Legal Aid Program Evaluation, Final Report

4. Findings

This section of the report summarizes the findings from all data collection activities completed as part of the evaluation. The structure aligns with the Treasury Board core evaluation issues of relevance and performance.

4.1. Relevance

The evaluation considered the relevance of the LAP with respect to the alignment of the LAP with federal and departmental priorities, the role of the federal government in the provision of legal aid, and the ongoing need for legal aid.

4.1.1. Continued Need for the LAP

The evaluation evidence confirms that the LAP components address a demonstrable need and are responsive to the needs of Canadians. The most obvious measure of need is the continued demand for legal aid, as measured by the number of applications. For most of the LAP components, the demand has increased or remained at consistent levels since 2005-06.

As the rationale for federal contribution funding for legal aid is based on constitutional and Charter obligations, the LAP continues to serve the public interest and need as long as there are economically disadvantaged accused facing the likelihood of incarceration. The increasing demand for legal aid provides evidence of this continued need. In addition, legal aid is seen as assisting many individuals who are economically and socially marginalized, vulnerable and less likely to be able to navigate the criminal justice system, such as homeless people, Aboriginal people, individuals with mental illness, and immigrants and refugees. Available data demonstrate that many of these individuals are disproportionately represented in the criminal justice system (Novac, Hermer, Paradis & Kellen, 2009; Perreault, 2009; Sinha, 2009).

Base Funding

The number of applications for criminal legal aid increased by approximately 6% between 2005-06 and 2009-10, from 320,647 to 338,593 (Statistics Canada, 2011a).

Socio-economic factors in the territories were seen as driving the need for civil legal aid. However, assessing trends in the expenditures and number of applications for civil legal aid in the territories was difficult due to data availability and given the small number of files handled by each territory, statistics can skew fairly quickly and significantly.

CCJS data on the number of civil legal aid applications in the territories indicated that applications in the Northwest Territories decreased 7% between 2005-06 and 2009-10. The number of applications in Yukon remained relatively steady from 2006-07 to 2008-09, and experienced a 19% decrease between 2008-09 and 2009-10. The Yukon Legal Services Society continues to monitor whether this reduction was a statistical anomaly. Reliable applications data from Nunavut were not consistently available during the time period studied (Statistics Canada, 2011a).

To put these figures into a broader context, some key informants noted that when available resources do not cover legal aid costs, civil legal aid is affected first due to the constitutional requirements with respect to criminal legal aid. This possibility is supported by the increasing proportion of territorial legal aid costs directed to criminal matters between 2005-06 and 2009-10 (Statistics Canada, 2011a).

I&R Legal Aid

Demand for I&R legal aid was reported to be unpredictable from year to year, but has generally increased based on available data. This was reflected in the jurisdictions that provided this data[8]. Key informants indicated that demand for I&R legal aid fluctuates from year to year, making it difficult to predict the level of resources required. Demand is affected by international events (wars, natural disasters) that bring more immigrants and refugees to Canada, as well as federal government actions (e.g., visa impositions, management of marine arrivals).

In Alberta, the number of applications for I&R legal aid rose from 835 in 2005-06 to 1,625 in 2009-10, an increase of over 90%. Similarly, British Columbia saw applications increase over 90% from 1,034 in 2005-06 to 2,024 in 2009-10. Manitoba experienced a 76% increase from 97 applications in 2005-06 to 171 in 2009-10. Applications in Quebec rose 47% from 5,256 in 2005-06 to 7,724 in 2009-10. Ontario experienced relatively modest increase in applications of 15% from 12,576 applications in 2005-06 to 14,502 applications in 2009-10. Figure 2 shows the percentage change in the number of I&R applications from year to year, which demonstrates the volatility of demand, while Figure 3 shows the number of applications by each fiscal year and reflects the overall increase in demand since 2005-06.

Figure 2: Annual percentage change in I&R legal aid applications

Figure 2: Annual percentage change in I&R legal aid applications

Figure 2 description

In Quebec, the annual percentage change in the number of I&R legal aid applications increased from 7% in 2006-07 to 41% in 2007-08, then decreased to -14% in 2009-10. In Ontario, the annual percentage change in the number of I&R legal aid applications increased from 2% in 2006-07 to 22% in 2008-09, then decreased to -7% in 2009-10. In Manitoba, the annual percentage change in the number of I&R legal aid applications increased from -20% in 2006-07 to 77% in 2008-09, then decreased to 31% in 2009-10. In Alberta, the annual percentage change in the number of I&R legal aid applications increased from 20% in 2006-07 to 55% in 2008-09, then decreased to -5% in 2009-10. In British Columbia, the annual percentage change in the number of I&R legal aid applications increased from 16% in 2006-07 to 29% in 2008-09, then decreased to -2% in 2009-10.

Figure 3: Number of I&R legal aid applications 2005-06 to 2009-10

Figure 3: Number of I&R legal aid applications 2005-06 to 2009-10

Figure 3 description

In Quebec, the number of applications for I&R legal aid increased each year from 2005-06 to 2008-09, from 5,256 to 8,990, then decreased to 7,724 in 2009-10. In Ontario, there were 12,576 applications for I&R legal aid in 2005-06. The number of remained steady between 2005-06 and 2007-08, then increased to 14,502 in 2009-10. In Manitoba, the number of applications for I&R legal aid increased from 97 in 2005-06 to 171 in 2009-10. In Alberta, the number of applications for I&R legal aid increased from 835 in 2005-06 to 1,625 in 2009-10. In British Columbia, the number of applications for I&R legal aid increased from 1,034 in 2005-06 to 2,024 in 2009-10.

  • Source: Legal aid plan data
COCFP and PSAT

The number of COCFP and PSAT cases is relatively small in comparison to the other LAP components. However, the number of cases receiving federal funds has increased during the 2005-06 to 2009-10 period, from 15 to 39 for COCFP and from 6 to 18 for PSAT.

Continued Public Support for Legal Aid

Legal aid is also responsive to the needs of Canadians, as recent public opinion surveys confirm Canadians' continued support for legal aid:

  • Canadians strongly support access to justice (93% in 2008 and 97% in 2011 said it is very or somewhat important that people charged with a crime have legal representation) and believe that legal representation is necessary for a fair trial (over 90% in 2008 and 2011 strongly or somewhat agree).
  • Canadians' confidence in the justice system is linked to the existence of legal aid (82% in 2008 and 86% in 2011 feel more confidence in the system knowing that legal aid is available).
  • Canadians support public spending on legal aid, and the level of support has increased between 2008 and 2011 (almost 80% in 2008 and 88% in 2011 said it is very or somewhat important) (Department of Justice Canada, 2008a; Department of Justice Canada, 2011).

4.1.2. The Role of the Federal Government in the Provision of Legal Aid

Base Funding

The basis for the federal role in the provision of legal aid is found in Canada's foundational documents. Under the Constitution Act, criminal justice is an area of shared responsibility between the federal, provincial and territorial governments. The federal government has authority for criminal law-making, criminal procedure and penitentiaries, while the provinces and territories are responsible for the administration of justice and reformatories. The federal government respects this division of authority by contributing to the funding for criminal legal aid while leaving its delivery to the provinces and territories.

The federal government provides funding through the LAP for criminal legal aid in the provinces and criminal and civil legal aid in the territories. Through this cost-sharing approach, the federal government recognizes the role its legislation plays in affecting demand for and cost of legal aid services.

The federal involvement in legal aid promotes equitable access to the justice system by providing funding for legal representation for individuals who are economically disadvantaged. Equitable access to justice is a core value of Canada as reflected in the Canadian Charter of Rights and Freedoms. In particular, sections 7, 10(b) and 11(d) of the Charterhave been interpreted by the courts to establish a limited right to counsel in criminal matters. Although these provisions do not create a constitutional requirement that the government provide criminal legal aid in all cases, they do link legal representation to the notion of fairness.

I&R Legal Aid

The role of the federal government in I&R matters is defined in section 95 of the Constitution Act, 1867. Although jurisdiction over these matters is constitutionally shared between the federal government and provinces/territories, in the case of conflict, federal laws prevail.

Under this division of responsibilities, enforcement of I&R matters is conducted by federal authorities, namely CIC, and adjudication occurs through the federal IRB. In contrast to criminal law, where the federal government is responsible for law-making and the provinces/territories are responsible for the administration of justice, in I&R matters, the federal government is responsible for both law-making and the administration of justice (Frecker et al., 2002). Consequently, the federal government has a shared responsibility with respect to providing funding for I&R legal aid services.

COCFP

The Ontario Court of Appeal, in R. v. Rowbotham,found that sections 7 and 11(d) of the Chartercreate a right to counsel if necessary for a fair trial, and that in federally prosecuted cases the court can order federally funded counsel in situations where an accused cannot afford counsel but is not eligible for legal aid, and where the proceedings are complex and there is a likelihood of imprisonment. This decision has been cited and applied in every jurisdiction in Canada. The COCFP mechanism is used to address these funding orders and represents a federal role in these cases.

4.1.3. Alignment of the LAP with Federal and Departmental Priorities

The evaluation found alignment among the stated legal aid priorities of federal, provincial, and territorial governments, as well as legal aid plans. All interviewees described access to justice as the core objective for legal aid.

Alignment with Government Priorities

Legal aid also contributes to the effective functioning of the criminal justice system by upholding Canada's commitment to fairness and the rule of law. This supports the federal government's criminal justice agenda, as stated in the 2010 Speech from the Throne: "Our communities are built on rule of law", and while those who commit crimes must be held accountable, "Canadians want a justice system that delivers justice. We know we can protect ourselves without compromising the values that define our country" (Governor General of Canada, 2010).

Moreover, Canada has demonstrated its view of the importance of legal aid to democratic values by signing the International Covenant on Civil and Political Rights, which requires signatories to provide legal counsel to individuals facing criminal charges who cannot afford their own counsel. Agreements such as this are evidence of the federal commitment to legal aid.

Alignment with Departmental Priorities

For criminal legal aid, that priority is a necessity, given Charterobligations and international commitments, and Justice makes that priority explicit with its strategic outcome of a "fair, relevant, and accessible justice system that reflects Canadian values" (Department of Justice Canada, 2010c).

4.2. Performance - Effectiveness

This section addresses the effectiveness of each component of the LAP in achieving the expected outcomes identified in the logic model. Each component of the LAP is considered separately.

4.2.1. Base Funding

The LAP has identified the expected outcomes for the base funding as the enhanced capacity of provinces and territories and their legal aid plans to deliver criminal legal aid (and civil legal aid in the territories), and the provision of legal aid to eligible persons. These outcomes are supported by the terms and conditions of the contribution agreements, which state that provinces and territories are to ensure that all reasonable efforts are undertaken to make counsel available to eligible persons, including young persons, who exercise their right to counsel on arrest or detention.

Priority areas for coverage include offences where there is reasonable likelihood that, if convicted, there would be a sentence of open or closed custody or imprisonment. For civil legal aid in the territories, there is a similar commitment to ensure that civil legal aid is provided to eligible persons. The evaluation evidence shows continued availability of criminal legal aid in the provinces and territories and civil legal aid in the territories, although all lines of evidence also indicate several stressors on the legal aid system that affect its accessibility.

4.2.1.1 Enhanced Capacity of P/Ts and their Legal Aid Plans to Deliver Legal Aid

Without the federal contribution to total shareable expenditures, the capacity of the provinces and territories to deliver criminal legal aid in the provinces and criminal and civil legal aid in the territories would be significantly affected. Key informants from the jurisdictions acknowledged the importance of the base funding component to supporting legal aid.

In general, the smallest jurisdictions were more positive about the level of base funding meeting the priorities of legal aid because for them, the base funding represents a higher proportion of total funding. For a few jurisdictions, the federal contribution represents over 50% of their shareable expenditures, while for most, one-third to one-quarter of their expenditures are shared by the federal government.

4.2.1.2 Provision of Legal Aid to Eligible Persons Respecting the Rule of Law

Legal aid plans have continued to provide legal aid to eligible persons and have responded to increased demand for their services.

Number of Approved Applications

An indication of the increase in the provision of legal aid is the 8% increase in the number of applications approved for full service certificates between 2005-06 and 2009-10 (Statistics Canada, 2011a). However, full service certificates are only one type of service provided by most legal aid plans.

Many legal aid plans are expanding service delivery in other areas, such as duty counsel and brief services, in order to address client needs better and provide more cost-efficient services. To gauge the demand for legal aid more accurately, data was gathered from the four site visit jurisdictions on the number of clients assisted between 2005-06 and 2009-10. The percentage increases during this period generally demonstrate that duty counsel services constitute a large and growing proportion of legal aid plan service in criminal law. Details are provided below and in Appendix B. The data show some fluctuations in demand, but an overall increase in client assists for the four legal aid plans where site visits were conducted.

  • Legal Aid Ontario has had a 22% increase in client assists overall. The number of full service applications approved has fluctuated, but in 2009-10 was 4% lower than 2005-06 levels; duty counsel units of service have increased by 24%, including Brydges[9] duty counsel.
  • Legal Aid Manitoba has had an overall increase of 6% in client assists. The number of certificates and duty counsel assists has fluctuated during the time period with certificates increasing by 22% between 2005-06 and 2009-10, and duty counsel assists declining by less than 1%.
  • Legal Aid Alberta has had a 36% increase in client assists overall. There was a 5% increase in full service certificates and a 44% increase in duty counsel services, including Brydges duty counsel; the number of law line assists and opinion certificates declined.
  • Nova Scotia Legal Aid Commission has had a 50% overall increase, including a 37% increase in full and summary service certificates and a 63% increase in duty counsel services, including Brydges duty counsel.[10]

Nationally, there has been approximately a 10% increase in duty counsel services between 2006-07 and 2009-10, the years for which data are available (Statistics Canada, 2011a).[11]

The above data show that legal aid plans have been able to address the rising demand over the last five years, which is a measure of enhanced capacity and demonstrates the provision of legal aid to eligible people-the immediate and intermediate outcomes of LAP, respectively.

Key informants credited legal aid plan efforts to provide more cost-effective services through duty counsel and expanded duty counsel. However, there have been signs of strain. For example, British Columbia has had to shut offices and lay off staff. In addition, it stopped providing assistance for administrative offences for a period of time, but this assistance has recently been restored.

Key informants believe that as provincial and territorial governments become less able to absorb the increased costs for legal aid, the plans may have to reduce services in the coming years. Factors identified as affecting the cost of and demand for legal aid are discussed below in sub-section 4.2.1.3, Challenges.

Level of Financial Eligibility Guidelines Relative to Other Economic Measures

The financial eligibility guidelines establish the financial levels for assessing whether an individual is eligible for legal aid. Each legal aid plan has its own guidelines, which usually include maximum levels of income and assets for legal aid eligibility. For purposes of comparison between the financial eligibility guidelines and other economic indicators, the income levels were used. The comparison shows whether the income levels are keeping pace with increases in the consumer price index, wages, and Low Income Cut-offs (LICOs) as a way to demonstrate whether legal aid plan financial eligibility requirements are responding to the economic environment.

This comparison allows for an assessment of the achievement of one of the LAP's intended outcomes: enhanced capacity of P/Ts and their legal aid plans to deliver criminal legal aid services to eligible persons.

The evaluation found that many legal aid plans have been unable to adjust their financial eligibility guidelines. Although this reduces the pressure of increasing demand on legal aid plans, it also restricts the accessibility of legal aid. Earlier studies suggest that relatively low financial eligibility guidelines, such that many low-income individuals facing the likelihood of imprisonment can neither afford lawyers nor qualify for legal aid, can impact accessibility of legal aid.[12]

Comparing the financial eligibility guidelines to other economic measures places them in perspective. Figures 4 and 5 below compare the guidelines for family sizes of one and four to other economic measures between 2001 and 2010 for nine provinces and one territory.[13] The two figures are presented to show how the differences are affected by family size, as legal aid financial eligibility guidelines are scaled based on family size. The main findings are:

  • British Columbia is the only jurisdiction in which eligibility guidelines kept pace with or exceeded the provincial consumer price index and wage levels as measured by the minimum wage and fixed-weighted hourly earnings, often called real wages for family sizes of both one and four.
  • Two provinces present more of a mixed picture. Eligibility guidelines in Quebec kept pace with consumer price index and wages for family size of one but not for family size of four. In contrast, Saskatchewan's guidelines for a family of four have kept pace with consumer price index and wages; however, for a single person, the guidelines have increased faster than the consumer price index, but not as fast as wages.
  • Alberta and Prince Edward Island's guidelines have increased between 2001 and 2010, but not as fast as consumer price indexes and wages for family size of both one and four. Alberta increased its guidelines by 30% in 2008, only to reverse the increase in 2010 due to fiscal pressures. Recent provincial increases in the legal aid budget have enabled Alberta to recover 10% of the original 2008 increase, which is expected to have taken effect in the summer of 2011.
  • Ontario, Manitoba, Nova Scotia, Newfoundland and Labrador, and the Northwest Territories have not increased their legal aid financial guidelines since 2001.

The methods used and assumptions made for the calculations appear in Appendix C.


Figure 4: Comparison of provincial/territorial financial eligibility guidelines to other economic measures - 2001 to 2010 percentage increase - family size of 1

Figure 4: Comparison of provincial/territorial financial eligibility guidelines to other economic measures - 2001 to 2010 percentage increase - family size of 1

Figure 4 description

Between 2001 and 2010 in British Columbia for a family size of one, financial eligibility guidelines increased by 54%, the CPI increased by 17%, average hourly earnings increased by 26%, and the minimum wage increased by 5%. Between 2001 and 2010 in Alberta for a family size of one, financial eligibility guidelines increased by 6%, the CPI increased by 27%, average hourly earnings increased by 41%, and the minimum wage increased by 49%. Between 2001 and 2010 in Saskatchewan for a family size of one, financial eligibility guidelines increased by 27%, the CPI increased by 22%, average hourly earnings increased by 37%, and the minimum wage increased by 54%. Between 2001 and 2010 in Manitoba for a family size of one, financial eligibility guidelines increased by 0%, the CPI increased by 17%, average hourly earnings increased by 35%, and the minimum wage increased by 58%. Between 2001 and 2010 in Ontario for a family size of one, financial eligibility guidelines increased by 0%, the CPI increased by 19%, average hourly earnings increased by 30%, and the minimum wage increased by 50%. Between 2001 and 2010 in Quebec for a family size of one, financial eligibility guidelines increased by 36%, the CPI increased by 17%, average hourly earnings increased by 31%, and the minimum wage increased by 38%. Between 2001 and 2010 in Nova Scotia for a family size of one, financial eligibility guidelines increased by 0%, the CPI increased by 22%, average hourly earnings increased by 32%, and the minimum wage increased by 69%. Between 2001 and 2010 in Prince Edward Island for a family size of one, financial eligibility guidelines increased by 11%, the CPI increased by 23%, average hourly earnings increased by 28%, and the minimum wage increased by 61%. Between 2001 and 2010 in Newfoundland and Labrador for a family size of one, financial eligibility guidelines increased by 0%, the CPI increased by 20%, average hourly earnings increased by 37%, and the minimum wage increased by 82%. Between 2001 and 2010 in the Northwest Territories for a family size of one, financial eligibility guidelines increased by 0%, the CPI increased by 21%, average hourly earnings increased by 29%, and the minimum wage increased by 29%.

  • Note: Provincial financial guidelines used for comparison are contribution amounts for family size = 1.
  • Note: Percentage change in the minimum wage was calculated as of its value on January 1, 2001 and December 31, 2010.
  • Note: The Statistics Canada Consumer Price Index for NT is for Yellowknife only.
  • Note: The Statistics Canada average hourly earnings for NT includes NU and is only collected up to 2007.
  • Sources: Consumer Price Index: Statistics Canada. (2011b). Cansim II, Table 3260020
  • Fixed weighted average hourly earnings: Statistics Canada. (2011c). Cansim II, Table 2810039
  • Minimum wage: Human Resources and Skills Development Canada. (2009). Adult minimum wages in Canada. Retrieved April 21, 2011 from http://srv116.services.gc.ca/dimt-wid/sm-mw/rpt2.aspx?dec=5

Figure 5: Comparison of provincial/territorial financial eligibility guidelines to other economic measures - 2001 to 2010 percentage increase - family size of 4

Figure 5: Comparison of provincial/territorial financial eligibility guidelines to other economic measures - 2001 to 2010 percentage increase - family size of 4

Figure 5 description

Between 2001 and 2010 in British Columbia for a family size of four, financial eligibility guidelines increased by 73%, the CPI increased by 17%, average hourly earnings increased by 26%, and the minimum wage increased by 5%. Between 2001 and 2010 in Alberta for a family size of four, financial eligibility guidelines increased by 11%, the CPI increased by 27%, average hourly earnings increased by 41%, and the minimum wage increased by 49%. Between 2001 and 2010 in Saskatchewan for a family size of four, financial eligibility guidelines increased by 53%, the CPI increased by 22%, average hourly earnings increased by 37%, and the minimum wage increased by 54%. Between 2001 and 2010 in Manitoba for a family size of four, financial eligibility guidelines increased by 0%, the CPI increased by 17%, average hourly earnings increased by 35%, and the minimum wage increased by 58%. Between 2001 and 2010 in Ontario for a family size of four, financial eligibility guidelines increased by 0%, the CPI increased by 19%, average hourly earnings increased by 30%, and the minimum wage increased by 50%. Between 2001 and 2010 in Quebec for a family size of four, financial eligibility guidelines increased by 13%, the CPI increased by 17%, average hourly earnings increased by 31%, and the minimum wage increased by 38%. Between 2001 and 2010 in Nova Scotia for a family size of four, financial eligibility guidelines increased by 0%, the CPI increased by 22%, average hourly earnings increased by 32%, and the minimum wage increased by 69%. Between 2001 and 2010 in Prince Edward Island for a family size of four, financial eligibility guidelines increased by 11%, the CPI increased by 23%, average hourly earnings increased by 28%, and the minimum wage increased by 61%. Between 2001 and 2010 in Newfoundland and Labrador for a family size of four, financial eligibility guidelines increased by 0%, the CPI increased by 20%, average hourly earnings increased by 37%, and the minimum wage increased by 82%. Between 2001 and 2010 in the Northwest Territories for a family size of four, financial eligibility guidelines increased by 0%, the CPI increased by 21%, average hourly earnings increased by 29%, and the minimum wage increased by 29%.

  • Note: Provincial financial guidelines used for comparison are contribution amounts for family size = 4.
  • Note: Percentage change in the minimum wage was calculated as of its value on January 1, 2001 and December 31, 2010.
  • Note: The Statistics Canada Consumer Price Index for NT is for Yellowknife only.
  • Note: The Statistics Canada average hourly earnings for NT includes NU and is only collected up to 2007.
  • Sources: Consumer Price Index: Statistics Canada. (2011b). Cansim II, Table 3260020
  • Fixed weighted average hourly earnings: Statistics Canada. (2011c). Cansim II, Table 2810039
  • Minimum wage: Human Resources and Skills Development Canada. (2009). Adult minimum wages in Canada. Retrieved April 21, 2011 from http://srv116.services.gc.ca/dimt-wid/sm-mw/rpt2.aspx?dec=5

Another measure of the responsiveness of plans' financial eligibility guidelines to the economic situations of lower-income people is a comparison to the LICOs developed byStatistics Canada. According to Statistics Canada, "a LICO is an income threshold below which a family will likely devote a larger share [20% more] of its income to the necessities of food, shelter, and clothing than the average family." (Statistics Canada, Income Statistics Division, 2007). LICOs are based on the rationale that a family spending 20 percentage points more than the average would be in "straightened circumstances".

Table 6 compares the provincial legal aid financial eligibility guidelines to the 2001 and 2010 before tax LICOs. LICO measures are calculated based on year, family size and population. For each province and territory represented in Table 6, the guidelines are compared to the LICOs for all family sizes for the population of the largest city in the respective province.[14]

The percentages in Table 6 are the percentage difference between the financial eligibility guidelines and the LICOs. A negative percentage means that the financial eligibility guidelines are below the LICO by that percent. Conversely, a positive percentage means that the financial eligibility guidelines are above the LICO by that percent. If the percentage difference between the eligibility guidelines and the LICO becomes smaller between 2001 and 2010, the financial eligibility guidelines grew closer to the LICO and if the difference becomes larger, the financial eligibility guidelines grew further from the LICO. If the percentage difference shifts between 2001 and 2010 from negative to positive, the financial eligibility guidelines have changed from being below the LICO to above it.

The data show that some legal aid plans have reduced the difference between the LICOs and their financial eligibility guidelines, meaning that more families living under the LICO levels are eligible for legal aid. Over time, in British Columbia, Alberta, Saskatchewan and Quebec, the gap between the eligibility guidelines for most family sizes and the LICO levels has been reduced. For example: in 2001, a family of four in British Columbia had to have a household income 28% below the LICO level to be eligible for legal aid, while in 2010, to be eligible, the same family's income could be 5% above the LICO level; and in Saskatchewan in 2001, a family of four had to have a household income 50% below the LICO level to be eligible for legal aid, which in 2010 had been reduced to 35% below the LICO level.

In Ontario, Manitoba, Nova Scotia and Newfoundland and Labrador, the eligibility guidelines are falling further behind the LICO levels, since the guidelines have not increased in those provinces between 2001 and 2010. Prince Edward Island increased its financial eligibility guidelines in 2008, but they were further below LICO levels than they were in 2001.

The financial eligibility guidelines for the Northwest Territories and Yukon are above LICO levels, with the exception of families of six or more in Yukon.

A comparison of the provincial guidelines to all relevant LICO population measures is presented in Appendix D.

Table 6: Percentage difference between provincial financial guidelines and LICOs* (1992 base)

Year 2001
Pop. 500,000+ 100,000-499,999 30,000-99,999 <30,000
Prov. BC AB2 MB ON3 PQ4 SK5 NS6 PE7 NL8 NT9 YK
Family size 1 -29.5% -26.9% -26.3% -43.2% -43.7% -40.2% -21.8% -12.8% -70.1% 82.2% -
2 -13.1% -29.0% -23.9% -21.0% -34.8% -40.5% -16.1% -12.5% -66.1% 77.3% -
3 -18.5% -22.3% -20.9% -26.8% -37.2% -48.5% -18.2% -11.5% -70.8% 79.6% -
4 -27.8% -28.6% -23.5% -31.8% -41.2% -49.6% -23.8% -11.7% -75.1% 58.8% -
5 -30.1% -27.8% -22.6% -33.3% - -47.8% -25.0% - -76.6% 63.0% -
6 -31.5% -30.3% -24.7% - - -45.7% -26.6% - -77.8% 55.7% -
7+ -33.3% -31.0% -26.4% - - -44.1% -27.9% - -78.2% 59.0% -
Year 20101
Pop. 500,000+ 100,000-499,999 30,000-99,999 <30,000
Prov. BC AB2 MB ON3 PQ4 SK5 NS6 PE7 NL8 NT9 YK
Family size 1 -9.1% -21.6% -38.1% -52.3% -35.5% -36.0% -34.3% -18.5% -74.9% 53.0% 19.7%
2 4.1% -20.3% -36.1% -33.7% -26.3% - -29.6% -18.2% -71.6% 48.9% 26.4%
3 7.2% -8.9% -33.6% -38.5% -33.8% - -31.3% -17.3% -75.5% 50.8% 24.1%
4 4.9% -21.0% -35.8% -42.8% -44.1% -35.1% -36.0% -17.5% -79.1% 33.4% 13.0%
5 8.8% -25.5% -35.0% -44.0% - - -37.0% -18.0% -80.4% 36.9% 7.2%
6 13.4% -28.1% -36.8% - - - -38.3% - -81.3% 30.8% -2.5%
7+ 17.1% - -38.2% - - - -39.4% - -81.7% 33.6% -10.4%
  • Note: Percentages calculated as [(Highest contribution level for size of family - LICO) / LICO] * 100
  • * BC, SK, QC, NL, NWT and YK were compared to after tax LICOs; MB, ON, NS, PE were compared to before tax LICOs; AB was compared to before tax LICOs in 2001 and to after tax LICOs in 2010, reflecting the changes in its financial eligibility requirements.
  • 1LICOs for 2010 were not available and were therefore calculated as LICO2010 = LICO1992 x CPI2010 / CPI1992 (Source: Statistics Canada. [2010]. Low income cut-offs. Retrieved February 24, 2011, from http://www.statcan.gc.ca/pub/75f0002m/2010005/lico-sfr-eng.htm).
  • 2For 2010, financial eligibility guidelines ranged from 1 to a family size of 6+.
  • 3For 2001, financial eligibility guidelines ranged from 1 to a family size of 5+. For 2010, financial eligibility guidelines ranged from 1 to a family size of 5+.
  • 4Quebec separates its eligibility guidelines by single and two parent families. The higher financial guideline was chosen for each calculation, which was the two parent family guideline for each applicable family size. Ranged from 1 adult and 0 children to 2 adults and 2 children or more.
  • 5For 2001, guidelines were provided for families with number of children, where family was defined as one or two parent household. Family with 2 children was chosen for calculation. Ranged from single to family with 8 children. Only family sizes of 1 and 4 were provided for 2010.
  • 6Nova Scotia separates its eligibility guidelines by single and two parent families. The higher financial guideline was chosen for each calculation, which was the two parent family guideline for each applicable family size.
  • 7Financial eligibility guidelines ranged from 1 to a family size of 4.
  • 8Newfoundland and Labrador separates its eligibility guidelines by single and two parent families. The higher financial guideline was chosen for each calculation, which was the two parent family guideline for each applicable family size. Ranged from 1 adult and 0 children to 2 adults and 6 children or more.
  • 9The Northwest Territories separates its financial eligibility guidelines by zone in the territory. The middle level was chosen (Zone 5).
  • 10Yukon separates its eligibility guidelines by single and two parent families. The higher financial guideline was chosen for each calculation, which was the two parent family guideline for each applicable family size. Financial eligibility guidelines for 2001 were not available for Yukon.
  • Source for LICOs: Statistics 2010 - Low income cut-offs (1992 base) before tax. Retrieved February 24, 2011 from http://www.statcan.gc.ca/pub/75f0002m/2010005/tbl/tbl02-eng.htm

The effect of the level of the financial eligibility guidelines on the provision of criminal legal aid is difficult to assess. Even though many provinces have a growing gap between the legal aid financial eligibility guidelines and LICO levels, the percentage of criminal legal aid applications rejected for financial ineligibility between 2005-06 and 2009-10 remained relatively constant at about 8%.[15] However, legal aid plans often pre-screen individuals who may have come to apply but are clearly outside of the eligibility guidelines, and other individuals do not approach legal aid because they know they are outside of the financial eligibility guidelines. Therefore, the number and proportion of applications rejected for financial ineligibility may not indicate the full extent of unmet demand among low-income Canadians.

To assess the effect of the financial eligibility guidelines, information was requested from the site visit jurisdictions on the number of criminal applications rejected for financial ineligibility that were within 10% of the guidelines. Only one jurisdiction, Nova Scotia, was able to provide this information, and the results demonstrate how close many of those who apply are to meeting the income guidelines. In 2009-10, 24% of the applications that were outside of the financial eligibility guidelines were within 10% of the guidelines.[16] This information indicates that a substantial percentage of individuals who are not financially eligible for legal aid are close to the legal aid income levels, which demonstrates how the inability of legal aid plans to increase financial eligibility guidelines has meant that a significant percentage of current applicants are not financially eligible.

Although the legal aid plans have enhanced capacity by responding to increased demand, the inability of most plans to raise financial eligibility guideline levels indicates that there are challenges to fully addressing the demand for legal aid.

A potential effect of unchanging eligibility criteria for legal aid would be an increase in the number of unrepresented accused. Although there are reports of unrepresented accused increasing in Canada, these are largely anecdotal. There are no time series studies that would demonstrate any trends in the proportion of unrepresented accused.[17]

Key informants and criminal justice professionals, when asked about unrepresented accused in the criminal justice system, expressed the opinion that the proportion of unrepresented accused has increased. Some key informants pointed to the increase in the number of court-ordered counsel in provincial prosecutions as evidence that the proportion of unrepresented accused has increased.

Most key informants and criminal justice professionals interviewed believe that increases in unrepresented accused can be linked to the financial eligibility guidelines for legal aid. Funding levels also restrict legal aid coverage to those offences where there is a strong likelihood of incarceration. Several key informants and criminal justice professionals noted that this excludes cases that have serious consequences for accused that fall short of imprisonment; they pointed out that accused in these cases are less likely to plead guilty but are ineligible for legal aid, leaving them to "go it alone."

Proceeding unrepresented has impacts for both the accused and the criminal justice system. Interviewees as well as studies provide evidence that unrepresented accused are not as capable of handling their legal matters and experience more serious consequences than accused who have counsel (Department of Justice Canada, 2004; Doust, 2011; Hann, Meredith, Nuffield, & Svoboda, 2002a, 2002b).

4.2.1.3 Challenges

The evaluation evidence points to several key factors that affect the demand for and cost of criminal legal aid, many of which are outside the control of legal aid plans. The continued accessibility of legal aid to eligible Canadians will depend on the ability of legal aid plans to continue to meet demand while responding to external factors impacting the cost of and demand for legal aid services.

Case Complexity

Most frequently mentioned was the increasing complexity of cases, as represented by an increased number of appearances, time for resolution, and cost to legal aid of providing representation. In particular, more cases involve co-accused, multiple charges, conspiracy charges and violent crimes. These cases are costly and create resource stresses on legal aid plans because they often involve substantial disclosure (due, for example, to wiretaps) and are more likely to create conflict issues because of the number of co-accused, which results in legal aid having to retain multiple lawyers to handle one matter. Evidentiary issues are also becoming more complex with DNA and other forensic evidence that require expert testimony.

As an example of the increasing complexity of cases, Nova Scotia Legal Aid reported that the average cost of a homicide case increased by 67% from $12,908 in 2005-06 to $21,534 in 2009-10.[18] Although the number of legal aid homicide cases in Nova Scotia is relatively small, they can consume substantial resources. For Nova Scotia Legal Aid, the 27 homicide cases completed in 2009-10 represented 0.2% of cases, but they consumed $581,428, or 5% of the total cost of the cases completed that year.

Other Factors

Key informants indicated that changes in the criminal justice system that increased the likelihood of incarceration and the seriousness of other consequences could increase demand for legal aid. Changes in law enforcement practices have led to an increase in the number of charges for administrative offences. Defending accused who have received these non-violent charges, which often carry with them the likelihood of incarceration, has begun to represent a significant cost for some legal aid plans. For example, Nova Scotia Legal Aid reported that 30% of approved applications in 2009-10 consisted of breach of probation matters, and that there was an 83% increase in the number of breach of probation matters between 2005-06 and 2009-10.

Several key informants commented on how the ability of legal aid plans to control costs and maintain capacity to provide services is limited by the actions of other criminal justice system stakeholders. These key informants believed there is a need for more recognition of this interdependent nature of the criminal justice system. Ontario's Justice on Target was cited as an example of an initiative that takes this multi-stakeholder approach to address challenges faced by the criminal justice system. Justice on Target involves the judiciary, Crown prosecutors, criminal defence bar (including legal aid), and police collaborating to adopt new processes and practices to reduce the provincial average of days and court appearances to complete a criminal case by 30% (Ontario Ministry of the Attorney General, 2008).

Legal aid clients often have needs related to substance abuse, mental health issues and poverty-related issues, such as housing. These non-legal needs often increase legal aid costs by making the resolution of the client's legal issues more difficult and protracted. Key informants with legal aid plans also noted that specialized courts and procedures for those with substance abuse issues or mental health disorders tend to be more intensive and require more counsel time, translating into higher costs for legal aid.

Other issues that affect the demand for and cost of criminal legal aid mentioned by key informants included:

  • the shortage of lawyers and the need to hire counsel from outside the jurisdiction (this is primarily an issue for the territories);
  • the need for bilingual services;
  • the increased need for interpreters;[19] and
  • the need to ensure fees/salaries for lawyers are more competitive with private rates.

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