Legal Aid Eligibility and Coverage in Canada
Inventory of Legal Aid Plans in Canada
Section 2 - Inventory of Legal Aid Plans in Canada
Statistics Canada, through the Canadian Centre for Justice Statistics (CCJS), systematically conducts a yearly survey of the legal aid plans in Canada. The published information can be found in Legal Aid in Canada: Resource and Caseload Statistics[6]. In addition, CCJS periodically publishes a description of each legal aid plan in their report Legal Aid in Canada: A Description of Operations.
The purpose of this section is to create an updated inventory of the legal aid plans in Canada, excluding the Territories. Unlike the Statistics Canada publications, this inventory focuses only on criminal legal aid and addresses only the financial eligibility criteria and coverage restrictions. It does not include areas such as tariffs for lawyers or expenditures. It does, however, draw upon the Statistics Canada publications and updates the information on each plan to the present day (as of January 2002).
In order to update this information, the legal aid plans across Canada were consulted along with their annual reports, business plans, Acts and regulations and in some instances, their policy manuals. It is important to note that this inventory simply summarizes the information from the plans.
The inventory lists the following areas:
British Columbia
The Legal Services Society (LSS) of British Columbia was established in 1970, and by 1979, the Legal Services Act was passed. The Act establishes the society as a corporation that is independent of both the provincial government and the law society. The LSS provides legal services to people who can't afford a lawyer and provides legal education and legal information to the people of British Columbia. The LSS provides these services through a mixed delivery system of staff lawyers and private bar lawyers.
Financial Eligibility
The Legal Services Society administers an income and assets test to determine financial eligibility. An applicant whose net household income and assets are below set limits is financially eligible for legal aid. Intake workers assess an applicants' financial status to determine their net household income and assets.
There are two maximum income levels: one for criminal and one for all other matters. These different levels were introduced in 1997 due to budgetary constraints. However, the financial eligibility limits for legal aid applicants were raised in 2000 to restore the number of criminal cases back to pre-1997 levels.
| Income | Assets | ||
|---|---|---|---|
| Household size | Criminal Cases (includes appeals) $ Net monthly income | All other cases (includes appeals) $ Net monthly income | Personal Property exemption (all cases) ($) |
| 1 | 925 | 1,002 | 2,000 |
| 2 | 1,388 | 1,504 | 4,000 |
| 3 | 1,620 | 1,755 | 4,500 |
| 4 | 1,792 | 1,941 | 5,000 |
| 5 | 1,975 | 2,140 | 5,500 |
| 6 | 2,147 | 2,326 | 6,000 |
| 7+ | 2,294 | 2,486 | 6,000 |
Source: Legal Services Society. Annual Report 2000-01.[ http://www.vcn.bc.ca/lssbc/]
Expanded Eligibility through Contribution
No
Income Definition
The LSS utilizes net income. Net income includes income from all sources including foster care, student loans, maintenance payments received. The LSS allows the following deductions when assessing an applicant's finances: Child Tax Benefit, Family Bonus, GST payments, tuition or book fees. Net income is calculated by adding together income from all sources and subtracting deductions. Deductions include daycare expenses, child support payments, court fines, the costs of medication and the cost of an interpreter for legal proceedings.
The LSS will consider the income and assets of both the applicant and his/her spouse when determining eligibility. If there is a pooling of income from the outset, then the plan will take into consideration the household income. Following two years of co-habitation, both partners' incomes are considered in determining eligibility.
Family Definition
The income test uses the number of people in a household not family type. The regulations refer to spouse (married or common-law) and dependents.
Assets Test
Applicants whose income is below the guidelines may own some assets and still be eligible for legal aid.
There are five asset categories. Each category has different limits, but, generally, applicants may have some personal property (e.g. reasonable household furnishings), a small amount of liquid assets (e.g., cash, bank accounts), and equity up to $5000 in vehicle(s), without becoming ineligible for legal aid.
The categories are as follows:
- Family home - the applicant is ineligible if the family home is considered disposable and there is equity available to the applicant after a reasonable exemption has been deducted. If the applicant has a significant share of equity in the family home, eligibility may be reassessed at a later date.
- Real property (any kind of real estate except the family home) - The applicant is ineligible if her/his total share of disposable real property exceeds $10,000.
- Vehicles - The applicant is ineligible if the total share of equity in vehicle(s) exceeds $5,000.
- Business assets - The applicant is ineligible if he or she has any available equity in business assets.
- Personal property (excluding vehicles but including, for example, savings accounts, RRSPs, furniture, jewellery, etc.) - The applicant is ineligible if her/his total equity in personal property exceeds the limits based on household size.
| Household Size | Personal Property exemption (all cases) ($) |
|---|---|
| 1 | 2,000 |
| 2 | 4,000 |
| 3 | 4,500 |
| 4 | 5,000 |
| 5 | 5,500 |
| 6 | 6,000 |
| 7+ | 6,000 |
Client Contributions
From 1982 until 1995, clients were asked to contribute toward their legal costs. The contribution was $10 for those on or eligible to receive social assistance and was $30 for everyone else. This contribution was inconsistently collected.
In July 1995, the LSS established a sliding scale of client contributions according to income guidelines. Applicants whose household income after deductions falls within the LSS contribution guidelines must pay a contribution ranging from $25 to $100 before they can be referred to a lawyer or staff paralegal. (Contributions may be deferred for CFCSA and family emergency referrals.) As a condition of receiving legal aid, clients must agree to repay some or all of their legal aid costs if their financial situation improves and on reassessment of their eligibility.
| Household size | Monthly household income after deductions ($) | ||||
|---|---|---|---|---|---|
| 1 | 0 - 644 | 645 - 678 | 679 - 775 | 776 - 872 | over 872 |
| 2 | 0 - 923 | 924 - 972 | 973 - 1,111 | 1,112 - 1,250 | over 1,250 |
| 3 | 0 - 1,129 | 1,130 - 1,189 | 1,190 - 1,359 | 1,360 - 1,529 | over 1,529 |
| 4 | 0 - 1,283 | 1,284 - 1,350 | 1,351 - 1,543 | 1,544 - 1,736 | over 1,736 |
| 5 | 0 - 1,396 | 1,397 - 1,469 | 1,470 - 1,679 | 1,680 - 1,889 | over 1,889 |
| 6 | 0 - 1,489 | 1,490 - 1,567 | 1,568 - 1,791 | 1,792 - 2,015 | over 2,015 |
| 7 or more | 0 - 1,584 | 1,585 - 1,665 | 1,666 - 1,903 | 1,904 - 2,141 | over 2,141 |
| Assessed Contribution | None | $25.00 | $50.00 | $75.00 | $100.00 |
Substantive Coverage
Legal aid is available to financially eligible applicants if they are charged with an indictable offence (the most serious offence, carrying a penalty of at least two years in prison), or a summary conviction offence (less serious than an indictable offence, usually carrying a maximum penalty of a $2,000 fine and six months in jail). Hybrid offences (where the prosecutor decides whether the offence will be dealt with as an indictable or a summary conviction offence) are also covered.
LSS under its mandate must provide legal representation to financially eligible people charged with criminal offences who, if convicted:
- are likely to go to jail;
- might lose their means of earning a living;
- could be deported from Canada.
There are also special circumstances whereby applicants may also receive legal representation if they:
- do not face imprisonment but have a mental or emotional disability that prevents them from defending themselves;
- are Aboriginal and their ability to follow traditional livelihood of hunting and fishing could be affected if they are convicted of an offence.
Criminal Appeals
Criminal appeals are covered only if they fall within the regular coverage and have a reasonable chance of succeeding. Applicants who are financially eligible for legal aid may be covered if they are responding to appeals initiated by another party. Otherwise, the LSS funds only those appeals and judicial reviews that fall under the Society's regular coverage criteria and have a chance of success. The Appeals Department of the LSS must approve all judicial appeals and all services to be provided in each case.
Duty Counsel
Clients do not have to be financially eligible to receive duty counsel services, but only those who meet the criteria are entitled to ongoing representation. From April through September 2000, there was a reduction of services due to insufficient funds. Duty counsel services in most British Columbia provincial courts were available only to accused persons being held in custody. An increase to the society's funding for 2001-02, announced by the province in March 2001, enabled the LSS to restore its services to include those not in custody.
British Columbia has a "Brydges-line," that is, a 24 hour toll-free telephone line to ensure access to legal advice to those who have been arrested or detained or, who are under investigation, but not yet charged and need emergency advice.
Coverage and Eligibility Reviews
Applicants who are refused legal aid have the right to have that decision reviewed. The Chief Executive Officer or his or her designate make final decisions on reviews. They must request an appeal within 21 days of receiving the decision.
The LSS has the right to refuse to provide legal aid. This can happen if the intake worker believes an applicant does not meet the financial eligibility criteria or has a problem that does not fall under the Society's coverage rules, or has not provided sufficient information to satisfy that they should receive legal aid.
Application Fee
There is no administration fee per se [9].
Sources: Legal Services Society. Annual Reports 1997-98, 1998-99, 2000-01.
Canadian Centre for Justice Statistics. Legal Aid in Canada: Description of Operations. Ottawa: Statistics Canada, March 1999. Cat. No. 85-217-XIB.
Personal communication with Ms. Sandy Shreve, Legal Services Society, British Columbia.
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