Report of the Deputy Minister Advisory Panel on Criminal Legal Aid

Annex 1: Federal Legal Aid Program

Federal Funding

Federal funding support for criminal legal aid began in the 1970s as a contribution to the provincial and territorial governments to support the establishment and delivery of criminal legal aid in the provinces and criminal and civil legal aid in the territories. Under this collaborative partnership, provinces and territories deliver legal aid services through their legal aid systems, and the federal government shares in the costs of delivery.

Federal funding to the provinces for criminal legal aid and to the territories for criminal and civil legal aid is provided through the Department of Justice Canada’s Legal Aid Program and constitutes the Department’s second largest transfer payment ($112.4 million annually^{Footnote 6}). Under the Legal Aid Program, the federal government provides funding to the provinces and the territories to support the provision of criminal legal aid to economically disadvantaged persons facing serious or complex charges that could lead to incarceration, as well as to youth charged under the Youth Criminal Justice Act.

The federal contribution to criminal legal aid in the provinces and criminal and civil legal aid in the territories is allocated on the basis of separate funding formulas.^{Footnote 7} These allocations are calculated based on historical allocations as well as other variables (e.g. the number of rural communities, Aboriginal population, the number of persons charged with Criminal Code and Controlled Drugs and Substances Act offences persons charged under the Criminal Code and Drug offences).

Historically, the federal government has increased its investment in criminal legal aid to improve access to legal aid services, promote innovative approaches to address unmet legal aid needs, and to support policy development in the area of legal aid. For example, in 2001-2003, recognizing the financial pressures on legal aid plans throughout the country and the importance of learning more about unmet legal aid needs, the federal government implemented interim measures covering fiscal years 2001-2002 and 2002-2003 (the Legal Aid Project^{Footnote 8}). Increased temporary federal resources ($10 million) were provided to address criminal legal aid pressures in the provinces and criminal and civil legal aid pressures in the territories. In addition, in 2003-2007, under the Investment Fund, increased temporary funding ($20 million) was provided to provinces and territories to support the development, implementation and monitoring of legal aid innovations addressing unmet legal aid needs in the provinces for criminal legal aid and in the territories for both criminal and civil legal aid. Under this fund, priority was given to innovations addressing the needs of Aboriginal people, members of official language minority groups, members of visible minority groups, those with special needs; and innovations targeting service diversification – activities which support the provision of legal aid services (e.g. duty counsel) that focus on the needs of people at the “front end” of the criminal justice system.

Under Budget 2007, these temporary resources, totalling $30 million, were rolled into the on-going base funding for criminal legal aid. This, in turn, increased the total federal investment in criminal aid from $82.4 million to $112.4 million.

In light of the important role that criminal legal aid plays with respect to access to justice, and despite fiscal restraints, the federal government has continued to provide stable funding for criminal legal aid over the past ten years. The table below reflects federal funding allocations for criminal legal aid in the provinces and territories in 2013-2014.

**Table 1: 2013-2014 Federal Criminal Legal Aid Allocations**
Jurisdictions	Federal Allocations^{Footnote 9}
Newfoundland and Labrador	2,042,872
Prince Edward Island	444,873
Nova Scotia	3,612,436
New Brunswick	2,452,811
Quebec	23,400,463
Ontario	43,312,631
Manitoba	4,740,754
Saskatchewan	4,202,560
Alberta	10,419,922
British Columbia	13,698,185
Yukon	864,119
Northwest Territories	1,704,154
Nunavut	1,489,683
Total	$112,385,463

Legal Aid Program Evaluation Results

In accordance with the Treasury Board Policy on Transfer Payments, the Department of Justice Canada conducted an evaluation of its Legal Aid Program between September 2010 and April 2011. The evaluation addressed the relevance and performance of the Legal Aid Program for fiscal years 2006-2007 to 2010-2011.^{Footnote 10}

“The cost of administering and monitoring the Legal Aid Program is minimal; it is equivalent to less than one percent of the federal funding contribution.”

Department of Justice Canada
Legal Aid Program Evaluation 2012

It is noteworthy that the issues identified in the evaluation findings were also explored by the Panel throughout their deliberations and are reflected in their advice to the Deputy Minister. The evaluation highlighted the following findings:

Relevance

The Legal Aid Program’s objective of promoting access to justice continues to align with federal government priorities and directly supports the Department of Justice’s strategic outcome of a “fair, relevant, and accessible justice system”. Legal aid plans contribute to the effective functioning of the criminal justice system by upholding Canada’s commitment to fairness and the rule of law.
Federal funding support for criminal legal aid is necessary based on constitutional and Canadian Charter of Rights and Freedoms obligations.
Federal legal aid funding addresses a demonstrable need as demand for legal aid has continued to grow over time and legal aid clients tend to be among the marginalized and vulnerable members of the population. Legal aid services strive to preserve the fairness and accessibility of the criminal justice system.

Effectiveness

The Legal Aid Program has contributed to the expected outcome of enhanced capacity of the provinces and territories and their legal aid plans to deliver criminal legal aid (and civil legal aid in the territories), as without the federal support, legal aid services would likely be reduced.

Efficiency and economy

The cost of administering and monitoring the Legal Aid Program is minimal; it is equivalent to less than one percent of the federal funding contribution.
More collaboration among criminal justice stakeholders is required. A recurring theme in the evaluation was the impact of external factors on the demand for legal aid (e.g. prosecutorial discretion, changes in legislation, and efficiency of the system as a whole).
Given legal aid pressures (e.g. rising costs, increasing demands, fiscal constraints) there is a need to identify and implement efficient and economical practices and means to relieve these pressures. While legal aid plans have undertaken a variety of measures to increase the efficiency/economy of their service delivery, some of these approaches may represent a reduction in accessibility rather than an improvement in efficiency.
Improved data availability is required to assess the effectiveness, efficiency and economy of the federal contribution to legal aid. Due to the shared responsibility for legal aid, it is important to determine what legal aid data is relevant to the Legal Aid Program and should be collected by provinces, territories and legal aid plans.

Annex 2: Legal Aid by the Numbers

While information exists on legal aid revenues and expenditures relative to criminal justice spending, it is recognized that there is minimal hard data available within existing legal aid management information systems regarding outputs and outcomes. Accordingly, the Panel emphasized the need for evidence-based data to support change and, as well, noted the challenges associated with articulating justice and its ultimate outcome.

Legal Aid Revenues

According to Statistics Canada, and as illustrated in the table below, an estimated 93% of legal aid revenues (for both criminal and civil legal aid) are from federal and provincial-territorial governments. Client contributions and cost recoveries, contributions from the legal professions (e.g. law foundations) and other revenues account for the remaining 7% of funds.

Table 2: Legal Aid Plan Revenues (2012-2013)(dollars x 1,000)
Jurisdictions	Total Revenues^{Footnote 11}	Government Contributions^{Footnote 12}	Client Contributions and Cost Recoveries^{Footnote 13}	Contributions of the Legal Profession^{Footnote 14}	Other Revenues^{Footnote 15}
Newfoundland and Labrador	14,418	13,980	97	n/a	341
Prince Edward Island	1,822	1,735	n/a	n/a	87
Nova Scotia	22,089	21,910	10	n/a	169
New Brunswick	8,905	8,201	224	182	298
Quebec	172,320	169,607	2,474	n/a	239
Ontario	383,426	347,549	12,069	n/a	23,808
Manitoba	32,723	29,914	1,615	1,194	0
Saskatchewan	22,513	22,369	10	n/a	134
Alberta	76,303	65,810	4,474	n/a	6,019
British Columbia	83,543	78,414	0	3,807	1,322
Yukon	1,852	1,833	13	n/a	6
Northwest Territories	5,309	5,263	46	n/a	0
Nunavut	9,288	9,286	2	n/a	0
Total	834,511	775,871	21,034	5,183	32,423

Legal Aid Expenditures Relative to Criminal Justice Spending

A 2008 Department of Justice Canada report^{Footnote 16} demonstrated that, on a national basis, over a five-year period (2002-2003 to 2006-2007), direct service expenditures for criminal legal aid increased by 24.4% (from $221M in 2002-2003 to $275.4M in 2006-2007).^{Footnote 17}

An analysis of the patterns of change comparing expenditures for criminal legal aid with expenditures for other key components of the criminal justice system, such as courts, prosecutions and corrections, yields mixed results. The limited data available relating to courts, corrections and prosecutions costs restricts the comparisons that can be made with criminal legal aid expenditures. However, data relating to policing costs for the provinces and territories was more complete and hence, more reliable.^{Footnote 18} A comparison of court expenditures data with legal aid expenditures data in six jurisdictions^{Footnote 19} shows that the increase in court costs (21.9%) was marginally lower than the increase in criminal legal aid spending (24.4%). Notably, court costs compared with legal aid costs were lower in Manitoba and Saskatchewan and higher in Alberta.

A review of prosecutions expenditures^{Footnote 20} with criminal legal aid expenditures for 2003-2004 to 2006-2007 demonstrated that costs for prosecutions when compared with criminal legal aid were higher in some jurisdictions but lower in others. Generally, the data showed that the average increase in prosecutions costs was slightly less (23.5%) than the average increase in direct criminal legal aid expenditures (24.4%). Only in the province of Alberta was the increase in prosecution costs (50%) greater than the increase in criminal legal aid expenditures (27.6%).

In comparing adult corrections expenditures^{Footnote 21} with criminal legal aid expenditures, spending on adult corrections is higher than that for criminal legal aid in some jurisdictions. More specifically, it reveals that although spending on adult corrections was lower than that on criminal legal aid in Manitoba and Saskatchewan, spending on adult corrections was higher than expenditures in criminal legal aid in Alberta. The average increase in adult court corrections for 2002-03 to 2006-07 was 19.2% while for criminal legal aid the average increase was 43.2%.

Finally, an analysis of expenditure patterns for criminal legal aid and policing over a four-year period is based on more complete data and permits more definitive conclusions. The data^{Footnote 22} demonstra;tes that, on a national basis, the percentage increase in the costs of criminal legal aid (14%) have been less than the percentage increase for policing costs (18.7%) during the same period (2003-2004 and 2006-2007). Further, the data shows that the percentage increase for direct criminal legal aid expenditures was greater than for policing costs in six jurisdictions (Nova Scotia, New Brunswick, Quebec, Saskatchewan, Yukon and Nunavut).^{Footnote 23}

Despite the limitations in data, it is clear that there are variations in expenditure patterns between criminal legal aid spending and spending in other areas of the criminal justice system.

Legal Aid Expenditures in Fiscal Year 2012-2013

In fiscal year 2012-2013, legal aid plans spent $813 million providing criminal and civil legal aid services. Consistent with previous years, most legal aid plans spent more on criminal matters than on civil matters. In fiscal year 2012-2013, Quebec (46%), Prince Edward Island (47%) and Ontario (47%) allocated a smaller proportion of direct expenditures to criminal matters. In the other ten reporting jurisdictions, the proportion spent on criminal matters ranged from 55% for New Brunswick to 75% for Manitoba and Saskatchewan (Statistics Canada 2014).^{Footnote 24}

Table 3: Legal Aid Plan Expenditures (fiscal year 2012-2013)(dollars x 1,000)
Jurisdictions	Total Expenditures^{Footnote 25}	Direct Criminal Legal Aid Expenditures^{Footnote 26}	Central Administrative Expenditures^{Footnote 27}	Other Expenditures^{Footnote 28}
Newfoundland and Labrador	12,635	6,741	991	n/a
Prince Edward Island	1,822	851	n/a	n/a
Nova Scotia	23,093	12,331	1,625	76
New Brunswick	8,607	3,876	721	787
Quebec	162,624	67,372	14,655	1,726
Ontario	374,244	139,681	56,215	23,199
Manitoba	33,573	19,198	6,563	1,290
Saskatchewan	22,477	15,482	1,415	377
Alberta	73,521	40,308	6,774	2,002
British Columbia	83,940	44,238	9,515	4,270
Yukon	2,014	1,184	325	n/a
Northwest Territories	5,263	2,046	1,463	912
Nunavut	9,300	3,753	1,773	2,350
Total	813,113	357,061	102,035	36,989

Financial Eligibility Levels

The Legal Aid Program evaluation (2012) noted that financial eligibility guidelines of legal aid plans have not kept pace with various economic indicators over time, such as Low Income Cut-Off and the consumer price index and that this has implications for accessibility to legal aid. For most plans, financial eligibility levels are now set so low that many low-income individuals facing the likelihood of imprisonment can neither afford lawyers nor qualify for legal aid.

Legal aid financial eligibility guidelines are updated periodically, however, not on a regular basis to keep pace with changes in economic indicators. Financial eligibility levels have remained relatively unchanged over the past 10 years^{Footnote 29}. The table below shows financial eligibility levels for legal aid plans across the country as of 2014.

Table 4: Legal Aid Financial Eligibility^{Footnote 30}
Jurisdiction	Financial Eligibility Income Levels
Newfoundland and Labrador	See below^{Footnote 31}
Prince Edward Island	$15,778
Nova Scotia	$12,804
New Brunswick	See below^{Footnote 32}
Quebec	$16,306
Ontario	$10,800
Manitoba	$14,000
Saskatchewan	$11,820
Alberta	$16,176
British Columbia	$17,040
Yukon	$19,200
Northwest Territories	$25,140 – $35,172^{Footnote 33}
Nunavut	See below^{Footnote 34}

Note: These levels reflect income thresholds for a single person.

While multiple factors are considered in determining eligibility for criminal legal aid (i.e. merit, scope), financial eligibility continues to be a key factor and an important determinant of access to legal aid and by default access to justice.

Annex 3: Socio-Economic, Health and Legal Impact of Criminal Legal Aid

Research suggests that members of poor and vulnerable groups are particularly prone to legal problems and experience more legal problems than higher income earners and more secure groups. Research on the Legal Problems of Everyday Life (Department of Justice Canada, 2007) demonstrates that individual problems may multiply from one legal problem leading to other socio-economic and health problems. Legal aid is an integral part of the criminal justice system. Evidence suggests that criminal legal aid has the potential to produce a wide range of benefits – from broad benefits to the legal system as a whole to economic, social and health benefits for society and individuals (Prairie Research Associates, 2014).

Studies show that economically-disadvantaged persons who are accused of criminal offences are among the more marginalized and vulnerable members of the population, and often suffer from other issues, such as low literacy, low education, mental health issues, or addictions. These issues prevent these litigants from being able to effectively advocate for themselves, and many are incarcerated as a result of not being represented by legal counsel (Buckley, 2010; Department of Justice Canada, 2012; Matthews, 2012).

As well, legal aid is integral to fulfilling obligations under the Canadian Charter of Rights and Freedoms --- including the right to a fair trial (section 11(d)); to life, liberty, and security (section 7); and to equal protection and equal benefit of the law (section 15) (Canadian Bar Association, 2014).

Criminal legal aid helps to eliminate inefficiencies within the court and justice system. The effects of self-represented individuals on the justice system are many and include: an increase in delays; a reduction in the possibility of early resolution; and increased potential for unjust results (e.g. higher rates of remand, harsher sentences, inappropriate guilty pleas, and wrongful convictions), all of which increases costs to the court system and corrections. In addition, police officers and social workers can become tied up in court delays, contributing to inefficiencies in the use of these resources (Matthews, 2012).

Studies show that legal aid programs produce a variety of socio-economic, health and legal benefits. The links between poverty, legal, and social issues have long been established in legal aid literature. Studies show that poverty generates specific legal and social problems, and that restricted access to justice can have a variety of negative outcomes --- from reduced health to increased social isolation and conflict (Martin, 2002). Evidence indicates that investments in legal aid can save money in areas of government spending, such as health and social assistance (Matthews, 2012).

Annex 4: Access to Justice Related Initiatives

A broad range of initiatives have been undertaken, at both the national and federal levels, which have an access to justice and a legal aid link. Some of these initiatives are discussed below.

Canadian Bar Association’s Reaching Equal Justice Report

The Reaching Equal Justice report, released in December 2013 by the Canadian Bar Association, offers a national strategic framework for change. This includes a vision of an inclusive justice system that can be achieved through work by all members of the justice community on 31 targets, with milestones to mark progress and actions to begin immediately. It encourages a national conversation to develop a common vision of what needs to be done to achieve a system that provides equal justice for everyone.

The Canadian Bar Association notes that the key to providing a seamless continuum of legal and non-legal services, and ensuring that representation is available when needed is to have meaningful access to justice. The concept of ‘legal health checks’ are introduced, whereby legal aid providers have the capacity to follow-up with clients on a routine basis to prevent/minimize frequent legal problems. These individual and systemic health checks are targeted to become a routine feature of the justice system by 2020.

With regards to publicly-funded legal services, the report identifies three main components needed to regenerate legal aid:

national legal aid benchmarks with a commitment to their progressive implementation, monitored through an open, transparent process;
reasonable eligibility policies that give priority to people of low and modest means but provide graduated access to all residents of Canada who are unable to retain private counsel (including through contributory schemes); and,
effective legal service delivery approaches and mechanisms designed to meet community needs and the meaningful access to justice standard.

The report identifies federal, provincial and territorial governments in establishing a national working group to develop national benchmarks. The Canadian Bar Association states that the Association of Legal Aid Plans could consult with the Federal-Provincial-Territorial Permanent Working Group on Legal Aid on an action plan to initiate work on these national legal aid benchmarks.

While the Reaching Equal Justice Report is largely focused on the need to improve access to justice in the civil justice system, the report suggests that because there is no hard and fast dividing line between criminal and non-criminal matters, the report, and some of its proposals for change, are also relevant to the criminal justice system, including criminal legal aid. For this reason, this report, and the continuing work of the Canadian Bar Association, will be used to further inform the work of the Department of Justice Canada in its development of a strategy for maximizing the federal investment in criminal legal aid.

National Action Committee on Access to Justice in Civil and Family Matters Final Report – A Roadmap for Change

In 2008, the National Action Committee on Access to Justice in Civil and Family Matters, chaired by the Supreme Court of Canada’s Justice Thomas Cromwell, was established to increase the public’s accessibility to the civil justice system. The Committee envisioned:

A society in which the public has the knowledge, resources and services to effectively deal with civil and family matters by: prevention of disputes and early management of legal issues, through negotiation and informal dispute resolution processes, and where necessary, through formal dispute resolution by tribunals and courts.

The Committee’s work culminated in a final report that identifies a national roadmap for improved access to justice in Canada. As well, the Committee identified the following guiding principles for change in moving forward:

Put the Public First – focus on the people who need to use the system, especially vulnerable populations and remember that the system exists to serve the public.
Collaborate and Coordinate – improve collaboration, coordination and integration of services within jurisdictions, across and within all sectors and aspects of the justice system, and with other social service sectors and providers.
Prevent and Educate – focus on both prevention and resolution of disputes and provide adequate information for people to deal effectively and efficiently with disputes.
Simplify, Make Coherent, Proportional and Sustainable – need to concentrate on simplicity, coherence, proportionality and sustainability at every stage of the process.
Solutions need to be timely, fair and cost-effective – procedures must be simple and proportional for the entire system to be sustainable.
Take Action – need concrete action and to move beyond wise words and bridge the implementation gap to make a meaningful difference in the lives of people who rely on the justice system.
Focus on Outcomes – a shift in focus from process to outcomes. Providing justice, not just in the form of fair and just process but also in the form of fair and just outcomes, must be our primary concern.

Although the work of this Committee focused largely on improving access to justice in civil and family matters, many of the Committee’s findings are applicable to improving access to justice in the criminal justice system. As such, these findings are particularly relevant to the work being undertaken in the context of the federal criminal legal aid study.

Economics of Policing

The economics of policing is a wide-ranging issue related to the efficiency and effectiveness of policing and of public safety more broadly. Like legal aid, it has become increasingly relevant as all levels of governments grapple with demonstrating the value of increasingly costly public services at a time of fiscal constraints.

In 2012, under the leadership of Public Safety Canada, an economics of policing initiative was launched with the expected goals to: increase the efficiency and effectiveness of policing in Canada; encourage learning, innovation, and the application of best practices; and contribute to improved public safety outcomes and social well-being through partnership and integrated approaches.

In response, all federal, provincial and territorial Ministers responsible for justice and public safety agreed to convene a Summit (January 2013) on the economics of policing; to share information across jurisdictions on policies and practices targeted at improvements on the efficiency and effectiveness of policing (ongoing – an index was released in August 2013)^{Footnote 35}; and, to develop a shared forward agenda or strategy for policing and public safety in Canada. The main principles behind the Shared Forward Agenda are to cooperate collectively in those areas where it makes sense to do so, while respecting jurisdictional responsibilities and adopt a comprehensive and holistic approach to public safety.

While there are obvious differences between the delivery of police services and legal aid, there are also many parallels that can be drawn:

Both policing and legal aid are key to the effective and efficient functioning of the criminal justice system
Policing, like legal aid, is experiencing service delivery challenges, the need to respond to vulnerable groups (changing nature of crime, need to deliver services in rural and remote communities)/pressures (i.e. increasing costs). Both policing and legal aid costs have been on the rise
Policing and legal aid fall under the constitutional administration of justice which resides with the provinces
The federal government contributes to the costs of policing and legal aid services.

In developing a strategy towards maximizing the federal investment in criminal legal aid, and in light of these similarities between policing and legal aid, it may be helpful to examine the work undertaken by Public Safety Canada with respect to the economics of policing to determine what lessons learned could be applied to the federal criminal legal aid study.

Mental Health Commission of Canada’s National At Home/Chez Soi Final Report

In 2008, and with federal funding ($110M), the Mental Health Commission of Canada and groups of stakeholders in five cities (Vancouver, Winnipeg, Toronto, Montreal and Moncton), implemented a pragmatic, randomised controlled two-year field trial of the Housing First (HF) initiative^{Footnote 36} referred to as At Home/Chez Soi.^{Footnote 37}

Results of the study show:

The HF intervention produces more appropriate community-based service use and better responsiveness to the needs of participants, all of whom were experiencing homelessness and living with mental illness.
Providing permanent housing and wrap-around services to high risk and moderate risk homeless persons living with mental illness and other problems, results in a cost-savings to other sectors in the system (e.g. reduced police intervention, reduced hospital emergency room visits).
Supportive housing programs can reduce the costs associated with health care and the justice system. One study found that investing in supportive housing costs $13,000 to $18,000 per year; in comparison, to traditional institutional responses like prisons and psychiatric hospitals which cost $66,000 to $120,000 per year.

The study cautions, however, that an investment in HF does not necessarily mean a reduction in the investment in other services. Rather, these services can be made available to others in need.

In developing a strategy for maximizing the federal investment in criminal legal aid, studies like this one, provide a rich level of information that contributes to an improved understanding about the impact that innovations, such as supportive housing and wrap around services, have upon individual lives and justice system costs.

International Innovations in Public Sector External Service Delivery

Undertaken by the Treasury Board of Canada Secretariat, this study examined notable innovations in the external delivery of services that can inform Canada’s thinking about the next generation of service delivery initiatives. The study results are presented in three parts: Part I examines the “what” of service delivery by examining service innovations in several areas (e.g. access, personalization); Part II focuses on the “how” of service delivery by considering practices in service management, including performance measurement and service policies and strategies; and, Part III contains recommendations for action.

Although the study results are intended to inform the federal government as it moves forward in delivering cost-effective and efficient services, several sections of this report may be particularly relevant to the federal criminal legal aid study including those sections of the report focused on: Collaborative and Integrated Service Delivery, Inter-jurisdictional Partnerships; Inter-Sector Partnerships, Personalized Service Delivery; and Measuring Service Delivery Performance.

United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems

In December 2012, the United Nations General Assembly formally adopted the United Nations (UN) Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems. These UN Principles and Guidelines reflect the collaborative efforts of 40 member states, including Canada, and outline the core principles that countries should follow to provide effective access to criminal legal aid, particularly with respect to the most vulnerable in society.

The endorsement of these non-binding Principles and Guidelines by the UN General Assembly represents a positive and constructive step forward for access to justice and legal aid, both in Canada and abroad, signifying the importance of access to justice and the ongoing provision of legal aid in criminal justice systems. Extracts of these Principles and Guidelines include:

Legal aid is an essential element of a fair, humane and efficient criminal justice system that is based on the rule of law.
States should consider the provision of legal aid their duty and responsibility.
States should recognize and encourage the contribution of lawyers’ associations, universities, civil society and other groups and institutions in providing legal aid.
States should, where appropriate, make adequate and specific budget provisions for legal aid services that are commensurate with their needs, including by providing dedicated and sustainable funding mechanisms for the national legal aid system.

An underlying notion of the UN Principles and Guidelines suggest that member states, where appropriate, undertake measures to “maximize the positive impact that the establishment and/or reinforcement of a properly working legal aid system may have on a proper functioning criminal justice system and on access to justice”. Results of the federal criminal legal aid study will be an opportunity for the Department of Justice Canada to demonstrate, both internationally and domestically, its longstanding commitment to access to justice, through legal aid, and to helping to ensure the effective functioning of the criminal justice system.

Annex 5: Legal Aid Research Findings

The Panel identified four themes to categorize the research findings with respect to criminal legal aid innovations and best practices: accessibility, effectiveness, efficiency, and accountability.

“A good innovation addresses all four pillars: accessibility, effectiveness, efficiency, and accountability.”

Mr. Richard Zorza

Accessibility

The innovations relating to accessibility of legal aid fall into the following three categories:

Multiple entry points and channels (in person, telephone, online, video applications)
Streamlining processes (e.g. improved & flexible eligibility guidelines, simplified applicationprocesses, on-line lawyer acknowledgement)
Client-centered approach (e.g. holistic delivery, working with community organizations, reduced legal aid wait times)

Effectiveness

Innovations in the effectiveness of legal aid and improvements to service delivery include:

Integrated service delivery (e.g. community outreach, legal aid defence counsel in specialized courts, specialized services for targeted groups(e.g. youth, persons with mental health/ addictions, Aboriginal people)
Appropriate and proportionate service delivery (triage, information and short advice services, (Expanded) Duty counsel)
Collaboration (e.g. systems approach to change – increased collaboration between key players; opportunities to share information/tools/ resources across legal aid plans (e.g. Association of Legal Aid Plans of Canada)

Efficiency

Efficiency considers methods to promote or increase cost-effectiveness of legal aid, including:

Increased use of technology (call centres, enhanced information sharing approaches - i.e. between legal aid and staff or private bar lawyers, Crown disclosure; video bail hearings)
Accelerated processes (improved application processing, earlier service provision, streamlined billing processes)
Managing system delays (continuity of counsel - e.g. expanded duty counsel, full service duty counsel, legal aid counsel in Drug Treatment Courts, Mental Health Courts; reduced choice of counsel, improved information sharing)
Balanced delivery approaches (paralegals, law students, other professionals; staff model, private bar model, mixed model)

Accountability

With respect to accountability, the research focuses on examining the various factors influencing the development of innovative legal aid approaches, including:

Change management (systematic program reviews, organizational structural changes, sustainability, cultural shift, pilot projects, communication with stakeholders, leadership)
Drivers of innovation (limited resources, mandated services, business approach, proactive response to needs – e.g. Big-case management)
Performance measurement (evidence-based delivery, operational requirements - i.e. audits, evaluations; tools to monitor/forecast demand, quality of service and delivery).

The Federal Role in Criminal Legal Aid

The research examined various innovations and best practices that legal aid plans are using. As well, it explored the federal role in supporting the development and implementation of innovations and best practices particularly with respect to sustaining accessible, efficient, and cost-effective criminal legal aid services within current federal funding levels.

While funding levels continue to be a primary concern, key informants identified the following other roles for the federal government in supporting legal aid:

Having a vision
Promoting a culture of measurement
Serving an advocacy/leadership role
Encouraging an interdisciplinary approach to legal aid
Conducting research
Facilitating information sharing
Considering the effects of policy and legislation on legal aid.

Footnotes

Footnote 6

The amount of $112.4M includes an increase of $473K, related to additional program costs associated with the creation of Nunavut as a territory, which was added to the permanent base funding for the territories in fiscal year 2000-2001. The amount of $111.9M, that may sometimes be reported, does not capture this increase.

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Footnote 7

Funding to the provinces is provided through the contribution agreements respecting legal aid in criminal, youth justice and immigration and refugee matters. Funding to the territories is provided through the Access to Justice Services Agreements which combine funding for Criminal and Civil legal aid, Aboriginal Courtwork and Public Legal Education and Information.

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Footnote 8

The second component of the Project consisted of a joint research program, the Legal Aid Project, initiated by the Federal-Provincial-Territorial Ministers Responsible for Justice to examine long-term legal aid needs in Canada.

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Footnote 9

Department of Justice Canada, Legal Aid Directorate

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Footnote 10

As fiscal year 2007-2008 marked a new mandate for the Legal Aid Program, the focus of the evaluation was on the program impact over fiscal years 2007-2008 to 2010-2011.

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Footnote 11

Revenues refer to all monies received by the legal aid plan for assistance in the provision of legal aid services. The sum of the sub-components of total legal aid plan revenues may not add to the total due to rounding.

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Footnote 12

Government contributions refer to both federal and provincial/territorial monies allocated to the legal aid plan through the provincial or territorial government.

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Footnote 13

Client contributions refer to monies collected from individuals receiving legal aid services, while cost recoveries consist of the monies recovered from a judgment, award or settlement.

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Footnote 14

Contributions of the legal profession include all monies received from the law profession other than trust account interest amounts.

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Footnote 15

Other revenues may include, among others, revenue from investments, research sales and general interest earnings.

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Footnote 16

5-Year Trends in Direct Service Criminal Legal Aid Expenditures Compared with other Justice System Expenditures; 2002-03 to 2006-07; Research & Statistics Section, Department of Justice Canada, January 2008.

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Footnote 17

For the period 2005-2006 to 2006-2007 criminal legal aid expenditures declined by 4.9% largely as a result of an increase in expenditures reported by Ontario for 2005-2006 which reflected an accounting action rather than an actual increase in expenditures. As a result, a one-time cost of $33.3M was added to the CCJS annual report. This adjustment altered the national total for criminal legal aid expenditures for 2005-2006.

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Footnote 18

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Footnote 19

Newfoundland & Labrador, Manitoba, Saskatchewan, Alberta, Northwest Territories and Nunavut.

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Footnote 20

Prosecutions expenditures data from, Newfoundland & Labrador, Manitoba, Saskatchewan and Alberta were used. Criminal legal aid expenditures data was available for Manitoba, Saskatchewan and Alberta.

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Footnote 21

Data on court, prosecution and corrections costs were provided through the PWG and reflect provincial costs.

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Footnote 22

Federal policing costs are not available prior to 2003 and therefore comparisons were possible from 2003 to 2006.

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Footnote 23

“5-Year Trends in Direct Service Criminal Legal Aid Expenditures Compared with other Justice System Expenditures; 2002-03 to 2006-07”; Research & Statistics Section, Department of Justice Canada, January 2008.

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Footnote 24

In Canada, legal aid data is collected by Statistics Canada, Canadian Centre for Justice Statistics through a national Legal Aid Survey. This survey annually collects legal aid data from the 13 legal aid plans across the country. Data is collected on a lag year basis (i.e. one year behind).

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Footnote 25

Expenditures refer to the actual gross dollars expended by the legal aid plan in a given fiscal year. Expenditures on behalf of the plan by other agencies are not included. The sum of the sub-components of total legal aid plan expenditures may not add to the total due to rounding.

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Footnote 26

Direct Criminal Legal Aid Expenditures are the sum of payments made to private law firms and the costs of legal service delivery by legal aid plan staff. These expenditures include monies spent on the provision of legal advice and representation services to clients including special target groups. All law office and contracted community clinic expenses are included (for example, staff salaries, benefits and overhead expenses).

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Footnote 27

Central Administrative Expenditures include monies spent on legal aid head office functions and on offices that do not employ staff to advise and represent clients.

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Footnote 28

Other Expenditures refer to other monies expended by the legal aid plan and may include capital expenditures.

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Footnote 29

In 2014, to provide increased access to legal aid, Quebec raised its legal aid eligibility guidelines.

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Footnote 30

For purposes of identifying current levels of financial availability, data was gathered from legal aid plan and provincial/territorial government websites.

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Footnote 31

There is no specific level of income at which an applicant will automatically qualify for Legal Aid. Instead, an Intake Worker will consider the applicant’s assets, income, debts and expenses to determine if the applicant has the ability to pay for a lawyer without going into heavy debt. The Intake Worker will also consider the assets, income, debts, and expenses of the applicant’s spouse and any dependents.

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Footnote 32

No amount established available. Legal Aid determines who is eligible for legal representation taking into consideration income, expenses, assets, any liabilities, family situation and type of legal services required.

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Footnote 33

These amounts reflect a range among 6 geographical zones.

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Footnote 34

The Legal Services Regulations set out principles for financial eligibility whereby an applicant is eligible to receive legal aid (a) where the applicant receives all or most of his or her income from social assistance; and (b) where the legal fees for services rendered outside the plan would reduce the applicant’s income to a level whereby he or she would become eligible for social assistance, in which case, he or she may be required to contribute towards the payment of the costs.

Return to footnote 34 referrer

Footnote 35

As part of federal, provincial and territorial Ministers' commitment to improve the sharing of information, governments and police services have worked together in compiling a database of innovative initiatives and approaches that contribute to police efficiency and effectiveness while helping keep communities safe. The result is the Index of Policing Initiatives, an evergreen, online search engine and the first police information-sharing tool of its kind in Canada.

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Footnote 36

Housing First (HF) is an evidenced-based intervention model (based in New York City), which is in direct contrast to the traditional “treatment then housing” approaches, and involves providing immediate and permanent housing and wrap-around supports to individuals who are homeless and living with serious mental ill.

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Footnote 37

The study objective was to identify what works, at what cost, for whom and in which environments. A total of 2,148 individuals participated in the study, with 1158 if these receiving the HF intervention. Upon entry to HF average costs per person annually was $22,257 for high needs participants and $14,177 for moderate needs participants. Two years after entry in the study, the costs dropped by $9.60 for high needs participants and $3.42 for moderate needs participants.

Return to footnote 37 referrer

Date modified:: 2022-08-25

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