Legal Aid Program Evaluation, Final Report
2. Description of the Legal Aid Program
This section provides an overview of the LAP and its policy context.
Federal funding of legal aid in Canada began in 1971 in partnership with the provincial and territorial governments (Department of Justice Canada, 2010a). This approach to legal aid funding reflects the shared responsibility for criminal justice: the federal government is responsible for criminal law and the provinces/territories are responsible for the administration of justice. Given these interconnected responsibilities, the two orders of government rely on one another for the effective functioning of the criminal justice system; as a result, each shares in the costs of criminal legal aid.
Civil legal aid is handled differently. The federal government is responsible for civil law in the territories, while provincial governments have constitutional authority for property and civil matters. Responding to this division of authority, the federal government directly funds civil legal aid in the territories. For the provinces, the federal government supports civil legal aid through the Canada Social Transfer (CST).
In both cases-criminal and civil legal aid-the federal government provides funding but is not involved in the delivery of legal aid. Criminal legal aid in the provinces and criminal and civil legal aid in the territories continue to be the core funding areas of the LAP, and the other components-funding for I&R legal aid services, COCFP, PSAT, and the FPT PWG-have been added over time. The five components of the LAP are described in detail in Section 2.2.
2.2. Overview of the Legal Aid Program
As outlined in the ARAF, the components of the LAP are designed to achieve four key objectives:
“to promote access to justice and protect rights under the Canadian Charter of Rights and Freedoms by contributing to the delivery of criminal legal aid for economically disadvantaged persons facing the likelihood of incarceration, and for youth pursuant to the Youth Criminal Justice Act, and by contributing to the delivery of immigration and refugee legal aid for economically disadvantaged immigrants and refugees; to promote access to justice by enabling provinces and territories to manage Court-Ordered Counsel in Federal Prosecutions cases (e.g., offences under the Controlled Drugs and Substances Act); to promote access to justice by enabling provinces and territories to provide legal aid to economically disadvantaged accused in Public Security and Anti-terrorism (PSAT) cases; and to promote public confidence in the criminal justice system (access to justice).” (Department of Justice Canada, 2007).
The following sections describe the five LAP components.
2.2.1. Base Funding for Criminal Legal Aid
18.104.22.168 Base Funding to Provinces
Under the LAP, the federal government provides funding to the provinces to support the provision of criminal legal aid to economically disadvantaged persons facing serious or complex charges that could lead to incarceration, as well as to youth charged under the Youth Criminal Justice Act.
The federal contribution to base funding is drawn from two envelopes. Funding for each jurisdiction from the first envelope is determined based on historical funding and population, whereas funding from the second envelope is calculated as a function of the number of rural communities, the Aboriginal population, the number of persons charged with Criminal Code and Controlled Drugs and Substances Act (CDSA) offences, and the provincial contributions to legal aid costs. Under the terms of the contribution agreements with provinces, the federal funding for criminal and youth criminal legal aid cannot exceed 70% of the province's total eligible expenditures. In addition, to encourage the maintenance of provincial funding levels the provinces must maintain their 2005-06 eligible expenditure levels in order to receive their full portion of funding under the second envelope.
22.214.171.124 Base Funding to Territories
Under the LAP, federal funding support for the provision of criminal and civil legal aid services in the territories is provided through Access to Justice Services Agreements (AJA). The AJAs also include funding for the Aboriginal Courtwork Program and Public Legal Education and Information services.The AJAs combine what had previously been three separate funding agreements into a single agreement with each territory; this approach is designed "to ensure accountability while delivering flexibility for the territories to use the federal contribution to develop and deliver the justice-related programs required by their communities" (Department of Justice Canada, 2010).
2.2.2. Immigration and Refugee Legal Aid Services
I&R legal aid assists individuals involved in the immigration and refugee determination system under the provisions of the Immigration and Refugee Protection Act (IRPA). It covers the provision of legal advice, assistance and representation for immigration or refugee proceedings before the Immigration and Refugee Board (IRB) of Canada, the Federal Court of Canada (FCC), or Citizenship and Immigration Canada (CIC) officials on post-determination actions.
The federal government currently allocates funding through the criminal legal aid agreements to six provinces that provide I&R legal aid services (Alberta, Quebec, Manitoba, British Columbia, Ontario, and Newfoundland and Labrador). The level of I&R legal aid funding allocated to each jurisdiction in a given year is based upon its share of demand for I&R legal services in the preceding fiscal year and is calculated based on seven variables. These variables correspond to types of legal services and are weighted according to the amount of work each type of service generally requires. To calculate the federal contribution, data from the IRB and the FCC are used. Participating jurisdictions report the number of certificates/referrals issued each year according to the seven variables and their annual expenditures on I&R legal aid.
2.2.3. Management of Court-Ordered Counsel in Federal Prosecutions
In federal prosecutions that involve complex legal issues, serious charges, and a strong likelihood of incarceration if convicted, the court can order the Attorney General of Canada to fund counsel for unrepresented individuals who do not qualify for legal aid. The court can make this order if it determines that the accused's right to a fair trial under sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms would be impaired if counsel were not appointed. COCFP primarily applies to federal CDSA prosecutions. When counsel is ordered, the court will enter a stay of proceedings until counsel is obtained.
The provinces and territories access funds for COCFP cases through the criminal legal aid agreements. The LAP covers 100% of the fees and disbursements and provides an additional 15% administration fee. The legal aid plans manage the cases under the COCFP, using their legal aid tariff structure. COCFP is based on constitutional requirements, which means that counsel must be provided for the case to proceed. Therefore, if a legal aid plan does not agree to manage a COCFP case, Justice will directly administer and manage the provision of legal counsel.
2.2.4. Public Security and Anti-Terrorism Legal Aid
In response to the events of September 11, 2001, the Government of Canada announced the PSAT Initiative, which funded activities to enhance the government's efforts in public safety, border security, and anti-terrorism. As part of this initiative, Justice received funding to respond to an expected increase in demand for legal services, of which one area was legal aid for the economically disadvantaged accused affected by public safety and anti-terrorism initiatives. The federal government provides funds separately from the criminal legal aid agreements to cover the costs of PSAT-related legal aid services to respond to the complexity and anticipated cost of mounting a defence in these cases.
The provision of PSAT legal aid is managed by the jurisdictions through case-by-case contribution agreements under which legal aid plans are fully reimbursed for legal aid costs related to:
- charges laid under the Anti-terrorism Act or such other public security and anti-terrorism legislation that may be enacted by Parliament;
- security certificates issued under the IRPA; and
- proceedings under the Extradition Act where the requesting state alleges the commission of a terrorist act.
2.2.5. Federal-Provincial-Territorial Permanent Working Group on Legal Aid
The 1996-2001 criminal legal aid agreements established the FPT PWG on Legal Aid to provide "a forum for negotiations of contribution agreements, as well as policy and legal discussions related to legal aid" (Department of Justice Canada, 2010c). Under the terms of the contribution agreements, the FPT PWG has a wide-ranging mandate that includes:
- serving as a resource on legal aid legislation, policies, programs, and issues;
- providing advice on legal aid cost-sharing issues;
- advising on the potential impact of legislative or policy proposals on legal aid, legal aid clients, and disadvantaged persons generally;
- developing possible approaches and undertaking research to support the provision of legal aid;
- identifying ways to improve the quality, cost or delivery of legal aid by reforming areas of law, justice policy, or legal aid itself;
- establishing working relationships at various levels to disseminate information and advice about matters under consideration by the FPT PWG or initiatives that would improve the quality or reduce the cost of legal aid; and
- involving non-governmental organization representatives in consultation on initiatives that involve or could affect legal aid.
The FPT PWG includes representatives from the federal, provincial and territorial governments, as well as representatives from those bodies delivering legal aid services in each jurisdiction, and is chaired jointly by a Justice representative and a P/T representative. The federal LAP provides secretariat support for the FPT PWG and undertakes research and policy development activities that complement the policy discussions of the FPT PWG, which is ultimately accountable to the FPT Deputy Ministers Responsible for Justice.
The logic model on the following page (Table 1) shows the activities of each component of the LAP. These produce a range of outputs that are largely the responsibility of the federal government, although some require the input and agreement of the provinces and territories (e.g., contribution agreements). Immediate outcomes primarily focus on the enhanced capacity to deliver legal aid services that federal funding is expected to provide. Intermediate outcomes focus on the federal role in contributing to the availability of legal aid. The ultimate outcome links the LAP to Justice's second strategic outcome: "Canada-wide legal systems that are efficient, fair, relevant and accessible, and that promote public confidence in access to justice". This evaluation focuses on the extent to which activities and outputs have supported the achievement of the LAP's intended outcomes.
|Components||Activities||Outputs||Immediate outcomes (capacity)||Intermediate outcomes (implementation)||Ultimate outcomes (benefits)|
||Enhanced capacity of provinces/territories (PTs) and their legal aid plans to deliver criminal legal aid services to eligible persons and civil legal aid services in the territories||PTs provide legal aid to eligible persons respecting the rule of law||Canada-wide legal systems that are efficient, fair, relevant and accessible, and that promote public confidence in access to justice|
|Immigration and Refugee (I&R) legal aid||
||Enhanced capacity of provinces and their legal aid plans with I&R agreements to deliver I&R legal aid services to eligible persons||PTs provide I&R legal aid to eligible persons; cost avoidance for Justice and CIC|
|Court-Ordered Counsel in Federal Prosecutions (COCFP)||
||Enhanced capacity to provide funded counsel in federal prosecutions, pursuant to court orders, through PT legal aid entities||PTs provide counsel to defendants; cases proceed; cost avoidance for Justice; Justice manages legal counsel|
|Public Security and Anti-terrorism (PSAT) legal aid||
||Enhanced capacity to provide funded counsel in federal prosecutions, through PT legal aid entities, for PSAT cases||PTs provide counsel to persons affected by PSAT initiatives; cases proceed; integrity of prosecutions is maintained|
|Federal-Provincial-Territorial Permanent Working Group (FPT PWG)||
||More information sharing and networking enabled among all jurisdictions and the federal government||Collaborative federal policy development related to legal aid matters that is reflective of PT considerations|
Source: Department of Justice Canada (2007), with modifications to include civil legal aid in the territories.
2.4. Program Resources
This section describes the current funding for the LAP and places the federal role in funding legal aid in its larger policy context.
In 1972-73, the federal government introduced cost-sharing for delivery of criminal legal aid through the Federal-Provincial Agreement on Legal Aid in Criminal Matters. From 1972-73 to 1990, the federal government contributed approximately half of the cost of delivering criminal legal aid in each jurisdiction. In the early 1990s, as part of government-wide efforts to reduce the Canadian budget deficit, cost containment measures were instituted, which saw the federal contribution to legal aid level off, then decline (Department of Justice Canada, 2001).
In 2000, the federal government introduced the two-year Legal Aid Project consisting of two components: $10 million in annual interim funding; and a research program, which funded projects aimed at improving understanding of legal aid needs. The initiative was designed to relieve financial pressures on legal aid plans and to increase understanding of unmet needs in various areas of legal aid (Department of Justice Canada, 2006). Citing "significant cost increases" (Department of Finance Canada, 2003) in the delivery of legal aid, Budget 2003 announced additional funding for legal aid through the Legal Aid Renewal Strategy, the development of which had been informed by research findings from the Legal Aid Project (Department of Justice Canada, 2006). Running from 2003-04 to 2006-07, the objective of the Legal Aid Renewal Strategy was to work with the provinces and territories to "improve access to legal aid services, promote innovative approaches to address unmet legal aid needs, and to support policy development in the area of legal aid" (Department of Justice Canada, 2006).
Budget 2007 stabilized federal support for legal aid by permanently adding $30 million to annual base funding for adult and youth criminal legal aid in the provinces, and criminal and civil legal aid in the territories (Department of Justice Canada, 2007). These resources include $10 million provided as interim funding since fiscal year 2001-02, as well as $20 million provided through the Legal Aid Renewal Strategy since 2003-04. This decision stabilized what had been considered temporary resources, and represented an increase in permanent funding. As a result, the overall federal contribution to legal aid has remained at $111.9 million since 2003-04. In 2007-08, the provinces and territories signed two-year, rather than five-year, agreements. Since then, the agreements, which expired on March 31, 2009, have been extended by one-year increments.
Table 2 shows the resources for the LAP for the period covered by the evaluation (2006-07 to 2010-11). For fiscal years 2009-10 and 2010-11, additional I&R funds were provided in response to a rapid influx of refugee claimants.
||10.00||Previously interim funding, these resources were added to the base funding component.|
|COCFP (to legal aid plans)||1.65||1.65||1.65||1.65||1.65|
|Total - Vote 5 (Contributions)||127.05||127.05||127.05||133.05||131.8|
|COCFP (for federal administration)||0.10||0.10||0.10||0.10||0.10|
|Total - Vote 1 (Operations and maintenance)||1.11||1.11||1.11||1.11||1.11|
|Grand total (Vote 1 and 5)||128.16||128.16||128.16||134.16||132.91|
The total shareable expenditures for criminal legal aid in the provinces and territories and civil legal aid in the territories were $385.3 million in 2009-10. As Figure 1 demonstrates, even with the consolidation of the interim funds into the base in 2007-08, over time, the federal contribution as a proportion of total shareable expenditures has been relatively stable since 2005-06.
Figure 1: Federal contribution as a percentage of total shareable expenditures
Figure 1 Description
The federal contribution to total shareable expenditures represented 29% in 2005-06, 29% in 2006-07, 32% in 2007-08, 30% in 2008-09, and 29% in 2009-10.
Source: Operations Directorate / Program Branch data
The allocation of the federal contribution by province and territory under the terms of the current contribution agreements is set out in Table 3 and Table 4.
|Newfoundland and Labrador||2.04|
|Prince Edward Island||0.44|
Note: An additional $0.47 M in funding for new program costs when Nunavut was created is included in the Nunavut allocation. This funding is not provided through the LAP.
-  As it is the Department of Finance that is responsible for the CST, civil legal aid in the provinces is outside the scope of this evaluation.
-  This section is largely based on the LAP description in the ARAF (Department of Justice Canada, 2007).
-  This evaluation covers only the legal aid portion of AJAs. The Aboriginal Courtwork Program, the Public Legal Education and Information services, and the agreements themselves are evaluated separately.
-  It should be noted that non-participating jurisdictions are free to formally "opt-in" to the delivery of I&R legal aid services and are eligible to receive a share of federal support in the year following the provision of written notice to the federal government (Department of Justice Canada, 2007).
-  The Strategy was originally funded for a three-year period from fiscal years 2003-04 to 2005-06, but funding was extended to an additional fiscal year (i.e., 2006-07) (Department of Justice Canada, 2006).
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