reviewed annually to ensure that it captures only data that are needed and that supports the Legal Aid in Canada report (see also the performance measurement section below). The LAD/PID work on the Statement of Final Claim form is reported to have resulted in data that are more accurate and comparable, as was also discussed in Section 4.2.4.

However, key informants were divided on the reporting requirements between those finding them onerous and those considering them reasonable. About half commented that they found the reporting requirements of the Statement of Final Claim to be reasonable, and that the LAD was flexible in terms of reporting, demonstrating a willingness to work with legal aid plans that have more limited data collection capacity (due to staffing and technological issues). They appreciated the LAD’s efforts to make the form more user-friendly. However, some of these key informants thought that the new template could still be streamlined so that it is easier to complete. The other half of the key informants consider the claims to have become more onerous to complete with the new forms being more complex and cumbersome. In these jurisdictions, some of the information requested is not available. As a result, some sections require manual data gathering and entry. For this reason, the reporting requirements can be particularly burdensome for the smaller plans. In addition, it was questioned whether the amount of information requested was needed and whether it was of value as the data do not capture the practical challenges of delivering legal aid.

Access to Justice Services Agreements

Key informants noted that the consolidation of the AJAs’ three components and the flexibility it provides has been very beneficial for several reasons. These include the fact that it makes it easier to do the negotiating, planning, and budgeting for the programs all at once, and the fact that legal aid plans are able to organize and deliver their services in such a way that is most efficient for them.

Some key informants mentioned the unique reporting challenges in the North. The territorial plans are small and have technological challenges in terms of inadequate databases and lack of resources for upgrading. In addition, with multiple, geographically distant sites where legal aid is delivered in remote circuit court locations, the territorial legal aid plans face many challenges that impact their ability to track data.

Immigration and Refugee Legal Aid

The current I&R funding formula is generally considered reasonable to properly allocate the funding among the jurisdictions.^{Footnote 53} A few key informants noted difficulties created by the formula being based on past demand, which creates issues when demand fluctuates during a fiscal year. As discussed in Section 4.2.1, the Program has effectively handled funding shortfalls. However, there are issues with the timing of funding. The formula requires data from the first quarter of the fiscal year so the allocation cannot be determined until the second quarter, which does not provide some plans with enough lead time to manage their caseloads against available funding.

Federal funding for I&R, as for criminal legal aid, is provided to the provinces to distribute to their legal aid plans. While provinces can submit interim claims to receive a portion of their funding, some legal aid plans noted that they do not receive funding until the Statement of Final Claims are processed. When provincial funding is not available to make up any shortfall, there is the need for the federal top-up funding. Given the current situation, there is some support for the federal government to directly fund I&R legal aid. A national I&R legal aid program would be more efficient in delivering funding than the current contribution agreements. This would provide adequate and timely funding, and could set national standards.

State-Funded Counsel

The state-funded counsel component is working efficiently and effectively. The LAD was commended for its responsiveness to queries and the support provided to those involved at the provincial and territorial government and plan level in managing the Program, as well as counsel who are funded directly by the federal Legal Aid Program. It was suggested that a form could be used to ensure that when a state-funded counsel case comes to a legal aid plan, they have the information that they need to assist them in making cost estimates (e.g., next court date, name of the lawyer, how long the case is expected to take).

The umbrella agreements are considered to have increased the efficiency of the federal Legal Aid Program, as it does not have to deal with numerous amendments on individual cases. There is some benefit to the provinces, territories and legal aid plans, who are managing state-funded counsel cases. However, it was thought that the main benefit of the umbrella agreements in terms of improving the efficiency of this component is for the Legal Aid Program.

The administrative fees provided to plans were considered sufficient.

Performance measurement

The LAD commissioned reports related to performance measurement, including a feasibility study on how to measure the impact of legal aid, and a follow-up study to assist with identifying common indicators to measure performance outcomes for both criminal and I&R legal aid and to document the availability of relevant data. This performance measurement work is a complex task that requires agreeing to measures across jurisdictions and identifying or collecting data to support them. Examples of work that has continued are piloting a national legal aid client survey and a pilot project in one province to link court data to legal aid data. As a result, this performance measurement data was not available for this evaluation.

The main performance measurement progress identified in interviews is the Definitions Project, whereby the LAD is working with legal aid plans to develop clear definitions (and standardized ones, where possible) for the data collected in the Statement of Final Claim and reported in the Legal Aid in Canada report. Previously, Statistics Canada handled this reporting, which meant that Justice Canada had less direct contact with the legal aid plans regarding the data and had not received civil and family legal aid data in the Statement of Final Claims (excluding I&R matters). With the LAD taking over this performance reporting, the Definitions Project has increased the understanding by all parties of the operational context and administrative and financial terminology used by legal aid plans. The Definitions Project was also considered to have improved the standardization and consistency of the legal aid plan data that is being measured, although it was noted that there are still some inconsistencies and comparisons across plans that must be contextualized, which the Legal Aid in Canada report has done with careful footnotes. The consensus was that this project was worthwhile and PWG members who commented generally reported that they found the data to be helpful.

Some key informants noted that the next step would be to build on the Definitions Project to determine what other data might be helpful. The current data includes volume (numbers of applications, certificates, duty counsel assists), and limited client demographic information. More detailed client profile data and data that might indicate how the federal investment is improving the lives of clients or contributing to a more efficient and effective justice system are not being collected. Difficulties in collecting this data are, in part, due to the challenges in collecting relevant court data. Legal representation data has numerous issues, including that it is not captured systematically, is often overridden so it just reflects the representation at the last court appearance, and does not indicate whether the individual is receiving legal aid assistance. It was also suggested that more detailed data on hours of service provided by type of service would be useful to show the impact of legal aid and how its resources are being used to assist clients.

Some key informants suggested that national standards, which legal aid plans could be measured against, could be developed as a next step. It was acknowledged that collecting additional types of data would be challenging, particularly for smaller legal aid plans that have less capacity in terms of technology and other resources for collecting data. For all legal aid plans, the contexts in which they operate present different challenges that would need to be accounted for in any data collection efforts on impacts and outcomes.

4.3.2 Efficiency of the Legal Aid System

Legal aid remains a cost-effective service when compared to private bar rates charged to clients who are not receiving services on a legal aid certificate (non-legal aid clients).^{Footnote 54} For example, Legal Aid Ontario’s average cost per criminal certificate was $1,750.^{Footnote 55} This average would include not only the types of activities listed in Table 9, but also more expensive activities such as appeals. To provide another example, the Legal Aid BC tariff for bail hearings is $265 per half day for major crimes in Provincial Court and ranging from $371 to $795 for Supreme Court bail applications. Trial rates for the first two half days range from $636 to $1,855 per half day.^{Footnote 56} All are substantially below the amounts indicated in Table 9.

Legal Aid Ontario’s average cost for a typical I&R certificate refugee protection claim (which includes submission of the Basis of Claim and the hearing) was $2,280, which is 43% less than the $4,000 charged by a private bar lawyer for a refugee protection claim, as indicated in Table 9.^{Footnote 57}

Legal aid plans have continued to innovate and enhance their services, as described in Sections 4.2.1, 4.2.2, and 4.2.3. The following examples demonstrate how legal aid plan processes contribute to efficiencies for legal aid as well as for the justice system overall.

• Providing services as early in the process as possible benefits the client, legal aid, and the justice system. For example, expanded duty counsel services, such as evening or weekend duty counsel, enable the defence and Crown to engage in early discussions related to remand and can shorten the period of time that accused spend in remand. Gathering information at this early stage also ensures that counsel involved at later stages can be fully prepared and move the matter forward more expeditiously. This benefits clients but also reduces costs to the justice system. According to a study done by Statistics Canada in 2010-11, the cost of one day in pre-trial custody is approximately $170 versus, according to a study completed by the Ontario Ministry of Finance in 2012, around $5 per day to supervise a person in the community.^{Footnote 59}
• Embracing technology and the digital transformation initiatives occurring across the public service sector have great potential to create efficiencies. Conducting hearings or meeting with clients virtually reduces transportation and other costs associated with travel. Legal aid plans have responded during the pandemic to this need to work virtually. However, this also highlights the need for funding to enable legal aid and the justice system more generally to be able to invest in technology. As noted earlier, justice system stakeholders need to be mindful of the impact of these trends on accessibility for legal aid clients, which would have to be monitored closely given the potential barriers created by the cost and/or coverage of internet and phone services.
• Diversion and specialized courts that remove individuals from the traditional court process can reduce legal aid and system costs. For diversion, legal aid is less involved, particularly pre-charge, and this reduces legal aid case volumes and expenditures. This is demonstrated currently by the decline in the number of applications for youth criminal legal aid as it is thought that the decreased crime rate and the increased use of diversion are both contributing factors.
• For specialized courts, there is evidence of potential cost savings to the justice system due to less incarceration and reduced recidivism.^{Footnote 60} Anecdotally, it is believed that supporting these courts can create additional costs for legal aid as counsel assigned to these courts may have smaller caseloads than other legal aid counsel. Therefore, in supporting these processes, legal aid may incur some efficiency benefits but it may also incur additional costs, which should be viewed in the context of supporting system-wide efficiencies.

The efficiency of the legal aid system must be considered in the larger context of its contributions to justice system efficiencies. Key informants believe that defendants proceed through the system with fewer delays and court appearances and overall less usage of system resources.

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