Legal Aid Program Evaluation, Final Report

4. Findings (cont'd)

4.2. Performance - Effectiveness (cont'd)

4.2.2. I&R Legal Aid

The LAP has identified the expected outcomes for I&R legal aid as the enhanced capacity of provinces and their legal aid plans with I&R agreements to deliver I&R legal aid services to eligible persons; and the provision of I&R legal aid to eligible persons.

4.2.2.1 Enhanced Capacity of Provinces and Legal Aid Plans to Deliver I&R Legal Aid Services

The federal government recognized the need to address the significant increase in refugee claimants (up from 28,500 in 2007 to 37,000 in 2008, according to CIC data), which resulted in increased demand for I&R legal aid services. This increase primarily affected British Columbia, Ontario and Quebec, where 97% of refugee claims in Canada are made according to IRB data. In March 2009, Justice and CIC agreed that a joint effort was required to respond to this pressure. As a result, additional funds were provided to legal aid plans. CIC and Justice provided I&R legal aid "top up" funding for 2009-10 and 2010-11.

The funding formula is based on the demand for I&R legal services the previous fiscal year using IRB and FCC data, to which a weighting formula is applied. Given the volatility of I&R legal aid demand, calculating the federal contribution on the basis of the previous years' demand was considered by some to be too rigid. The formula does not allow for unanticipated arrivals, leading to the situation where Justice has had to find "emergency" funds to deal with a crisis. Additionally, using IRB and FCC data was questioned as this approach takes into account overall numbers of I&R claimants rather than the number of those who are receiving legal aid.

The inclusion of I&R legal aid in the criminal legal aid agreements was questioned by many, 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.

4.2.2.2 Provision of I&R Legal Aid to Eligible Persons

The main trend in I&R legal aid identified by key informants is the fluctuation of demand. When sudden influxes of refugee claimants occur, they can cause an increase in the demand for legal aid. The available data also shows an overall increase in the provision of I&R legal aid over time.[20]

  • Quebec had a 40% increase (4,998 to 6,996) in client assists (granted applications) between 2005-06 and 2009-10.
  • Ontario has experienced a 19% increase in full service I&R certificates from 11,126 to 13,242 between 2005-06 and 2009-10.
  • In Manitoba, client assists rose 69% from 90 to 152 between 2005-06 and 2009-10.
  • In Alberta, client assists (full service certificates and opinions) rose 87% from 749 to 1,403 between 2005-06 and 2009-10.
  • British Columbia has reported that its I&R duty counsel assists have increased by 51% from 989 to 1,460 between 2005-06 and 2009-10. In 2009-10, there was a 41% increase in duty counsel assists.

In Section 4.1.1 of the report, Figures 2 and 3 showed the fluctuations in applications for I&R legal aid as a measure of the continued need for I&R legal aid. Though they are similar in appearance, Figure 6 shows the percentage change from year to year in approved I&R applications and Figure 7 presents the change in the number of approved I&R applications, as measures of the effectiveness of the I&R legal aid component in achieving its intended outcome of providing I&R legal aid to eligible persons. Complete tables are found in Appendix E.

Figure 6: Annual percentage change in approved I&R applications

Figure 6: Annual percentage change in approved I&R applications

Figure 6 description

In Quebec, the annual percentage change in approved I&R applications increased from 7% in 2006-07 to 41% in 2007-08, then decreased to -18% in 2009-10. In Ontario, the annual percentage change in approved I&R applications increased from -5% in 2006-07 to 14% in 2008-09, then decreased to 3% in 2009-10. In Manitoba, the annual percentage change in approved I&R applications increased from -28% in 2006-07 to 94% in 2008-09, then decreased to -5% in 2009-10. In Alberta, the annual percentage change in approved I&R applications decreased from 20% in 2006-07 to 7% in 2007-08, increased to 59% in 2008-09, then decreased to -8% in 2009-10. In British Columbia, the annual percentage change in approved I&R applications decreased from 21% in 2006-07 to -16% in 2009-10.

  • Source: Legal aid plan data
  • Note: Figures include approved I&R applications, which include certificates, referrals or any other authorization for legal aid service. Alberta percentages include full service certificates and opinions.

Figure 7: Number of approved I&R applications - 2005-06 to 2009-10

Figure 7: Number of approved I&R applications - 2005-06 to 2009-10

Figure 7 description

In Quebec, the number of approved applications for I&R legal aid increased between 2005-06 and 2008-09 from 4,998 to 8,528, then decreased to 6,996 in 2009-10. In Ontario, the number of approved applications for I&R legal aid decreased from 11,126 in 2005-06 to 10,546 in 2006-07, then increased to 13,242 in 2009-10. In Manitoba, the number of approved applications for I&R legal aid increased between 2005-06 and 2009-10 from 90 to 152. In Alberta, the number of approved applications for I&R legal aid increased between 2005-06 and 2009-10 from 749 to 1,403. In British Columbia, the number of approved applications for I&R legal aid increased between 2005-06 and 2009-10 from 837 to 1,237.

  • Source: Legal aid plan data
  • Note: Figures include approved I&R applications, which include certificates or referrals to counsel. Alberta percentages include full service certificates and opinions.
4.2.2.3 Challenges

Previous backlogs with the IRB are being addressed, and responding to this demand could create an additional challenge for legal aid plans, according to representatives of plans that offer I&R legal aid.

Some key informants expressed interest in increasing consultations at the FPT PWG with CIC so that the effects of upcoming legislation and regulations on demand for I&R legal aid can be considered. An example of this type of legislation is the Balanced Refugee Reform Act,which will come into effect in early 2012. As regulations have not yet been drafted, legal aid plan key informants were unclear as to precisely how service delivery will need to change in order to respond to the legislation.

4.2.3. COCFP

The LAP has identified the expected outcomes for COCFP as the enhanced capacity to provide funded counsel in federal prosecutions, pursuant to court orders, through legal aid plans; and the provision of counsel to defendants.

4.2.3.1 Enhanced Capacity to Provide Funded Counsel

The legal aid contribution agreements cover court-ordered counsel in CDSA cases; however, the parties can also enter into separate agreements where the legal aid plans manage court-ordered counsel in non-CDSA matters. In these cases, the court is faced with an accused who is not eligible for legal aid, but who is without counsel in a matter that involves complex legal issues and serious charges with a strong likelihood of incarceration if convicted. In the interests of justice and to protect the accused's right to a fair trial, the court can order a stay of proceedings until the federal prosecuting authority has provided publicly funded counsel for the accused.

In COCFP cases, the federal government has retained prosecuting authority and the accused is ineligible for legal aid. As a result, the matters are considered solely a federal responsibility. If counsel is not provided in these cases, the result would be stays in the proceedings and cases could be dismissed.

Although most jurisdictions reported having limited experience with COCFP, those with experience generally reported that the mechanism for providing funding worked reasonably well. The PPSC coordinates COCFP. The PPSC regional offices provide headquarters with early notifications of applications for court-ordered counsel, which are then relayed to Justice. The system is intended to ensure that PPSC and Justice respond quickly once the order is made to minimize any delays that could impact the prosecution. It was noted that the type of orders increasingly include orders to fund an expert witness or to help with an aspect of a case where counsel is considered necessary. Consequently, the terms and conditions of the COCFP component of the LAP may need to be reviewed to accommodate these types of orders.

4.2.3.2 Provision of Funded Counsel

As evidence that the COCFP component of the LAP is achieving its intended outcome of the provision of counsel to defendants, there have been no known stays for lack of funding for court-ordered counsel in these cases.

Table 7 presents the financial information for COCFP cases managed by the jurisdictions or legal aid plans (Vote 5) and those managed by Justice because the jurisdictions and plans chose not to manage counsel (Vote 1). The number of cases has risen between 2005-06 and 2010-11, while expenditures have fluctuated. Recent years' expenditures for Vote 5 have exceeded the budget for COCFP. One site visit jurisdiction that provided data reported that the average cost per COCFP certificate was $6,780 in 2009-10, reflecting the expensive nature of these prosecutions, which often involve conspiracies and therefore have multiple accused, multiple charges, and voluminous disclosure.

Table 7: COCFP - Cases managed by jurisdictions or legal aid plans (Vote 5) and cases managed by Justice (Vote 1) (in $)
Year Vote 5 Vote 1
# of cases Budget Expenditures Unused/
(Exceeded)
# of cases Budget Expenditures Unused/
(Exceeded)
2005-06 18 1,178,000 199,880 978,120 6 100,000 123,992 (23,992)
2006-07 23 1,650,000 1,181,508 468,492 7 100,000 456,556 (356,556)
2007-08 38 1,650,000 2,918,169 (1,268,169) 5 100,000 203,113 (103,113)
2008-09 29 1,650,000 3,113,390 (1,463,390) 5 100,000 83,864* 16,136
2009-10 39 1,650,000 1,795,743 (145,743) 5 100,000 68,838* 31,162
  • Source: Legal Aid Directorate.
  • Note: The number of cases are those cases receiving funds for that fiscal year.
  • * Committed amount; actual expenditures may vary on file closure.

4.2.4. PSAT Legal Aid

The LAP has identified the expected outcomes for PSAT legal aid as the enhanced capacity to provide funded counsel in federal prosecutions, through legal aid plans, for PSAT cases; and the provision of counsel to persons affected by PSAT initiatives.

4.2.4.1 Enhanced Capacity to Provide Funded Counsel

The federal government established a separate component for funding legal aid for cases that fall under the PSAT Initiative's legislative framework. PSAT-related investigations are extraordinarily complex, producing large amounts of disclosure and sophisticated forensic evidence. In addition, the cases often involve multiple accused, multiple charges and Charterchallenges, all of which makes mounting a defence in a PSAT case very costly.

Most legal aid plans and P/T representatives have had little or no direct experience with PSAT legal aid. Those that had experience unanimously said that the process for handling PSAT legal aid, whereby Justice enters into a separate contribution agreement with jurisdictions on a case-by-case basis, has worked well. For PSAT legal aid, Justice pays for 100% of fees and disbursements. The relationship between Justice, the jurisdictions and the legal aid plans was described as collegial, with the jurisdictions notifying Justice about cases, which assists with planning.

The nature of PSAT charges invariably means that the accused person faces the likelihood of incarceration if convicted, so legal aid plans would have to provide coverage to any eligible economically disadvantaged person. If jurisdictions were required to fund PSAT defences, it would have a negative effect upon the legal aid plans' other services, which would have to be cut or reduced in order for the plans to absorb the additional costs. This potential is demonstrated by the experience of one legal aid plan, where in 2009-10, almost $2.7 million was spent on PSAT cases, which represented about 1% of the total expenditures that year for the plan's criminal certificate program. Although the percentage is small, so are the number of PSAT cases in that jurisdiction (n=17 in a jurisdiction that approves approximately 65,000 criminal legal aid applications each fiscal year). If this cost was not covered separately, the legal aid system would have to make adjustments and reduce costs elsewhere.

By funding PSAT legal aid cases, the federal government is protecting the legal aid system and ensuring access to justice for economically disadvantaged persons who are charged with offences under public security and anti-terrorism legislation.

4.2.4.2 Provision of Funded Counsel

The PSAT funding ensures that there will be no stays of prosecution due to lack of defence counsel. The Summative Evaluation of the Justice component of the PSAT Initiative (2007) found that PSAT legal aid ensured access to justice: no known instances were reported of an unrepresented defendant in a terrorism-related case, although whether all defendants have had representation at their initial appearances was not known.

As shown in Table 8, the number of cases funded has remained fairly constant in three of the last four years, with 2007-08 being the exception. The costs of PSAT cases have increased over time as the prosecutions have progressed. The amount committed to PSAT exceeded the budgeted $2 million in 2008-09 and 2009-10.

Table 8: PSAT legal aid - Cases funded by the LAP (in $)
Year Number of cases Budget Committed Unused/
(Exceeded)
2005-06 6 500,000 260,717 239,283
2006-07 19 2,000,000 748,223 1,251,777
2007-08 24 2,000,000 1,704,033 295,967
2008-09 19 2,000,000 4,172,303 (2,172,303)
2009-10 18 2,000,000 3,834,159 (1,834,159)
  • Source: Legal Aid Directorate.
  • Note: The number of cases are those cases receiving funds for that fiscal year.

4.2.5. FPT PWG on Legal Aid

The LAP has identified the expected outcomes for the FPT PWG as increased information sharing and networking among jurisdictions and the federal government; and collaborative federal policy development related to legal aid matters and reflective of P/T considerations. As described in Section 2.2.5, the FPT PWG has a wide-ranging mandate that includes activities intended to support these expected outcomes.

During the period covered by this evaluation, the FPT PWG was engaged in negotiations, as in 2007-08, the jurisdictions agreed to a two-year rather than five-year agreement. As a result the FPT PWG has experienced some constraints, and some key informants noted that the FPT PWG mandate remains partly unmet.

4.2.5.1 Information Sharing and Networking

Almost all key informants believe that the FPT PWG is a useful forum for building relationships and sharing information, ideas and best practices. Discussions are perceived to be open and respectful. Legal aid plans and the P/T representatives praised the co-chairs, who are credited with improving the FPT relationship and, therefore, the effectiveness and responsiveness of the forum.

Representatives from the legal aid plans report that in spite of the collegial nature of the FPT PWG, little has been achieved to assist the plans in dealing with their pressures. Some consider the forum to focus on jurisdictional concerns of the provinces/territories and the federal government around the responsibility and level of funding for legal aid, which leaves less time to discuss operational legal aid issues such as the possible effects of new legislation on legal aid and best practices.

4.2.5.2 Collaborative Policy Development

Few representatives from the provinces and territories think there is sufficient policy discussion at the FPT PWG. One shared view is that without the federal government's willingness to increase funding or to work out a new five-year agreement, there is little interest in policy development and planning by the provinces and territories; another view is that policy development takes time and resources, both of which are limited.

A significant undertaking of the FPT PWG has been the development of a business case on legal aid, which has consumed a considerable amount of the group's time. The business case was recognized as an important endeavour to all FPT PWG participants, though some key informants did not identify this work as being within the purview of policy development. Some key informants across the spectrum of interviewees pointed to the FPT PWG's active role in undertaking and supporting research, and obtaining and disseminating information on legislation and policies affecting legal aid as evidence that the expected outcome of collaborative policy development was being met.

Some key informants suggested improvements to information sharing and policy development, including more resources for research and development, more discussion on policy issues that focus on such areas as service delivery and linkage between legal aid and justice efficiencies, and more use of technology that would facilitate video-conferencing and reduce the travel requirements.

4.2.5.3 Challenges

Among some key informants, there is the desire to strengthen the governance structure of the FPT PWG. Officially, the FPT PWG reports to the FPT Deputy Ministers of Justice, and ultimately to the Ministers of Justice. There is a desire on the part of some key informants for clearer instructions or sense of direction/support to the FPT PWG. In addition, there is the perception that the FPT PWG secretariat and federal co-chair are not always kept apprised of policies under consideration within Justice or other federal departments/agencies that could affect legal aid. Members of the FPT PWG believe that bringing these issues forward and discussing their implications should be an important function of the forum.

4.3. Performance - Efficiency and Economy

The Treasury Board's 2009 Policy on Evaluation defines efficiency as production of "a greater level of output … with the same level of input or, a lower level of input with the same level of output", and economy as the achievement of expected outcomes using the minimum amount of resources required.

Applying these definitions to the LAP, efficiency considers the cost of delivering federal legal aid monies to the provinces and territories, and economy concerns the cost of achieving the expected outcomes, which are enhancing the capacity to deliver the components of the LAP. This section of the report considers both the efficiency and the economy of the LAP.

4.3.1. Efficiency

As stated in its objectives, the LAP's focus is to promote access to justice by: contributing financially to the delivery of criminal legal aid in the provinces, criminal and civil legal aid in the territories, and I&R legal aid; providing funding to cover the costs of COCFP and PSAT cases; and supporting policy and legal discussions of legal aid through the FPT PWG.

The LAP's logic model reflects this focus, as its main outputs concern having agreements in place with the jurisdictions, receiving claims, and making payments. The LAP's costs in negotiating, monitoring and administering the legal aid agreements and supporting the FPT PWG are the key indicators of its efficiency.

From 2007-08 to 2009-10, total delivery costs of the LAP equalled 0.8% of the total base funding, I&R, COCFP and PSAT components. In other words, for every $1,000 in federal funding distributed to the jurisdictions, $8 was spent on administering the program. It is difficult to assess whether LAP is being handled efficiently, as there is no comparator. This finding can serve as a benchmark for future evaluations of the LAP.

Legal aid plan representatives indicated that they have undertaken several measures to improve the efficiency and/or economy of their service. Key informants provided examples of the types of changes that have been made:

  • Greater use of duty counsel and expanded duty counsel (efficiency);
  • Administrative efficiencies through enhanced website and call centre, which reduce the cost of the application process (economy/efficiency); and
  • Provision of legal advice through law lines/legal call centres (efficiency).

It is beyond the scope of this evaluation to assess the effectiveness of these measures, as they are within provincial and territorial jurisdiction. However, they appear to indicate improved efficiency with respect to the achievement of the LAP's intended outcomes.

Although key informants did not offer any more efficient alternatives in delivering legal aid, several made a variety of suggestions for how to improve the efficiency and effectiveness of the legal aid system, including:

  • Working more closely with health services, agencies that provide addictions assistance, and other organizations that address underlying issues (e.g., addictions, mental health) that contribute to criminal activity.
  • Relying more on duty counsel, particularly expanded duty counsel who will assist beyond plea court.
  • Considering how to use non-legal assistance such as court workers, outreach workers, and information lines. For example, outreach workers and law lines can refer people to other services, help accused navigate through the system and connect them with lawyers, and provide basic legal information.
  • Involving other stakeholders, such as Crown, courts and police, in improving efficiencies, as the legal aid system is just one component of the criminal justice system and cannot achieve real efficiency without the cooperation of other stakeholders whose actions affect the demand for and cost of legal aid.

4.3.2. Economy

4.3.2.1 Costs per Application

The expected outcome for the LAP is enhanced capacity to deliver all of the components. Using the number of approved criminal legal aid applications as an indicator of capacity, there has been an increase in capacity. However, the total shareable expenditures for criminal legal aid in the provinces and civil and criminal legal aid in the territories have increased between 2005-06 and 2009-10; the amount expended per application has increased from approximately $995 to $1,134 per application and $1,231 to $1,373 per approved application. This increase is attributed to many factors such as greater complexity of cases; increases in tariff/salaries of lawyers to remain competitive; and the consequences of legislation and policing and prosecutorial practices. These are some of the causes reported to increase the amount of time it takes to resolve matters.

4.3.2.2 Unrepresented Accused

As discussed earlier, key informants and criminal justice professionals see the unchanging level of plans' financial eligibility guidelines as a contributing factor to the increasing number of unrepresented accused.

Criminal justice professionals interviewed as part of the evaluation were unanimous in emphasizing the notion that providing legal aid is more economical than allowing accused to proceed unrepresented. Although no quantitative or tracking data are available to demonstrate this, criminal justice professionals interviewed indicated that matters take longer if the accused is unrepresented; there are more remands; the judge, court administrator and Crown all devote additional time to assisting unrepresented individuals; and there are more appearances required in court.

4.3.2.3 Provision of COCFP and I&R Legal Aid Funding

For components that are largely federal responsibilities, federal funding is seen as essential to maintaining capacity.

I&R legal aid is delivered through legal aid plans. The current delivery mechanism for I&R legal aid is considered economical, as without federal funding, some participating jurisdictions would likely cease funding these cases, which would strain the capacity of other organizations (ex. immigrant settlement societies) that would handle the volume of cases. The effectiveness of legal assistance to immigrants and refugees could also be adversely affected.

If the current system for COCFP was not in place, the provinces would not fill the gap and the federal government would have to find another mechanism by which to provide court-ordered counsel. This would involve an increase in the administrative costs for COCFP; the current delivery mechanism is therefore more economical than the alternative.

4.3.2.4 Economy of Legal Aid Tariffs

The level of legal aid tariffs is likely more economical than private bar rates. National comparisons of legal aid tariffs and private bar rates are difficult because the legal aid tariff structures vary substantially across jurisdictions, and national information on private bar rates is not extensively available. Canadian Lawyer is the only publicly available resource on private bar rates and has its limitations, as itssurvey is based on those lawyers who subscribe to the magazine and responded to the survey. The sample sizes are small, so results should be interpreted with caution.

As an example, the site visit jurisdictions provided estimates using their tariffs or other calculations, as required. As Table 9 shows, the cost of using legal aid rates is approximately one-half to one-fifth of the private bar rates.

Table 9: Comparison of average rates between legal aid tariffs and private bar (in $)
Description Nova Scotia Ontario Manitoba Alberta
Private bar Legal aid Private bar Legal aid Private bar Legal aid Private bar Legal aid
Summary criminal offence (one-day trial) 1,847 815 3,812 1,179 3,094 1,410 3,094 909
Bail hearing 664 105 1,205 224 883 390 883 252
Criminal offence (one-day trial) 3,017 2,084 4,476 1,684 3,785 2,790 3,785 1,912
  • Source: Legal aid plans provided comparison based on their tariff structures.
  • For the private bar rate, the results of the 2010 Canadian Lawyer survey were used. The average rate was used for the comparison. The fee ranges used were Atlantic Region for Nova Scotia, and Western Region for Manitoba and Alberta. Ontario has its own fee range in the survey. The sample sizes for each region are Atlantic (n=69), Western (n=242), and Ontario (n=312). Source: Todd, 2010.
  • Assumptions used to provide comparison:
  • Nova Scotia Legal Aid (NSLA) does not have a fee structure that mirrors the categories in the table. NSLA calculated average costs based on best available data. For summary offence one-day trial, NSLA calculated the average cost (staff and certificate) for assault matters. For bail hearings, the estimated average cost is based on the two urban site locations. For criminal offence one-day trial, NSLA used the cost of staff representation for all indictable matters (trial/no trial); this average amount includes disbursements.
  • For Legal Aid Ontario, the rate chosen for comparison was the Tier 3 rate, as about 70% of legal aid work is conducted by Tier 3 lawyers. The tariff rate effective April 1, 2011 was used.
  • For Legal Aid Manitoba, Category C offences were used for the summary criminal offence one-day trial. Estimate for bail hearing assumes an uncontested bail hearing (an additional 2 hours or $160 can be requested for contested bail hearings). For criminal offence one-day trial, Category A offences are included in the table. Category B offences are estimated to cost $2,120.
  • For Legal Aid Alberta, the summary criminal offence one-day trial is based on level 1 offence rates and includes preparation and trial fee; the criminal offence one-day trial is based on average for level 2 and level 3 offences and includes preparation and trial fee.

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