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Legal Aid Expenditures Over Time in Canada: A Complex Story

Although legal aid funding remains a challenge, and in many jurisdictions is under threat, a global interest in access to justice has gained momentum in recent years. In part, this interest is built around United Nations Sustainable Development Goal (SDG) 16 with the involvement of new and influential players in access to justice such as the Organization for Economic Co-operation and Development (OECD), the World Bank and the Pathfinders for Peaceful, Just and Inclusive Societies. Some countries in which legal aid is a recent development have introduced national legal aid legislation and are making progress toward national systems. On the other hand, in some countries legal aid has a very low political priority and in these countries the funding of legal aid is often left to the large international donor agencies. This revitalized global discussion about legal aid and access to justice prompted this blog’s examination of funding for the Canadian legal aid system over its nearly fifty-year history. There are variations from one jurisdiction to the next within Canada, there have been occasional cuts to legal aid of major proportions and there is still obvious unmet need. However, it fifty years of commitments by federal, provincial and territorial governments have contributed to the goal of access to justice in the form of an important legal aid system.

According to the most recent Department of Justice “Legal Aid in Canada” report, total expenditures on legal aid in Canada amounted to $948.6 million during 2017-18. This includes direct service and administrative expenditures on criminal, civil, and immigration and refugee legal aid, where expenditures on immigration and refugee legal aid totaled $52,769,732 (6% of total expenditures) and spending on civil matters totaled $415,535,535 (44% of total expenditures).[1]

The bar graph shows the growth of total legal aid spending in Canada beginning in 1973-74. That was the first year that payments were made to provinces and territories under the criminal legal aid cost-sharing agreement between the federal government, provinces and territories that was signed in 1971. The federal funding program for criminal legal aid was the catalyst for the national decentralized legal aid system that presently exists in Canada.

This graph tells a mixed story. Prior to 1971 the availability of legal aid was uneven across the country. In most provinces legal aid had been provided on a limited pro bono basis by the provincial Law Societies and by private law firms. Province-wide legal aid had existed in British Columbia since 1952. The Ontario Legal Aid Plan was established in 1967. Non-profit legal aid organizations had been created in Québec City in 1951 and in Montréal in 1956. The federal Department of National Health and Welfare (presently called Health Canada) funded student legal clinics in four provinces; Nova Scotia, Ontario, Saskatchewan and British Columbia during the 1960’s.

In 1980 regulations under the Canada Assistance Plan (CAP) were changed to include civil legal aid as an item of special need, allowing provinces to make claims for contributions to civil legal aid expenditures. CAP was a large funding program administered by the Department of National Health and Welfare through which the federal government supported provincial and territorial programs in health and social services that were areas of federal interest but not clearly in areas of federal responsibility. By the mid-1980’s eight provinces were receiving CAP funding for civil legal aid expenditures. Dedicated federal funding for civil legal aid was discontinued in 1995 when CAP was absorbed into the Canada Health and Social Transfer program, a block transfer program with no reporting requirements for specific areas of expenditure such as legal aid.

 

Part of the story in these graphs shows an upward trajectory of funding and per capita funding, which is a good news story. Of course nothing on this trajectory speaks to the adequacy of overall funding levels for meeting the legal needs of even the most needy in society, not to mention members of the growing middle class, all of whom experience significant personal and collective health and other social costs resulting from unmet legal needs.[2]

Governments at both levels have been the primary sources of funding for legal aid plans. On a national basis, the combined funding by provincial, territorial and federal governments was 93% of all legal aid funding in 1973-74 and approximately 92% in 2017-18. It has long been a principle and an objective of the access to justice movement that governments should accept a primary responsibility for ensuring access to justice. Having said that, given current access to justice challenges,[3] various public and private innovations and solutions are being considered.

In recent years legal aid plans have become more knowledgeable about the importance of socio-legal theory and research for legal aid. The plans have become more policy- and research- oriented, rather than operating as they once did essentially as the largest law firms in the province, although admittedly publicly funded. Legal aid plans in Canada and elsewhere in the world are essential parts of the global revival of the access to justice movement. This inspires confidence that even modest investments will yield significant returns in access to justice if governments and other important funders such as Law Foundations encourage and support adequate funding for, and innovation by legal aid plans in Canada.

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

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[1] See Research and Statistics Division and the Legal Aid Directorate, Ministry of Justice and Attorney General of Canada, Legal Aid in Canada, 2017-18 (Ottawa: Department of Justice, 2019) at 5, online: Justice Canada <https://www.justice.gc.ca/eng/rp-pr/jr/aid-aide/1718/1718.pdf>. Statistics Canada discontinued its legal aid survey reported in the annual series Legal Aid in Canada: Resource and Case Load Data in 2014-15. After a brief break in the availability of national legal aid data, the federal Department of Justice has begun publishing national legal aid data. The Department of Justice Canada collects the data using claim forms for the federal contribution for criminal legal aid. The claim forms were redesigned to be consistent with the questionnaire that had been used by the Canadian Centre for Justice Statistics legal aid survey that was discontinued in 2015. The expenditure data are audited by the legal aid plans using independent audit firms. The Department of Justice is to be commended for making an important contribution to the access to justice movement in Canada by continuing the publication of legal aid data.

[2] See generally Trevor C.W. Farrow et al., Everyday Legal Problems and the Cost of Justice in Canada: Overview Report (Toronto: Canadian Forum on Civil Justice, 2016).

[3] See generally Farrow et al., Everyday Legal Problems and the Cost of Justice in Canada: Overview Report, ibid.; Action Committee on Access to Justice in Civil and Family Matters, Access to Civil & Family Justice: A Roadmap for Change (Ottawa: Action Committee on Access to Justice in Civil and Family Matters, October 2013); Task Force on Justice, Justice for All – The Report of the Task Force on Justice: conference version (New York: Centre on International Cooperation, 2019).

Comments

  1. The costs of Legal Aid can be greatly lowered & their funding much better spent by changing the present judicare systems that use lawyers in private practice to provide the legal services, TO, public defender staff systems, which is what most jurisdictions in the U.S. and Canada use. And in staff systems the defence counsel can be specialized as are the Crown prosecutors now in the larger populated areas of Ontario. Instead, in judicare systems, most criminal & family law cases are not serviced by specialized criminal & family law lawyers.
    As a result, Legal Aid judicare systems are in fact, welfare programs for lawyers in private practice. By now, law societies should have been working for decades at sponsoring the support services that lawyers could use so as to make legal services more affordable; e.g. centralized legal research services such as LAO LAW at Legal Aid Ontario, and centralized routine documentation services, and law office administration support services. And there are other such support services that would enable more middle-income people to afford lawyers.
    But bencher-type law society management by practicing lawyers is incompatible with that kind of innovation. Law society management in Canada is management by part-time amateurs, whose main, dominating worry has to be, being good lawyers, not innovative law society managers.
    The taxpayer should not be made to pay for such very expensive judicare lawyer-welfare programs. Taxpayers should not have to pay for law society incompetence which has preserved Canada’s 19th century law societies into the 21st century.
    And, they make inevitable the replacement of the general practitioner and small unspecialized law office by the commercial producers of legal services–they are: (1) the big ones like LegalZoom and RocketLawyer, which now have millions of customers in the U.S., and have recently started the same process here in Canada; and, (2) the 100’s of small “start-ups.” Both are automating many legal services and thereby eliminating the need for lawyers. And there are agencies helping them develop their AI programs; e.g., the Legal Innovation Zone (LIZ) at Ryerson University in Toronto. Good for them. But don’t expect your law society to do the same for practicing lawyers in Canada.

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