Column

A Billion Here, a Billion There, and a Billion for Legal Aid

The most recent legal aid data from the Department of Justice Canada reports that total expenditures on legal aid reached a landmark in 2022-23 surpassing the $1 billion mark, standing at $1.14 billion.[1] This brings to mind the phrase famously attributed to the American Senator Everett Dirksen, although he later denied having said it but decided he would let it stand anyway because it sounded good; a billion here, a billion there and pretty soon you’re talking about real money. The importance of Dirksen’s remark is that it humourously captures the awesome scale of amounts of money in the billions. It serves as a springboard for contemplating questions about the purpose, the implications and the responsibility of spending large amounts of public money, in this case on legal aid. Legal aid is unquestionably a public good. Crossing the billion dollar mark signals that it is time to discuss the big and basic questions. What is the fundamental purpose of legal aid? What do we want legal aid to be as we move into the future?

Wither legal aid is a question that has been asked many times in Canada and in countries around the world.[2] However, there have been many changes in the discourse on access to justice over recent decades. What is meant by legal problems, by justice, and access to justice has changed with the paradigm shift triggered by the results of the body of legal problems research built upon Hazel Genn’s seminal Paths to Justice research, by the revolution in the discourse on access to justice inspired by United Nations Sustainable Development Goal (SDG) 16[3] and, following on from both of those predecessors, by the people-centered justice movement that is now so effectively championed by the Organization for Economic Cooperation and Development (OECD). Access to justice has expanded to encompass more than the services normally provided by a lawyer and the bar has thus been raised for what is required to achieve access to justice.

This is as much a question for government policy makers as it is for providers of legal aid. Legal aid is a notoriously budget-driven service. A remark made to me years ago by the Executive Director of one of the legal aid plans in Canada, after a presentation about the results of one of the early Canadian legal needs surveys sums it up. I understand what you are doing and I agree with it completely. I would like to do this but I don’t have the mandate and I don’t have the resources.

Leaders in legal aid and access to justice in Canada are more knowledgeable about the global discourse on access to justice than was the case twenty years ago. There are good examples in Canada of progressive projects to extend the reach of legal aid. However, many successful, innovative projects remain limited in scope and are not taken to scale because of limited funding. Many fall victim to the end of discretionary funding and are at best scaled back as legal clinics that are already underfunded struggle to incorporate the new service into the existing delivery model without increased resources.

As we raise the bar for achieving access to justice, legal aid is truly being asked to do more with less, even though funding for legal aid has increased incrementally from year-to-year. Governments in Canada have responded to one of the main objectives of the early access to justice movement, to accept access to justice as a responsibility of government. However, the time for incrementalism is over.

This is not the place to let hubris run amuck by attempting to lay out an agenda for a discussion of the future of legal aid or of access to justice in Canada. Organizations such as the national Action Committee on Access to Justice in Civil and Family Matters and the Canadian Forum on Civil Justice are doing that. This is the place to focus our attention to the landmark expenditure number and consider: if we are going to spend this much, what do we want to accomplish with Canada’s long-standing and evolving legal aid project? It is a project with a long history that began with pre-legal aid pro bono administered by Law Societies, developed with legal aid plans in some provinces in the 1960’s and has become the national decentralized system we have today with federal and provincial/territorial funding. Now, in a rather curious turn of events, Canada also has a substantial, well-organized national pro bono movement that is a significant part of the landscape of access to justice, although not part of the provincial or territorial legal aid plans. Where should we go from here?

Let the $ 1 billion mark be a catalyst rather than something about which we merely take note in a transitory way. It should be a catalyst to ask, what social objectives do we want to accomplish by funding access to justice? Now that we are at a billion and climbing, edging into the realm of “real money” and are equipped with the conceptual framework on legal aid and access that we did not have before, is it not time to ask: what are the fundamental purposes of legal aid, what do we want legal aid to be as we move into the future, how much should be spent to move as close to justice for all as we can and what is the social return on investment in access to justice?

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

____________

[1] Legal Aid in Canada: 2022 – 2023, Department of Justice Canada, Ottawa, 2024, p.3.

[2] For example, to pick two of many Canadian examples; Melina Buckley, The Legal Aid Crisis: Time for Action, Canadian Bar Association, 2000 and Melina Buckley, Moving Forward on Legal Aid: Research on Needs and Innovative Approaches, Canadian Bar Association, 2010

[3] The objective of UN SDG 16 is: “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels”, UN Department of Economic and Social Affairs, “Sustainable Development Goal 16”, online: UN <https://sdgs.un.org/goals/goal16>.

Start the discussion!

Leave a Reply

(Your email address will not be published or distributed)