Legal aid is a vital part of the Canadian justice system. Legal aid plans pre-date the Canadian Charter of Rights and Freedoms, with the earliest plan being set up in Ontario in 1967 with the enactment of the first legal aid act. The remaining provinces later followed suit with both federal and provincial funding. Prior to this, legal aid was conducted as a charity administered on an informal basis by lawyers volunteering their time and services. The underlying philosophy was that this was a social responsibility of the legal profession. While pro bono work is still done, it does not have the same impact on the overall system.
The legal aid plans are somewhat distinct from each other, with different delivery mechanisms, varying levels of financial eligibility and coverage provisions. The common goal they share is to ensure that those 'in need' are able to receive legal assistance when they cannot afford to hire a lawyer.
While the Canadian Charter of Rights and Freedoms provides all Canadians with the "right to counsel without delay" for criminal cases, this does not include state funded counsel. The importance of legal aid is based on the adversarial nature of the justice system, whereby the system cannot function fairly and effectively if only the Crown has knowledge, skill and expertise. The Ontario Judges' Association, in their brief to the Attorney General of Ontario Legal Aid Review, noted that:
In the criminal justice system, there is an inevitable imbalance between the power and resources of the Crown and the power and resources of an individual accused. Legal aid is intended to bring some balance to the field.
The administration of legal aid services falls under the Constitutional responsibility of the provincial governments under their powers over the administration of justice. Each plan, however, receives funding from the federal government. The Department of Justice Canada shares the cost of legal aid for criminal matters with the provinces through negotiated agreements. Under the federal cost-sharing agreements, the provinces retain the right to determine financial eligibility and coverage restrictions.
Legal aid, with respect to criminal matters, is provided to those individuals and organizations who are financially unable to secure legal services from their own resources. This is an attempt to provide equal access to justice for those who are economically disadvantaged. However, legal aid is available only to those who meet certain eligibility criteria. Across Canada, there are a variety of criteria and provision of services based on differing ideas and definitions of what it is to be economically disadvantaged, and the appropriate or necessary legal services that should be provided.
This paper is a contribution to the ongoing examination by the federal Department of Justice Canada of unmet needs in criminal legal aid. Financial eligibility and coverage restrictions are the two key areas in the determination of access to legal aid services by disadvantaged people. In order to better inform the policy process, the Department of Justice Canada is interested in examining the differences in coverage and eligibility across jurisdictions.
There are three overarching questions that guide this paper:
- What are the differences in legal aid financial eligibility criteria and coverage restrictions between jurisdictions?
- How does financial eligibility in each jurisdiction compare to accepted definitions of poverty?
- How do the differing criteria and coverage restrictions affect access to legal aid for low income Canadians?
This paper includes current information on the financial eligibility guidelines and coverage restriction in each jurisdiction and an analysis of financial eligibility criteria in each jurisdiction in relation to Statistics Canada's Low Income Cut-off (LICO).
In order to address these issues, the provincial legal aid plans were consulted to determine current financial eligibility criteria and coverage restrictions, as were the Legal Aid Acts and Regulations, annual reports and business plans, when available. Data analyses, using Statistics Canada's Income In Canada 1999 and the Survey of Labour and Income Dynamics (SLID)1998, were conducted in order to compare the financial eligibility guidelines to the LICO and to determine the proportion of poor that would be eligible for legal aid given the financial eligibility guidelines (income component) in the different jurisdictions. It is important to note that while the information on the plans themselves is current, the data analyses, because of limitations in the microdata, examine the situation in 1998.
This paper is divided into five sections:
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