Legal Aid Program Evaluation, Final Report

Executive Summary

1. Introduction

The Department of Justice's (Justice) Legal Aid Program (LAP) manages the federal contribution to legal aid in Canada. The LAP has five key components: base funding for adult and youth criminal legal aid services in the provinces, and criminal and civil legal aid services in the territories; funding for immigration and refugee (I&R) legal aid services; funding for Court-Ordered Counsel in Federal Prosecutions (COCFP); funding for legal aid in Public Security and Anti-Terrorism (PSAT) cases; and secretariat and funding support for the Federal-Provincial-Territorial Permanent Working Group on Legal Aid (FPT PWG), which brings together representatives from provincial/territorial governments, legal aid plans, and legal aid delivery entities[1] with federal LAP officials for policy, research, and information sharing activities. The LAP's goal is to "enable the provinces and territories and their legal aid plans to deliver criminal legal aid (and criminal and civil legal aid in the territories) to economically disadvantaged persons facing the likelihood of incarceration, and for youth pursuant to the Youth Criminal Justice Act,through the provision of contribution funding" (Department of Justice Canada, 2007).

The evaluation of the LAP was conducted between September 2010 and April 2011. In accordance with the Treasury Board Policy on Evaluation, the evaluation of the LAP addresses the core issues of the relevance and performance of the LAP.

2. Methodology

The evaluation methodology consisted of document and file review, key informant interviews (n=36), and four site visits that included interviews (n=22) and a data review. Triangulation was used to verify and validate the findings obtained through these methods and to arrive at the overall evaluation findings.

3. Findings and Conclusions

3.1. Relevance

Do the LAP components continue to serve the public interest and need?

The LAP components address a demonstrable need. Demand for legal aid has continued to grow over time.

In addition, legal aid clients tend to be among the more marginalized and vulnerable members of the population. At the same time, the law, court system and legal processes are becoming increasingly complex. The combination of these factors has caused those working in the system (judges, Crown prosecutors, defence counsel) to believe that many criminal accused cannot represent themselves effectively. In this situation, legal aid services strive to preserve the fairness and accessibility of the criminal justice system.

Canadian opinion, as assessed through recent surveys, reflects continued public support for legal aid. Survey results show that Canadians value access to justice, and their confidence in the legal system is linked to the existence of legal aid.

Is there an appropriate and necessary role for the Department of Justice in the areas of the LAP?

The federal role, as carried out by Justice in the provision of legal aid funding is necessary based on constitutional and Canadian Charter of Rights and Freedoms obligations. The LAP's structure is intentionally designed to fit within the constitutional role of the federal government, which is shared jurisdiction in criminal justice, I&R matters, and civil law in the territories.

For COCFP, the federal obligation is clear, as it involves situations where the court has ordered that counsel be provided in a federal prosecution. For PSAT cases, the federal government explicitly created a role for the Department to provide legal aid in recognition that the cost of defending against PSAT-related charges would be substantial and should not be borne by legal aid plans out of their existing federal funding.

Do the priorities and objectives of the LAP align with the priorities of the federal government and the Department of Justice?

The LAP's objective of promoting access to justice through its components aligns with government priorities. The federal government's criminal justice agenda, stated in the 2010 Speech from the Throne, refers to "a justice system that delivers justice". This commitment has been reinforced by Canada becoming a signatory on international instruments that promote legal aid in instances where accused cannot afford counsel.

The LAP's objective also directly supports Justice's strategic outcome of a "fair, relevant, and accessible justice system". Legal aid plans contribute to the effective functioning of the criminal justice system by upholding Canada's commitment to fairness and the rule of law.

3.2. Effectiveness

How well do the LAP components contribute to the availability of legal aid services in Canada?

Base funding. LAP has contributed to the expected outcome of enhanced capacity of the provinces and territories and their legal aid plans to deliver criminal legal aid (and civil in the territories), as without the federal support, legal aid services would likely be reduced.

Given rising costs of and demand for legal aid, the evaluation evidence presented a picture of pressures on the legal aid system. The financial eligibility guidelines of legal aid plans have not kept pace with various economic indicators over time, such as the Low Income Cut-off and the consumer price index. This indicates that the capacity to meet the demand for criminal legal aid has lessened.

Criminal justice professionals interviewed as part of the evaluation indicated that a consequence of the unchanging financial eligibility guidelines is the increasing proportion of unrepresented accused in the criminal justice system. According to key informants and criminal justice professionals, unrepresented accused cannot effectively present their case, an opinion that is corroborated by recent studies, showing unrepresented accused are less likely than accused with counsel to be granted interim release, be acquitted, receive a stay of proceedings, or have charges withdrawn or dismissed.

I&R legal aid. The ability to forecast demand is hampered by the fluctuation in I&R applications from year to year. The funding formula may contribute to the difficulty in planning as it relies on past volumes, which does not allow for unanticipated arrivals or other spikes in demand. The inclusion of I&R legal aid in the criminal legal aid agreements was questioned by most key informants, as it is not a criminal matter. As an alternative, it was suggested that the provinces and the federal government could consider creating a separate agreement for I&R legal aid.

COCFP. This component was found to be working well. Plans are reimbursed for fees and disbursements and receive an administrative payment, and the level of federal funding was considered adequate. Although the costs of COCFP cases are rising and exceed the amounts budgeted for some years, the LAP has covered these additional costs. Data on COCFP cases is limited, as evidenced by the lack of data available at site visit jurisdictions. The existence of the component provides evidence of enhanced accessibility to legal aid, as it funds cases where the accused does not qualify for legal aid. Additionally, there are no known stays due to lack of funding for court-ordered counsel.

PSAT. Federal funding in PSAT cases is fundamental in ensuring access to justice for criminal defendants facing public security and anti-terrorism-related charges. Leaving legal aid plans to fund the mounting of defences to PSAT cases could have significant implications on the plans' ability to deliver their other services. This component's success can be measured by the fact that there have been no known instances of an unrepresented defendant in a terrorism-related case.

To what extent does the FPT PWG facilitate collaboration between the federal government and the provinces and territories?

The FPT PWG appears to satisfy several of its mandated activities, including its active role in undertaking and supporting research, and obtaining and disseminating information on legislation and policies affecting legal aid.

The FPT PWG has experienced a renewal since the last LAP evaluation in 2005-06, where the forum received criticism. FPT PWG members considered the group to be a useful forum for networking and sharing information. The co-chairs were credited with fostering a collegial relationship among the parties.

There is a view among members that the FPT PWG's mandate has not been fully met. There was a desire for more discussions of implications for legal aid of certain policies under consideration and of operational issues.

The desire to strengthen the governance structure of the FPT PWG and for clearer instructions or sense of direction/support to the FPT PWG was expressed by some key informants.

3.3. Efficiency and economy

Are there more efficient ways of achieving the objectives of the LAP?

The delivery costs of the LAP are equivalent to less than one percent of the federal funding contribution. Key informants could not suggest alternative delivery methods that would be more efficient. Legal aid plans have undertaken a variety of measures to increase efficiency at the operational level, including greater use of duty counsel and enhanced duty counsel. Some steps were also taken to reduce costs (e.g., closing offices, reducing staff, and cutting service) and may represent a reduction in accessibility rather than an improvement in efficiency.

A recurring theme raised by key informants was the impact of external factors on the demand for legal aid. Policing practices, prosecutorial discretion, changes in legislation, rules of court, and ultimately, the efficiency of the system as a whole have an impact on the costs borne by legal aid. For that reason, more collaboration among criminal justice stakeholders was proposed by key informants in order to understand better the drivers of demand for legal aid.

Does the cost of resources used to deliver the LAP components approximate the minimum resources needed to achieve the expected outcomes?

Whether the LAP is economical in achieving its outcomes related to enhancing the capacity of legal aid is not clear. Enhanced capacity was found to the extent that the number of applications submitted and approved has increased. Meanwhile, the total cost per application has increased.

The relatively unchanging level of the financial eligibility guidelines of legal aid plans, compared with relevant economic indicators, is considered to be a contributing factor to the increasing number of unrepresented accused in the criminal justice system. Legal aid is perceived as more economical than allowing accused to proceed unrepresented.

Legal aid is likely more economical than private counsel. A comparison of tariff levels in four provinces to private bar charges for similar services demonstrates that legal aid services are provided at much lower rates.

Certain LAP components would likely not be provided by jurisdictions and their legal aid plans without federal funding (i.e., I&R and COCFP). In this case, the federal government would be required to create alternative structures or forego legal aid. Creating a federal legal aid structure to provide these legal aid services would mean duplicating administrative functions available through legal aid plans, which would not be an economical alternative.


[1] The legal aid system consists of provincial legal aid plans and territorial legal aid delivery entities. For brevity's sake, they will be referred to collectively as "legal aid plans" for the remainder of the report.

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