Legal Aid Eligibility and Coverage in Canada
In table 6-5, the income waiver allowances would allow 140,500 (4.7%) 18- to 35-year-olds to qualify for free legal aid in Ontario. A minute number of those above the after-tax LICO would meet the criteria. Among the low income young adults, 37.4% would qualify for free legal aid. When one examines the maximum allowance levels, one finds that 16.5% of young adults would qualify. Almost all low-income young adults would qualify at 97.5%, and 5.2% of those above the LICO would also qualify.
Under the income waiver allowances, 36.5% of low-income men and 38% of low-income women would qualify for free legal aid, whereas under the maximum allowance levels, 94.4% of low-income men and 99.8% of low-income women would qualify. There is a small difference by family size. Thirty-four percent of low-income unattached individuals would qualify under the waivers, this increase to 39.6% for those in families with two or more people. Under the maximum allowances, 93.9% of low-income, unattached individuals would qualify and 100% of those in families with two or more people would qualify.
Under the maximum allowance levels, 362,700 low-income young Ontarians would qualify, while under the income waiver this drops to 139,000. Approximately 9,400 low-income young adults would not be covered.
In table 6-6, we find that 130,700 (32.5%) low-income young Québecers would be eligible for free legal aid. This increases to 264,600 (65.8%) low-income young adults under the expanded eligibility criteria. However, approximately 138,000 low-income young adults would still not qualify even with the expanded criteria. No persons above the before-tax LICO would be eligible for free legal aid and only a small amount would qualify under the expanded eligibility criteria.
The proportion of low-income young men and women who would qualify for free legal aid is 32.1% and 32.8% respectively. This increases to 63.3% and 67.9% of low-income men and women under the expanded criteria.
The proportion of unattached individuals that would qualify for free legal aid is 49.4%; however, this decreases to 23.2% for those in families with two or more people. While the expanded criteria allows for a greater proportion of people to access legal aid, we still see a decrease for those eligible by family size. While 74.8% of low-income, unattached individuals would meet the expanded criteria, the proportion decreases to 60.8% of persons in families who would be eligible.
In Table 6-7, we observe that 48,100 young Nova Scotians would qualify for legal aid. This represents 20.4% of 18- to 35-year-olds in Nova Scotia, with the majority falling below the before-tax LICO.
There is some difference by gender - 92.7% of young women in low-income would qualify, but only 81.2% of men in low-income would qualify. Women make up a larger proportion of all those who qualify.
Unattached individuals are more likely (92.9%) than those in families (84.6%) to be able to access legal aid.
Eighty-eight percent of 18- to 35-year-olds with a low income would qualify for legal aid. There remains approximately 6,300 (12%) of those with a low income who would still not qualify.
In table 6-8, we note that 2,800 persons aged 18 to 35 years (8%) would be eligible for legal aid. Of the 5,400 low-income young adults in Prince Edward Island, only 51.5% would qualify. Some 2,600 would remain ineligible.
The sample size for Prince Edward Island is too small to examine gender or family size.
We observe in Table 6-9 that 4,700 (3.1%) of young adults, aged 18 to 35 years, would be eligible for legal aid. Among low-income youth, only 19.2% would qualify for legal aid. This suggests that approximately 19,900 of those persons with a low income would not be able to access legal aid.
The sample size for Newfoundland and Labrador is too small to examine gender or family size.
What conclusions can be reached from this information?
It is difficult to make any definitive statements about the different jurisdictions given the discretion that exists in almost all the plans. These data do not take into account any discretion or any of the complex assessments made by the programs (e.g., assets test, examination of expenses, liabilities and debts, or the ability of an applicant to find a lawyer). But, we can comment on the plans starting point for financial eligibility - the income levels and, to a limited extent, the liquid assets.
If the purpose of the plans is, for the most part, to provide representation in criminal matters to those who cannot afford their own lawyers, one would expect the eligibility criteria to match some sort of poverty measure. In this case, the low income cut-offs (before and after-tax depending on the situation) were chosen - while not perfect, they are widely accepted as a benchmark for judging income adequacy.
What we find, overall, is that the legal aid guidelines in all jurisdictions tend to be well below the corresponding LICO levels. Including assets with the income guidelines tends to decrease the gap between the guidelines and the LICO amounts. Although as stated earlier, income is not the same as liquid assets. Liquid assets exemptions may provide modest savings for emergency situations. They should not be considered as a component of income in the financial eligibility criteria.
The largest differences between legal aid eligibility guidelines and the LICO figures are observed in the larger urban areas. The differences are substantially reduced for smaller urban centres and particularly for rural areas, where we often find that the guidelines exceed the LICO. This is primarily a by-product of the fact that the LICO takes into consideration the cost of living in different sized communities and, therefore, allocate smaller cut-offs to rural areas and much larger cut-offs to the larger urban centres. What this means, is that poor families in rural areas are more likely to qualify than are poor families in the larger urban centres.
In general, we find that the proportion of poor families who are eligible can range from a low of 18% in Newfoundland and Labrador to a high of 87% in Nova Scotia. As is the case for families, we find that the proportion of poor young adults (18 to 35 years) who are eligible for legal aid ranges from a low of 20.7% in Newfoundland and Labrador to a high of 88.1% in Nova Scotia. What this tells us is that the guidelines do not match the low-income cut-offs. And thus, poor families and individuals who may need legal aid would not be financially eligible. What this also demonstrates is that there are differences between the various plans in terms of financial eligibility. There is great disparity between the plans as to how poor applicants must be before they can expect to qualify for legal aid.
Most plans do expressly state that those applicants receiving social assistance are automatically eligible. Social assistance (or welfare) is an income program of last resort for families. It provides money and resources to individuals and families whose incomes are inadequate to even meet their basic needs and who have exhausted all other sources of help. Social assistance varies from province to province. The National Council of Welfare in their annual report on welfare incomes have consistently commented on how low the social assistance income levels are. In fact, they have compared them to the LICO and to average income. They have stated: "In all the years the Council has tracked welfare incomes, we have found that incomes in all parts of Canada fall well below the poverty line and represent a tiny fraction of average incomes." Basing the legal aid guidelines on social assistance represents only the very poor. It still allows for a significant number of lower income families to be without viable options. For example, the "working poor" would be ineligible to receive legal aid under such conditions. Poverty is closely associated with employment patterns and the number of earners in a household. Over the last two decades, the Canadian economy has failed to provide sufficient numbers of adequate employment. We have seen a deterioration of the quality and security of job opportunities available. The rate of working-poor households in 1997 was 6.7%. The rate of working-poor households has increased by 95% since 1981. These households would be left without any real options.
These findings, of course, do not include the expanded eligibility plans that are found in several of the jurisdictions. Alberta, Manitoba and Québec have, to some extent, a two- or three-tiered system. Alberta, Manitoba, Ontario and Québec have set up a contributory system. That is, if the applicants fall within the necessary second or third set of guidelines and are willing to pay some pre-set amount (in Manitoba it can include the full cost of the services), they may be eligible for legal aid. Ontario has established a system whereby an applicant who exceeds the income waivers can still be eligible, if they do not exceed a series of allowances for shelter, basic needs and debts. Overall, these plans show a substantial improvement in the proportion of families who would be eligible. However, in the case of Québec only 69% of the low income families would be eligible. Almost 100% of poor families would be eligible in Alberta and Manitoba and 95% in Ontario. Again, like the situation for families, the expanded eligibility plans increase the proportion of those low-income 18- to 35-year-olds who may qualify for legal aid. Alberta, Manitoba and Ontario would allow almost 100% of those persons, 18 to 35 years, who have a low income to qualify. In Québec only 65.8% of young adults in low-income situations would qualify for legal aid. While the expanded eligibility criteria increases the proportion of low-income families, youth aged 18 to 35 years, and the "near-poor" (families and youth) who would be eligible, these data do not tell us whether this type of system acts as a deterrent for those families/young adults to apply for legal aid or what impact having to pay for these services has on their financial viability. It is assumed that those who are "near poor" will be able to cover their legal costs. But, no recent study has assessed the burden of having to pay for legal costs.
- Date modified: