A Perspective on Legal Aid in Canada

Our national, decentralized, legal aid system is an important part of the access to justice landscape in Canada. Because of the presence it commands within the justice system overall, legal aid has the potential to play a crucial role in expanding access to justice in Canada. Innovation has long been a defining feature of legal aid, driven by the perennial need to do more with less or, at least, with less than was required. As to what we mean by a “legal” problem, justice and access to justice evolve with innovation and new ways of thinking. Legal aid plans are at the forefront of new innovations in service delivery, leading to an expansion in the traditional scope of service and the population served. In view of the legacy and promise of legal aid, it is of more than casual interest to keep an eye on the health of legal aid in Canada.

The latest legal aid resource and case load numbers are available from Statistics Canada on CANSIM (Tables 258-0001 and 258-0004 to 258-0016) and in a Juristat entitled Legal Aid in Canada, 2013/2014. Expenditures remained essentially stable, declining by 0.3% from 2012-13 to 2013-14 from $816.9 million to $814.1 million. There were declines in both criminal and civil legal aid. Total applications for service were down by 3.4% for criminal legal aid and up by 3.1% for civil matters. Approved applications were down in both criminal and civil, by 2.4% and 1.3%, respectively. Overall, for both criminal and civil legal aid combined, refusals of service for financial reasons were up slightly by 1.1% from 2012-13 to 2013-14 (refusals related to financial eligibility account for 50% of all refusals) and declined by 3.2% due to coverage limitations (refusals due to coverage account for about 26% of all refusals of service). Year-to-year fluctuations are not uncommon, however, and it is always informative to take both a longer view and a comparative perspective.

Over the five-year period between 2009-10 and 2013-14 total legal aid expenditures increased by 6.8% from $762.4 million in 2009-10. In per capita terms this represents an increase from $22.56 per capita for fiscal 2009-10 to $23.10 for fiscal 2013-14. The percentage change in per capita spending is 2.4%, smaller than the percentage change in absolute numbers. In terms of inflation, the Consumer Price Index increased from 114.0 (March, 2009) to 124.8 (March, 2014), a 9.5% increase in the CPI compared with the 6.8% increase in expenditures in current dollars.

Where does Canada stand globally, measured against reasonably comparable legal aid systems in Commonwealth nations? Canada spends far less on legal aid than England and Wales, where spending is equivalent to about $48.52 per capita in Canadian dollars. Canada spends slightly less in per capita terms on legal aid than Australia where per capita spending is about CAD$24.76 and slightly more than New Zealand at about CAD$21.31.

In addition to England and Wales, many European countries spend more per capita on legal aid than Canada. The Canadian per capita figure for 2013-14 equals about €17.46. This compares with €39.37 for England and Wales, €34.29 for Scotland and €21.18 for Ireland, all of which have court systems roughly similar to Canada. The Netherlands, with its exemplary legal aid system, spends €29.11 per capita. Finland spends less per capita at €12.0, as does Belgium at €6.96, Germany at €6.52 and France at €5.40.

Though legal aid spending in Canada has seen significant increases in recent years, the evidence is mixed as to whether we are keeping up with comparable countries. Canada spends slightly less on legal aid per capita than Australia, a country with which Canada has many similarities in terms of geography, socio-legal issues, organization of the legal aid system and the structure of the justice system. Viewing access to justice in its broader social context, spending on legal aid may wisely be considered not only as an investment in a more fair and equitable justice system but in diminished levels of social inequality. Canada has a world class, relatively well-funded legal aid system but we could do more. We all stand to benefit from a more robust investment in legal aid.

By Ab Currie, Ph.D., Senior Research Fellow
Canadian Forum on Civil Justice

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