Legal Aid Eligibility and Coverage in Canada
Section 5 - Conclusion
It is very difficult to make any conclusive statements about how the plans affect equal access to justice for low income Canadians. Each plan is distinct, with its own rules and regulations for eligibility and coverage, and each applies them with some level of discretion. Ideally, one would want to examine case studies of how the plans apply their guidelines in order to be better able to evaluate how they operate and how their criteria affects low income Canadians. Unfortunately, this was not possible due to data constraints in this area.
Overall, while we cannot make any definitive statements about unmet needs, we can conclude the following:
- There is inconsistent coverage across the country. Therefore, not all Canadians would be treated equally. There may also be inconsistent coverage within jurisdictions.
- Restrictions in eligibility and a narrower focus on legal aid coverage may have a direct impact on persons with a low income. Only the most serious cases are covered. A plethora of lesser cases and first offences are no longer covered in many of the jurisdictions. According to anecdotal information, a large number of persons are appearing before the courts unrepresented. They may also be more likely to plead guilty, get convicted and receive stricter sentences. What are the implications for their future financial health, employment and educational opportunities?
- There may be a relationship between stringent financial eligibility guidelines and duty counsel services. Duty counsel services are an essential element of legal aid delivery systems, providing legal representation at the pre-trial stages of the criminal justice system. Duty counsel resources are often stretched to the limit. It is possible that lower financial eligibility may be responsible, in part, for larger numbers of accused who rely on duty counsel as the only legal representation available to them.
- Although this paper did not directly address the issue of funding, budgetary constraints were mentioned in jurisdictions that were tightening their financial eligibility criteria, decreasing their coverage and limiting duty counsel services. Thus, funding issues, rather than changes in the plans' mandates or philosophies, may be guiding restrictive changes.
- There is no strict definition of poverty that is applied across all the plans. An applicant on social assistance would qualify in almost all jurisdictions. Beyond that point, the plans vary. The financial eligibility guidelines of most plans fall below the low income cut-offs. Families in rural areas and small communities would be more likely to qualify under most plans' guidelines.
- Expanded eligibility through contribution systems allows a greater proportion of poor families and youth to qualify for financial eligibility, but it is uncertain whether the contributions place them in situations of financial hardship, or act as a deterrent? The working-poor and the near-poor are in precarious financial situations. Job-loss, injury or illness may result in moving these families onto social assistance.
- Legal aid plans are not consistent in updating their criteria. This means that as inflation and wages increase, the guidelines stay static. Normally, who we define as poor changes with economic conditions. Because some plans do not regularly update their criteria, they risk excluding an increasing proportion of poor families each year.
There are many areas that could be examined to better understand the unmet needs in the legal aid system. But first we need to understand how the plans work and how they treat particular cases. In order to do this, we need to be able to follow similar cases through the coverage restrictions and financial eligibility criteria established by each plan. It would, at the very least, permit us to examine the similarities and differences in a concrete way.
A second area of study that is essential is an examination of those who are denied legal aid, either because the case does not fall within the scope of the plan or because they do not qualify under the financial eligibility criteria. There is only anecdotal evidence of what happens to those who are denied coverage in criminal cases. This would allow further study into the court system and how the accused who are not represented are treated. It could also gather additional information on duty counsel and the impact of their services on low-income Canadians.
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