Unmet Need for Criminal Legal Aid: A Summary of Research Results



This paper examines the nature and extent of unmet need for criminal legal aid in Canada. Determining the nature and extent of unmet need for criminal legal aid was the principal objective of a research program that was developed and carried out by the federal Department of Justice in collaboration with the provinces and territories between April 2001 and November 2002. The research was part of a two-year policy initiative to develop a renewed approach to federal policy for criminal legal aid in Canada.[1]

The vast majority of research on legal needs is in the area of civil matters. Only a very few studies have focused on legal needs in the area of criminal justice. Research carried out in Australia in the mid-1990's developed indicators of demand for criminal legal aid for purposes of developing a distribution formula for Commonwealth funding for states and territories.[2] A study by Paul Robertshaw is unique in having undertaken detailed research on the need for criminal legal aid[3] The level of need from criminal legal aid has never been examined prior to this research.Very much like the conclusions of this study, Professor Robertshaw rejects the narrow focus on the need for legal representation in court.[4] Instead, he adopts a much broader view of need for criminal legal aid analogous to a medical care model encompassing prevention, counseling and cure.[5]

The criminal legal aid component of the research program included eight separate studies. These included four studies of a general nature: a study of un-represented accused in nine courts across the country; a study of legal advice provided to persons arrested and detained by the police; a study of financial eligibility guidelines for receiving legal aid and a study of legal aid needs in rural and remote areas of the provinces. In addition; four studies focused on particular segments of the legal aid clientele: Aboriginal people; speakers of either of the two official languages (English or French) in minority situations; women and immigrants, refugees and visible minorities. Aboriginal people and immigrants, refugees and visible minorities were chosen for more detailed study because the experience of legal aid plans in several regions of the country indicated that meeting the needs of these groups presented special difficulties. Speakers of English or French who live in areas of the country where they constitute minorities may experience language barriers similar to other linguistic groups. In addition, the Canadian Constitution guarantees legal rights in both official languages. This was a compelling reason to examine the extent to which the criminal legal aid needs of speakers of both of Canada's official languages are being met. Women typically make up a minority of only about twenty to thirty per cent of criminal legal aid clients. However, it was felt that the needs of women may be different from those for men because of the gender-determined aspects of their lives.

Overall, the research employed a wide variety of methodologies including analysis of court data, court observation, interviews with key informants, focus group studies and literature reviews. As well, the research attempted to take into account the views not only of the experts: judges, lawyers and legal aid providers but also those of stakeholder groups representing the clients of legal aid.[6] Most of the research projects were carried out in the ten provinces. The geographic and socio-economic context in the three northern territories was considered to be sufficiently different that separate research studies addressing criminal and civil legal aid issues were carried out in each of the three territories. A number of pilot projects were also funded and evaluated as part of the legal aid initiative. The context for this research is described in more detail in a paper presented at the fourth International Legal Aid Group Conference held in Melbourne, Australia.[7]

A Framework for Understanding Needs for Criminal Legal Aid

Concerns raised by the judiciary, by the legal profession and by the public discourse that informed the initial thinking about the research focused on what was perceived to be the large numbers of un-represented accused in the criminal courts. The body of results that emerged from the research program provides the basis for the development of a broader and more detailed framework for understanding unmet needs for criminal legal aid than had been considered before, beyond the simple presence or absence of legal representation. This framework is organized around the sources from which criminal legal aid needs flow. The sections that follow represent that framework. As well, when the results are considered within that framework, they suggest some implications for the delivery of criminal legal aid. These are discussed at the end of the paper.

Unmet Needs That Flow From the Operations of Legal Aid Plans

One perspective that emerged from interviews with respondents was the emphasis on how need is created by legal aid providers themselves, by mechanisms that are designed to limit the accessibility of legal aid. The two major areas of emphasis on improving accessibility were on the principal rationing mechanisms normally used by legal aid plans to keep demand within the scope of their budgets. These are financial eligibility guidelines and coverage provisions.

Financial Eligibility Guidelines and Accessibility

All legal aid plans have financial eligibility guidelines of some form or other to limit the numbers of people who receive service. Respondents in the study of legal aid needs of Aboriginal people and in the study of legal aid needs and barriers to accessibility among immigrants, refugees and visible minorities suggested that in their experience restrictive financial eligibility guidelines placed significant limitations on the accessibility of legal aid for members of their constituent groups. A large number of lawyers who were interviewed in the court site study[8] and in the study of legal aid needs and barriers to accessibility among immigrants, refugees and visible minorities[9] suggested that in their experience restrictive financial eligibility guidelines placed significant limitations on the accessibility of legal aid for members of their constituent groups. A large number of lawyers who were interviewed in the court site study [10] suggested that restrictive financial eligibility guidelines were partly responsible for the numbers of un-represented accused they observed in the courts.

The quantitative study of financial eligibility guidelines [11] tended to support the qualitative data. That study showed that in all provinces the financial eligibility guidelines were below the Statistics Canada Low Income Cut-Offs. The table below shows the proportion of individuals and families falling below the Low Income Cut-Off levels that would be eligible for non-contributory legal aid in all provinces combined. The table shows the range from lowest to highest percentage of the low income individuals who would qualify under existing financial eligibility guidelines. All legal aid plans have schemes in which clients may be required to contribute toward the cost of the legal aid they receive. However, client contribution programs are not significant with respect to criminal legal aid and apply mainly in the area of civil legal aid.[12] This table shows that in none of the ten provinces are the financial eligibility guidelines sufficiently generous to include all of the low-income population. It is worth noting that the low-income cut-offs are determined according to requirements that relate to normal living - food, clothing and shelter. The cost of legal services is considerably greater than the cost of the elements that are used to measure low income and are, without doubt, well out of reach of those with incomes above the low-income cut-off levels.

Table 1 - Proportion of the Poor Who Qualify for Non-Contributory Legal Aid
Types of Families Percent of Families That Would Qualify Minimum Percent in Four of Nine Provinces
All Families 18% to 87% below 48% in four provinces
Single Person Families 30% to 86% below 51% in four provinces
Males 18 - 34 37% to 78% below 72% in four provinces

Coverage Provisions and Accessibility

All legal aid plans have coverage provisions that limit the range of legal matters and level of seriousness of the offences for which service is available. Generally, in criminal legal aid, the basic criterion for determining coverage is risk of imprisonment. Some plans also include loss of means of livelihood in some circumstances. The so-called "negative liberty" standard excludes from legal aid coverage many offenders who commit minor offences, especially first time offenders who are unlikely to face a jail sentence. First time offenders do, however, face the risk of receiving a criminal record. A criminal record may carry a number of important consequences that can effect employment in occupations in which a security clearance is required, or admission to certain foreign countries. The court site study foundthat restrictive coverage provisions are an important factor contributing to the numbers of un-represented accused they observed in the courts.[13]

The Disadvantages and Disabilities of Criminal Accused and Accessibility

Both the court site study and the evaluation of a pilot project designed to provide court-based assistance to un-represented accused[14] described the criminal accused population, and by extension legal aid clients, as a very low functioning population who are generally poorly educated, with low levels of literacy and leading very disordered lives.[15] A significant proportion may experience mental disorders, learning disabilities, the debilitating effects of excessive drug and alcohol abuse and cognitive disabilities relating to A significant proportion may experience mental disorders, learning disabilities, the debilitating effects of excessive drug and alcohol abuse and cognitive disabilities relating to severe and prolonged addictions. The court site study found that criminal accused falling into these categories are in need of representation regardless of the seriousness of the offence.

The respondents in the study of immigrants and visible minorities also felt that coverage provisions are too narrow. Coverage provisions that primarily take into account only the criminal offence, rather than the special disadvantages of immigrants such as language difficulties, or the broader impacts, such as the implications on the an offender's refugee or immigration status fail to take account of important implications that a criminal charge may have for this segment of the legal aid clientele.[16]

The study of women's issues and criminal legal aid made similar arguments.[17] As women tend to be primary caregivers for their children, the risks of a conviction fall not only on the individual women but on their children as well. Women who are involved in conflict with the law, either as perpetrators or as victims, may come under the scrutiny of social services and child welfare authorities as a secondary consequence of their brush with the law. This may represent a threat not only to the woman but also to their children. Overall, women tend to commit offences that are less serious than those committed by men, and are therefore less likely under conventional coverage provisions to receive legal aid. Also the author of the study of women's legal aid needs advocates coverage decisions should also take into account factors that are unique to women.

Respondents in most of the studies raised a similar issue with respect to coverage provisions. In their view, coverage that is based primarily on legal considerations, such as the seriousness of the offence and the risk of imprisonment, is too narrow. Legal aid coverage ought to reflect a broader set of considerations. These include disadvantages that may be faced by accused and, in their view, risks that relate to wider impacts on the lives of accused.

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