Thank you for giving me this opportunity to appear before the committee once again.
I am accompanied today by Ms. Elizabeth Hendy, director general, Programs Branch, and by Ms. Hana Hruska, director of the Legal Aid Directorate.
As requested, I will focus my remarks today on the federal contribution program for legal aid.
I will begin by outlining the components of the federal contribution to provinces and territories, explaining the objectives of each component. I will then speak to federal-provincial-territorial co-operation on legal aid and to current legal aid priorities.
With respect to the components that I just mentioned, the federal legal aid program provides contribution funding to the provinces and territories to support the delivery of criminal legal aid services to economically disadvantaged persons at risk of incarceration and to youth facing prosecution under the Youth Criminal Justice Act.
In the territories, this federal allocation also covers civil legal aid. The program also provides funding for immigration and refugee legal aid services in the provinces that provide these services, and also supports court-ordered counsel in federal prosecutions and legal aid in national security cases.
With respect to criminal legal aid, under Canada's Constitution, responsibility for criminal justice is shared between the federal Parliament, under its authority to enact criminal laws and law related to criminal procedure, and the provincial governments, under their authority for the administration of justice. In the territories, the federal Parliament has constitutional responsibility for both civil and criminal law, including criminal prosecutions.
Given these respective constitutional authorities, both levels of government work together to ensure that Canada has an accessible, efficient, and fair system of justice, and that public confidence in the justice system is maintained. Consequently, the federal government has been cost sharing criminal legal aid since the early 1970s. Federal involvement started with the initiation of legal aid pilot projects by the then Department of Health and Welfare in 1972. By 1975, the program consisted of an annual allocation to the provinces and responsibility had moved to the Department of Justice.
The adoption of the Canadian Charter of Rights and Freedoms in 1982 constitutionally entrenched certain rights, including the right to a fair trial, paragraph 11 (d); to life, liberty, and security, section 7; and to equal protection and equal benefit of the law, section 15. The federal contribution to legal aid helps respond to these constitutional rights.
The ongoing federal allocation for adult and youth criminal legal aid services in the provinces and criminal and civil legal aid services in the territories was maintained at $112.4 million annually from 2003 until 2015-16. Budget 2016, however, supplemented this ongoing annual allocation by $88 million over five years, from 2016-17 to 2020-21, and thereafter, $30 million a year in additional ongoing funds starting in 2021-22.
Since 2001, the Legal Aid Program has provided an annual contribution of $11.5 million to six participating provinces, British Columbia, Alberta, Manitoba, Ontario, Quebec, and Newfoundland and Labrador, for the delivery of immigration and refugee legal aid services.
Immigration and refugee legal aid supports the federal Immigration and Refugee Protection Act in ensuring that eligible individuals receive fair and timely process in the determination of their immigration and refugee claims. It assists in addressing the unique circumstances of refugee claimants, such as the need for interpreters or clarification of the overall refugee protection process to individuals.
I also mentioned that we are responsible for court-ordered counsel in federal prosecutions and legal aid in national security cases. The department allocates $1.65 million annually toward orders for court-ordered counsel in federal prosecutions, and $2 million annually toward legal aid in national security cases.
Court-ordered counsel relates to instances where a court orders the Attorney General of Canada to provide counsel for persons accused of serious offences who neither have the resources to pay for a lawyer, nor have been found eligible for criminal legal aid under a provincial or territorial plan. Similarly, funding is provided to support the provision of legal aid in cases of charges under the Anti-terrorism Act, national security cases under the Immigration and Refugee Protection Act, and Extradition Act proceedings where the requesting state alleges that a terrorist act has been committed.
In addition to the department's ongoing funding to the legal aid services that I have just described, the federal government also contributes to civil legal aid through the Canada social transfer, a block transfer directly to the provinces for education and social services, managed by the Department of Finance.
With respect to collaboration among the provinces and territories, our federal legal aid policy is developed collaboratively with the federal-provincial-territorial permanent working group on legal aid. This committee, which includes government and legal aid plan representatives from each jurisdiction, reports to the committee of federal-provincial-territorial deputy ministers responsible for justice and public safety. The permanent working group, among other things, provides advice on legal aid cost-sharing issues, advises on the potential impact of legislative or policy proposals on legal aid services and their clients, and develops approaches to support the provision of accessible, efficient, and high-quality legal aid.
Currently, the permanent working group is developing and negotiating a new distribution formula for federal legal aid monies. It is considering a series of factors relating to legal aid demand and legal aid services delivery cost in order to determine the most equitable allocation of the funds among the provinces and territories. The committee is also engaged in a discussion on performance measurement and innovation in legal aid.
With respect to the latter—that is, performance measurement and innovation—legal aid is no longer simply about providing access to a lawyer for an indigent accused or a party to a court case. Legal aid now takes many forms, from public legal education initiatives, such as online portals that can provide specialized guidance, to specialized outreach services for under-serviced populations.
The federal Department of Justice has played a significant role in encouraging this evolution. In 2014, the department published the legal aid study, which included a research report on innovations in Canadian and international jurisdictions—Mr. Chairman, I would be willing to provide a copy of that study to you—and the report of the deputy minister advisory panel on criminal legal aid, which assessed the need for innovation and performance measurement in legal aid.
The budget investment in 2016 is also designed to support legal aid innovation, as well as service delivery. All levels of government and the legal aid community are seized with ensuring that innovations have the intended impact. Governments and legal aid plans are starting to systematically gather data on outcomes for legal aid clients and for the justice system as a whole.
For example, British Columbia has a pilot project that provides an accused with consistent access to the same duty counsel lawyer. This has reduced the number of court appearances, from eight to two in some cases. Of course, this saves costs for the taxpayer, and it also reduces court delay.
Legal Aid Ontario found that online applications had reduced average application processing times by 62%. The agency also found that the use of a simplified financial eligibility test allowed it to serve more clients at a lower overall cost. Similarly, Legal Aid Manitoba's decision to provide legal aid coverage for most persons who are below the low income cut-off line resulted in an increase of 895 full-coverage certificates issued. It also resulted in a decrease in the administration costs of maintaining the client payment files.
I could provide you with many more examples. However, the important point is that I invite you to invite representatives of legal aid plans to speak to you directly about the innovations that they are experimenting with in order to improve service and drive down costs.
The budget 2016 investment will support the provinces and territories in contributing to modernization efforts to improve the efficiency and effectiveness of the criminal justice system as a whole. It will also support them in addressing gaps in services to vulnerable populations, such as indigenous people and those with mental health issues.
I hope that this provides you with a clear idea of the Department of Justice's role in legal aid.
We would be pleased to take your questions.
Thank you very much, Mr. Chair.
I would like to begin by thanking you, as well as the members of this committee, for the invitation to present today on the most recent legal aid survey data in this country. I am accompanied by Ms. Josée Savoie, who is the chief of the Courts Program at the Canadian Centre for Justice Statistics at Statistics Canada.
I will be presenting an overview of certain key indicators relating to revenues, expenditures, personnel and case load statistics associated with the delivery and administration of legal aid in Canada.
The legal aid survey is an aggregate survey conducted by Statistics Canada and financed by Justice Canada, Legal Aid Directorate. The survey does not collect information on individual cases, and data are collected and reported for pre-defined categories. This means that forms are distributed to the responsible authorities of the various legal aid programs in the country.
This survey, which has been conducted since 1983, is currently being redesigned. The Canadian Centre for Justice Statistics, which I represent today, consulted the partners and persons responsible for legal aid services in Canada on their information needs, and to redefine the concepts and survey definitions to align with new realities concerning current practices that affect legal aid plans in Canada.
Before looking at this graph, it is important to mention that services provided by legal aid plans may include legal representation, advice, referrals, and information services. Generally, all legal aid plans cover both criminal and civil cases, although the extent of coverage varies among the provinces and territories. That is the definition we are using for the sake of this presentation.
In 2014 and 2015, about 718,000 applications for legal aid were submitted to legal aid plans across the country. In that same year, criminal matters accounted for 42% of total applications received. Criminal matters include both adult criminal applications, which constitute the majority of cases, and youth criminal applications as well.
In 2014 and 2015, family matters, which consist of proceedings related to divorce, separation, support, child protection, and other matters of a family law nature, accounted for 23%. Other civil matters, which are civil proceedings such as landlord, tenant, or contract dispute applications, accounted for another 33%.
Less than 2% of applications were for provincial and territorial offences. Over the 10-year period, total legal aid applications declined slightly, that is, by 5%, but the total number of adult criminal applications increased by 5%. Youth criminal applications declined by 30%, and legal aid applications for family matters decreased by 8%. Applications for other civil matters declined by 11%.
Regarding approved legal aid applications, we are referring to full-service applications only. In 2014 and 2015, there were about 467,000 applications approved for legal aid services throughout the country. In that same year, criminal matters accounted for over one-half of all approved applications. Over the 10-year time period, the total approved criminal legal aid applications increased by 6%.
Similar to the trend in total applications, the number of applications approved for full services declined slightly over that same period. The decline was largely driven by a decline in applications approved for family matters and for other civil services.
Over the 10-year period, refused legal aid applications declined by 9%. In 2014 and 2015, 65% of applications were approved for full services. In 2014-15, again, a little over one-half of refused applications were refused due to financial eligibility. About one-quarter were refused due to coverage restrictions, lack of merit, non-compliance, abuse, or other reasons.
The next chart is about legal aid funding sources over time. Legal aid plans receive funding from federal, provincial, or territorial governments, as you know, as well as from client contributions, cost recoveries from legal settlements, and other sources. According to the survey, the federal government, through the Department of Justice legal aid program, reported providing a total of $112 million to the provinces and territories in 2014-15 for the delivery of criminal and civil legal aid, as was stated earlier by my colleague Mr. Piragoff.
Provincial and territorial governments directly fund both criminal and civil legal aid. In 2014-15, provincial and territorial governments reported contributing $666 million to legal aid plans across Canada. Legal aid plans in Canada reported receiving funding of $856 million in that same year. Government sources contributed the vast majority of this amount, which is 92% of the total funding that legal aid plans are receiving in a year. The remaining 8% of funding was received from client contributions, cost recoveries from legal settlements, and contributions from the legal aid profession and other sources. Over the 10-year period, as can be seen on the graph, total funding reported by legal aid plans increased by 41%.
The next slide provides a more detailed view of each of the federal, provincial, and territorial contributions over the time that provinces reported receiving to operate and to provide their legal aid services. The federal government contribution over the 10-year period, data for which stops in 2014-15, increased by $20 million to $112 million, representing an increase of 22% over the 10-year period. During that same period, the provincial and territorial contribution increased steadily from $430 million to $666 million, representing an increase of 55% over that 10-year period.
Let's now look at the trend of legal aid plan expenditures. As noted here, legal aid expenditures consist of direct costs for legal services such as legal representation, legal advice, and the provision of information for both criminal and civil cases. They also include central administrative costs and other expenditures.
In 2014-15 legal aid plans spent just over $850 million to provide legal aid services. Consistent with past results, most legal aid plans spent more on criminal matters than on civil matters. Over that 10-year period total legal aid plan expenditures increased by 38%, which is in line with the revenue trend over that same period.
In summary, we can say that over the last decade the number of legal aid applications for adult criminal matters increased by 5%, while those for other civil matters decreased by 11%. Also, the number of legal aid applications approved for full service declined 1% over the 10-year period.
In total, revenues reported by Canada's legal aid plan increased 41% over the last 10 years, while total expenditures by the plans have increased 38%.
The Canadian centre for justice statistics is currently undertaking a redesign of the survey, as was stated in the introduction to this presentation, for the purpose of responding to emerging needs for more complete and improved information on the delivery of legal aid services in Canada. A comprehensive consultation on the information needs and feasibility is currently under way to ensure the relevance and quality of the data collected by the survey.
The following are some needs that were communicated to us throughout the consultations, just to name a few: socio-demographic information of legal aid clientele, aboriginal identity of those making applications, more details on types of legal aid services provided to clients, online services requested and provided, information on immigration and refugee legal aid, and the ability to measure the effectiveness and efficiency of legal aid services delivery.
Based on our consultations so far, we have identified the areas where we think we can make enhancements to the survey content to collect information that speaks to some of these data needs. We're also looking at breaking down expenditures by the types of services provided, so that's collecting expenditures on full service and expenditures on duty counsel and summary services.
In terms of the personnel resources of the plans, we are looking at possibly collecting more information on the number of paralegals and law students employed, which would improve our knowledge as to the extent of the use of these resources for legal aid service delivery.
We anticipate being able to collect some socio-demographic information, including gender, as well as information on self-identified aboriginal people. These would be high-level counts only, for legal aid applications as a group. We're also planning on adding categories for child protection and immigration and refugee legal aid, as well as collecting information on different application methods, for example, online, by telephone, or in person.
That concludes my presentation. Thank you very much.
With respect to criminal legal aid, as you've indicated, the statistics indicate that most accused persons are male as opposed to female. The Supreme Court has held that there is a constitutional right of an unrepresented indigent person to a fair trial. Their fair trial rights may be infringed if the charge is serious, involving complex legal issues, and there's a likelihood of incarceration upon conviction. Those rights are founded on sections 7 and11, as I indicated earlier.
Clearly, in the criminal law context, there are constitutional rights that the state has to serve and respect. Irrespective of who the accused is, whatever gender, whatever nationality, whatever colour, there's a constitutional right that has to be addressed.
On the civil side, however, most civil disputes are disputes between two individual private parties, and the state is not involved. The state may become involved for policy reasons in order to assist individuals. For example, in family law, as you look at the chart, and I can't remember which slide it was, but for civil legal aid, a significant proportion of civil legal aid at the provincial level goes to family law. That's a policy decision by governments to say that even though family law disputes are between two private litigants, there are a number of public policy interests involved, particularly children. The state has a public parens patriae interest in the welfare of children. Therefore, they will provide more civil legal aid funding to family law matters, as opposed to other civil disputes.
In those situations, clearly in civil law, family law, there's generally going to be, in most cases, gender equilibrium, although not necessarily, given modern Canadian families do not have to be heterosexual anymore. Some of the gender imbalance is because of who the litigants are and the composition of the litigants, and also who is appearing before the courts.