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Patterns in Legal Aid - (Second Edition)

EXECUTIVE SUMMARY

The Government of Canada maintains a national cost-shared legal aid program through a series of agreements with the provincial and territorial governments. The program provides legal representation to:

• indigent adults accused of committing criminal offenses;
• juveniles charged under the provisions of the Young Offender's Act;
• welfare recipients faced with a variety of civil legal problems; and,
• refugees through provisions in the Immigration Act.

This report focuses on legal aid provided to the first two of these populations.

Under the terms of the criminal legal aid agreements, Canada and the provinces conduct periodic evaluations of the legal aid programs. To date, evaluations have been conducted in six provinces.

This report summarizes the principal findings accumulated through the six evaluation reports and a number of smaller studies, and analyses national data sets provided by the Canadian Centre for Justice Statistics (CCJS) and the Department of Justice.

Findings are organized around five sets of issues of federal interest:

1. Federal Visibility
   
   • No significant problems with federal visibility currently appear to exist.
     
2. Accessibility
   
• Wide intra- and interjurisdictional variations in the proportion of criminal charges covered by legal aid and in the approved legal aid application rate that cannot be explained by variation in crime or poverty indicators point to a lack of uniform and equitable access to legal aid across Canada.
  
3. Eligibility
   
• Evidence from the evaluations suggests that legal aid eligibility criteria adopted in the provinces and territories tend to be somewhat inflexible and inflexibly applied.
  
4. Effectiveness and Impact
   
• Client satisfaction surveys show very high levels of satisfaction with legal aid services across Canada.
  
• Surveys of judges and lawyers show general satisfaction with the quality of legal aid services.
  
• Outcome studies show no difference in the proportion of guilty outcomes experienced by clients of legal aid staff lawyers and private counsel handling cases on referral. Staff clients, however, are sentenced to jail less often than private bar referral clients. These findings hold even when type of case and client are controlled.
  
• Lawyer activity studies show that private lawyers handling cases on referral invest substantially more time per case than do legal aid staff lawyers and that staff lawyers tend to plead clients guilty earlier and more often than do private lawyers.
  
5. Cost
   
• The evaluation studies and the national data sets show wide variation in the cost of legal aid from jurisdiction to jurisdiction across Canada.
  
• Both intrajurisdictional studies and interjurisdictional data show a cost advantage to the staff mode of legal aid delivery over the private bar referral mode of delivery.
  
• Examination of current patterns of expenditure and payment to lawyers reveals that there is substantial variation from one jurisdiction to another in the compensation of lawyers doing essentially similar legal aid work. This variation appears to relate to the mode of delivery.

Two recommendations are advanced:

• Future legal aid evaluations should focus on cross-jurisdictional issues and federal interests.
  
• The current cost-sharing formula should be modified to provide incentives to increase the equity and the cost-efficiency of the legal aid system across Canada.