Recent Trends in Legal Aid

The most recent legal aid data are now available in tabular form on Cansim rather than in the familiar publication , Legal Aid in Canada: Resource and Caseload Statistics, which has been discontinued. Keeping track of trend and change in legal aid has never been more important. Legal aid is by far the largest part of the access to justice landscape in Canada. Even with constraints of the current fiscal realities, or perhaps because of them, legal aid systems have the infrastructure, the expertise and the resources to contribute significantly to expanding access to justice in Canada.

The good news in the data is that government support for legal aid has increased steadily over the past five years between 2008-09 and 2012-13, even through the recovery from the “great recession” that began in 2008. This is important because funding from provincial and territorial governments makes up the vast majority of financial support for legal aid in Canada. On a national basis, provincial and territorial funding increased by 28.5% during the five-year period up to 2013-14 and by 11.5% over the most recent year.[1]

Direct service expenditures[2] also increased over the same period, but by less than the increase in funding.[3] Direct service expenditures increased overall by 9.7% during the five-year period covered by the most recent statistics. Direct service expenditures for civil legal aid increased by 11.5%, slightly more than the overall five-year increase. Direct service expenditures declined in only three jurisdictions.

Central administrative expenditures declined by 4.8% between 2008-09 and 1012-13. These expenditures fell in four jurisdictions.

Although expenditures have increased overall, levels of demand and service that can be inferred from the StatCan data have declined. The number of applications for legal aid, a measure of expressed demand[4], declined by 8.0% over the five-year period. Overall declines occurred in six jurisdictions. The oval 8% decline on a national basis includes a 3.5% decline in total applications for criminal legal aid and an 11.2% decline in total applications for civil legal aid. The total number of applications for legal aid in family law matters declined by 7.9%. The decline in applications for criminal legal aid is understandable in view of the overall decline in the crime rate. However, there is no similarly straightforward explanation for the decline in applications for civil legal aid.

Approved applications, measuring the amount of full service provided, also declined by 5.4% during the five-year period, with declines occurring in eight jurisdictions. On a national basis, approved applications for criminal legal aid declined by 2.0% and by 9.6% for civil legal aid. The decline in civil matters includes a 9.9% decline in approved applications for family legal aid and an 8.9% decline for other civil matters.

Duty counsel service declined by 7.0% between 2008-09 and 2012-13. Duty counsel in criminal matters declined by 12.8%. However, duty counsel in civil matters increased by 21.2%. This included an increase of 32.4% in family duty counsel a decline of 49.3% in duty counsel in other civil matters. In family law legal aid plans are attempting to meet the need for legal assistance in family courts through the use of duty counsel. Ontario, British Columbia and Manitoba have had substantial increases in the use of family duty counsel in family since 2008-09.

One pattern that stands out in the data is the large percentage increase over the most recent five years in family duty counsel[5] even as duty counsel services in criminal and non-family civil matters are declining. Family duty counsel increased in 6 of the 9 jurisdictions reporting.[6] The increased use of “expanded” forms of duty counsel is a long-standing trend in Canadian legal aid reaching back to the mid 1990’s. Rather than primarily facilitating the process from the initial appearance to a second one, in this approach duty counsel provides brief discrete services such as interim orders or variations. This approach provides needed help to parties appearing unrepresented in court and improved court efficiency by concluding some urgent and straightforward matters in one appearance.

A broader pattern is the apparent squeeze shown by these data of increasing expenditures and decreasing levels of service. The national data conceals a considerable amount of variation among the thirteen jurisdictions making up the overall picture. Nonetheless, data showing this national picture of increasing funding and decreasing service are a cause for concern. Traditional full service measured by approved applications and duty counsel services do not portray a complete picture of recent developments in service delivery in legal aid. Several jurisdictions have developed telephone law lines and web-based telephone, email and chat assistance allowing users access to enhanced levels of service where required. These do not represent a head-long rush toward automated legal services. Rather, they are designed to extend services to meet the large amount of unmet need among the public while attempting to retain in-court representation for the cases that require it. This reflects a delicate balance as legal aid plans restructure services to expand access to justice to meet the legal needs of the public.[7] Better data, both quantitative and qualitative, are needed to tell the legal aid story well, now, and as it unfolds in the future. Otherwise, there is a risk of falling prey to what Cooper, in an early paper on legal aid policy, called the Cinderella prophesy[8]. According to the prophesy, legal aid costs continue to rise until, eventually, politicians will not continue to support cost increases in an area with a relatively low political priority. After a brief period in the limelight of the ball Cinderella is propelled back down to the cellar. Readers familiar with the history of legal aid in Canada know this can happen in the aftermath of regularly occurring recessions as governments struggle with high levels of public debt or in response to shifts in political dogma. That would be an unfortunate turn of events since legal aid can potentially play a key role in the movement currently unfolding following the Action Committee Colloquium in January 2014 in an expansion of access to justice in Canada.

[1] It is not possible to distinguish between funding for criminal and civil legal aid, except for the federal contribution to legal aid for criminal matters.

[2] This includes payments to the private bar and staff lawyer salaries

[3] Within jurisdictions there is some year over year fluctuation in legal aid expenditures. Therefore, it is best to focus on the five-year trend.

[4] Expressed demand is a form of need representing the number of people who actively request a service. Jonathan Bradshaw, The Concept of Social Need, New Society 6 No. 484 January 1972

[5] This is reported for 9 jurisdictions. Quebec and PEI do not have duty counsel programs. Nunavut and Northwest Territories have a system called “presumed eligibility” in which people appearing in court are presumed to be eligible for legal aid.

[6] Family duty counsel services were down in New Brunswick, Alberta and Yukon.

[7] Access to Civil Justice: A Roadmap for Change, Final Report of the Action Committee on Access to Justice in Civil and Family matters, Ottawa, 2013

[8] J. Cooper, Legal Aid Policy: A Time for Reflection, Environment and Planning: Government and Policy, Vol. 2, 1984 pp. 432.

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