Legal Aid Eligibility and Coverage in Canada

Section 2 - Coverage Restrictions

When examining criminal coverage, we are essentially looking at two areas: indictable offences and summary conviction offences. Indictable offences are the more serious of the two categories with some offences carrying a maximum life sentence. Summary convictions are lesser offences that may result in a maximum of two years in prison and/or a $2,000 fine. There are also hybrid offences, whereby the Crown chooses whether the case is to be proceeded as an indictable offence or a summary conviction.

Table 1

Table 1 provides a summary of substantive coverage by provincial legal aid plans. Indictable offences are the serious cases that the legal aid plans prioritize. Some indictable offences have prescribed minimum sentences and often carry a maximum sentence of five years. Indictable offences are typically covered by all the jurisdictions; however, Ontario and British Columbia have placed limitations on the indictable offences they cover. Ontario covers cases only if there is a probability of the individual going to jail, whereas British Columbia covers cases where there is a possibility of "going to jail, losing one's means of earning a livelihood, or being deported."

Generally, summary conviction offences are only covered if there is a likelihood of imprisonment or a loss of the ability to earn a livelihood if convicted. Summary conviction offences in Nova Scotia, Ontario, Newfoundland and Labrador and New Brunswick are now covered only if there is a likelihood of incarceration. In most cases, the probability of going to jail for summary conviction offences is low; according to the Department of Justice Canada, it is approximately 20%. New Brunswick Legal Aid admits that the majority of criminal cases that are denied coverage are basically summary conviction offences with a low probability of jail time if convicted. What types of cases would not be covered? A drinking and driving offence, unless it caused bodily harm, or a first-time shoplifting offence are examples of cases that would not typically be covered.

The limitations on summary conviction offences usually mean that first-time offenders are not likely to be represented, while repeat offenders would likely be covered since a person with a record has a greater chance of being convicted and sent to jail. New Brunswick Legal Aid, however, can also restrict access to services because of prior use of the system, or they may deny coverage to those charged with the same type of criminal offence as had been dealt with in the past.

Prince Edward Island Legal Aid is the only jurisdiction that covers all indictable and summary conviction offences. They state that they do not use the "likelihood of imprisonment" as test criteria, unless there is a need to limit coverage of minor matters. But overall, they act in the interests of the clients [18].

Are there any exceptions?

The Legal Services Society of British Columbia (LSS) make some exceptions to their coverage restrictions. The LSS provides representation to individuals with mental or emotional disabilities who are unable to defend themselves, even if there is no likelihood of imprisonment. They also provide representation to Aboriginal peoples who would lose their means of earning a livelihood (such as with hunting and fishing) if convicted.

Ontario's new provisions limiting coverage also recognize that there is a need for discretion when a summary conviction offence will lead to a jail sentence[19]. The LAO states that two groups of factors are used to determine if a client is eligible for a criminal legal aid certificate:

Systemic factors:

  • type of offence, seriousness of allegation and sentences usually imposed;
  • judicial practices in sentencing. For example, differences in local conditions explain why some judges impose harsher penalties for crimes that would not normally result in a jail sentence in other districts;
  • Crown practices in prosecuting. Screening forms alone are not sufficient to determine the probability of going to jail if convicted.
Personal factors:
  • mental competency of the accused;
  • whether or not they have been refused bail or cannot meet bail;
  • some disability that diminishes their capacity to be treated fairly.
(Excerpt from Legal Aid Ontario, Guide to Legal Aid Certificate Coverage, 2001, p.3)

Young offenders are provided with representation in criminal cases, in all jurisdictions under Section 11 of the Young Offenders Act. If the legal aid plans do not cover this representation, it usually falls under the jurisdiction of the Attorney General's Office or the provincial departments of justice. A judge can order that youth be provided with counsel.

The coverage of criminal appeals is another area where practices in the different jurisdictions can vary. Appeals can be initiated by the Crown or by the accused. In general, the plans state that appeals initiated by the Crown are covered; however, the circumstances may vary. While Alberta covers Crown appeals on indictable offences, appeals of summary convictions are covered only when the Crown is seeking a sentence of imprisonment. In Manitoba, Crown appeals are covered only if the case would have been covered originally through the legal aid plan.

Appeals led by the accused must have merit and must have a chance of succeeding in order to be granted legal aid coverage. In Manitoba, appeals by the accused are accepted only if the accused has received a jail sentence and the case has merit. In Québec, they are assessed on a case-by-case basis.

What happens to the less serious cases?

Most legal aid plans provide duty counsel services, and many minor types of cases can be, and are, dealt with through the use of duty counsel services. While duty counsel is available in most jurisdictions, it is not consistent in terms of availability and the types of services provided. For example, Prince Edward Island and Nova Scotia do not have formal duty counsels. In Prince Edward Island, staff lawyers provide advice at legal aid offices, and in Nova Scotia, there is an informal service. Several jurisdictions have full-service duty counsel. These include Ontario, Manitoba, New Brunswick and Alberta. While they perform the same duties as regular duty counsel, their services may also include negotiating an appropriate plea bargain or a release, or representation for the accused at sentencing. In most cases, however, duty counsel does not represent the accused at trials. In Ontario, Nova Scotia[20] and Manitoba, the accused must be financially eligible for legal aid in order to receive duty counsel services.

How often are criminal applications denied because of coverage restrictions?

The Canadian Centre for Justice Statistics at Statistics Canada examines a variety of areas surrounding legal aid, including the proportion of applications received for criminal coverage and the proportion that are refused as a result of financial ineligibility or other reasons, primarily coverage restrictions or a lack of merit. In most instances, if the case is not covered under the mandate of a particular jurisdiction, there is no need to administer the financial eligibility test. As can be seen in Table 2, the majority of refusals are for coverage restrictions[21]. Saskatchewan is the only exception. Québec is more even in its distribution of reasons for refusal. Although the exact reas[n for a denial of coverage cannot be isolated - for example, coverage restrictions versus a lack of merit or non-compliance - we can see that coverage restrictions have an overall impact on the number of refusals for legal aid. (These figures do not include denials of service before an application is filed. Applicants may be pre-screened before submitting a formal application.)

Table 2

What are the implications for low-income Canadians?

The restrictions on legal aid coverage suggest that a large number of people are not represented in the criminal court system. While people accused of serious crimes are still covered, minor offences may or may not be. This means that applicants who are ineligible for legal aid may end up with a conviction on their record, which can have serious implications for the future because a second conviction can lead to a stricter sentence. The Ontario Attorney General’s Office and the Canadian Bar Association have found that "pleading guilty to "get it over with" is an increasingly common phenomenon as many more accused are unable to secure legal representation to assist them in the bail process."[22]

This concern was reiterated in a discussion paper written for the Canadian Bar Association (CBA). The CBA, through several consultations, found that people often represent themselves in court because they have no other alternatives. As a result,

  1. the perception of the criminal bar is that the unrepresented accused tend to plead guilty, possibly because of an inability to understand the proceedings or to understand that a defence exists;
  2. the perception of the bar is that unrepresented individuals are more likely to be convicted and to receive stiffer sentences.[23]

Low-income people are heavily over-represented in the criminal justice system. As a result, legal aid services are particularly important to this group. Even when the end result is not a prison sentence, people who are economically disadvantaged may suffer a disproportionate punishment for their crime. As stated earlier, about 20% of summary convictions incur a jail sentence, usually of three to six months; the other 80% are dealt with using alternative measures, or fines are levied. Previous research, however, has shown that these people often end up in jail because they are unable to pay the fine.[24] In essence, it means that even with payment schedules, the system is putting an additional financial burden on the very group that could not afford to hire a lawyer to address the original crime.

Because full service coverage is becoming more and more restricted, many of the legal plans look to duty counsel to deal with minor issues and to take on greater work loads. Despite the valuable services provided by duty counsel, there is no way to assess whether the use of these services is always in the best interests of the accused. A recent assessment by the Ontario Attorney General’s office found that duty counsel have had their caseloads increase, and they are now dealing with more complex issues. And duty counsel have expressed concerns over the rushed manner in which they must provide service to clients.[25] In some instances, even these services are not available because of staffing or funding issues. Both Ontario and British Columbia have had difficulties in the past providing duty counsel services. In the mid- to late- 1990s, Ontario reported an increase in the number of accused who were unrepresented in their criminal court cases, largely due to the lack of availability of duty counsel. In British Columbia, due to lack of funding, duty counsel services were reduced between April and September 2001 to include only those accused who were already in custody. At present, the LSS is developing a "hierarchy of services" as the Attorney General of British Columbia begins to pass the costs of many services back to the legal aid society.[26]

Not only do these restrictions result in disparities between the services that are available among the provinces, they may also be resulting in inconsistencies within a particular province. Through their province-wide consultations, the Report of the Ontario Legal Aid review uncovered that "the impact of the reduction in criminal law services has resulted in regional differences in the level of representation available. Some areas report a higher reliance on duty counsel or student legal aid clinics and others report a higher number of unrepresented cases."[27]

What is evident is that while the intent of legal aid plans − and the federal-provincial cost-sharing agreement − is to provide legal services to those who are economically disadvantaged, the plans are limiting this important and vital service. Distinctions are being made between very serious crimes and all other types of crime without addressing the important ramifications of convictions of any type on the lives of low-income Canadians and the implications this may have on their future employment, income and educational opportunities.

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