Evaluation of the Legal Aid Program

Executive Summary

Introduction

The Department of Justice Evaluation Branch conducted the Evaluation of the Legal Aid Program (the Program), which covers fiscal years 2016-17 to 2019-20. The evaluation was completed in accordance with the Treasury Board’s Policy on Results (2016). It examined the relevance of the Program in terms of whether the Program continues to serve public interest and need, the impact of the Program in terms of achieving its intended outcomes, and the value of the federal investment in legal aid in terms of the Program’s efficiency and its contributions to the fairness and efficiency of the justice system.

Program Description

The overall objective of the Legal Aid Program is to promote access to justice for eligible persons and to promote public confidence in the justice system through federal contribution funding to the provinces and territories and/or legal aid plans for legal aid services. The Program has three funding components that are included in the evaluation: Criminal Legal Aid in the Provinces and Territories (and Civil Legal Aid in the Territories);Footnote 1 Immigration and Refugee (I&R) Legal Aid; and State-funded Counsel. The first two components of the Program are cost-shared with the provinces and territories.

Findings

Relevance

The federal 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. The ongoing need also underpins the public interest served by legal aid. Legal aid serves economically disadvantaged Canadians and provides 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 promotes fairness in the justice system and helps prevent miscarriages of justice.

Effectiveness

The Program provides funding for legal aid but is not directly involved in its delivery. The Program outcomes are, therefore, largely about the impact of the federal contribution to legal aid. In terms of effectiveness of the Program, the evaluation did not assess legal aid plan activities but considered how the federal contribution serves to support and enhance the capacity of provincial and territorial legal aid plans.

Federal Contribution to Support Service Provision

The evaluation found that the federal contribution is critical to maintaining legal aid services. One of the most significant developments to occur during the timeframe covered by the evaluation was the increase to the federal contribution for criminal legal aid in the provinces and territories and civil legal aid in the territories. Announced in Budget 2016, the phased increase of $88 million over five years (which included $2 million per year for innovations that ended in 2020-21) was the first increase in the federal legal aid contribution since 2003-04. The federal government has committed to continuing the final year staged increase of $30 million 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.

This additional funding was much needed. In addition to contributing to maintaining the current level of legal aid service delivery, it provided some financial support for promising innovative practices to improve services and operations. Legal aid plans reported 126 innovations over the five-year evaluation period. The reported innovations must be placed into context: particular innovations cannot be directly attributed to the federal contribution; in addition, legal aid plans have consistently engaged in innovations and continuous improvement practices as a way to manage increasing workload and cost pressures for years. However, the additional funding enabled legal aid plans to commence service delivery or operational improvements that they may not have been able to undertake otherwise.

During the five-year evaluation period, there was a significant increase in demand for I&R legal aid in some jurisdictions and/or substantial provincial budget cuts in that area. The Program addressed these challenges by providing top-up funding, additional funding in Budgets 2017, 2018 and 2019, and further funding in August 2019. These increases enabled legal aid plans to continue providing I&R legal aid services, which contribute to the efficiency and fairness of the I&R system.

The federal funding for state-funded counsel also ensures the integrity of the Canadian justice system by providing legal representation in federal proceedings where, if counsel were not provided, the public interest would not be served fairly and equitably.

Access to Justice for Vulnerable Populations

The federal contribution provides access to justice for vulnerable populations. 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. Key informants indicated that there remain unmet needs, despite efforts of legal aid plans to adapt and expand services to reach vulnerable populations. In particular, they mentioned 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, such as greater use of diversion or therapeutic/specialized courts. For legal aid, financial ineligibility remains a major barrier for individuals who are still unable to afford legal counsel yet have incomes that exceed the guidelines. Some legal aid plans have been able to adjust their financial eligibility guidelines to keep pace with other economic measures, such as inflation, but most have not. To address the unmet needs, legal aid plans require the human and financial resources to enhance and expand their services.

Emerging Issues and Legal Aid Service Delivery

Many of the same issues noted in the previous evaluation are still affecting the provision of legal aid and have continued to result in consequences such as increased costs. These include 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 territories face particular challenges related to maintaining staffing levels, high costs related to travel, and particular issues in their jurisdictions, such as the housing situation or the loss of a key employer, which will increase demand for civil legal aid. For I&R legal aid, the main challenge remains the fluctuating demand that includes substantial increases in legal aid applications at particular moments in time, which require infusion of additional funding.

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

Legal Aid Policy and Program Development

The Program supports communication, information sharing and networking through the Federal-Provincial-Territorial Permanent Working Group on Legal Aid (PWG), which brings together Justice Canada, provincial and territorial governments, and the legal aid plan representatives. While the PWG in previous evaluations had focussed more on funding issues, it is now fulfilling its broader mandate as a forum to share ideas and discuss high level, national issues related to legal aid. The PWG is valued as a forum for freely sharing ideas, learning from each other’s experiences, and fostering relationships among legal aid plans and provincial and territorial government representatives.

Efficiency

Management of Contribution Agreements

The Program is well managed. It has provided funding under the contribution agreements in a timely manner, meeting Justice Canada’s service standards for processing claims for over 90% of its payments in most years. In addition, the Program’s administrative expenses equalled 0.8% of the total contribution funding, which matches the 2016 evaluation findings.

It is also considered to have effectively handled I&R funding issues. The timing of the receipt of I&R funding could be improved as legal aid plans find it difficult to manage their I&R services given how late in the fiscal year the allocation is determined. The Program is caught between the need for updated data to assess demand as required by the funding formula, and the desire of plans to know their share of the federal I&R funding earlier.

While improved, work remains to be done on reporting and performance measurement. Key informants were divided on whether the reporting requirements were reasonable or onerous. The Legal Aid Directorate is considered to have made improvements in the Statement of Final Claim forms and been supportive of legal aid plans that have more limited data collection capacity, but key informants believe that further improvements could still be made to ensure that the data being captured are relevant. For performance measurement, the Definitions Project is considered to have improved the data being collected and resulted in useful information. The next step is to reduce further the inconsistencies in the data and to determine what 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. Legal aid plans have also shown a willingness to embrace technology and digital transformation initiatives when they have the resources to do so. Overall, legal aid supports the efficient operations of the justice system by providing legal assistance and advice services to individuals who might otherwise proceed through the system without counsel.

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.