Legal Aid in Canada 2021-22

Introduction

Background

In Canada, responsibility for criminal justice is shared between the federal government (criminal law making, and criminal procedure) and the provincial and territorial governments (for the administration of the justice system; outside of criminal prosecutions in the territories which are a federal responsibility). Given these authorities under the Constitution, both levels of government have a mutual interest in working together to ensure an effective, efficient, fair, and accessible system of justice.

Legal aid is one component of the legal system and it is essential to fulfilling the government’s obligations under the Canadian Charter of Rights and Freedoms including the right to a fair trial (section 11(d)); to life, liberty and security (section 7) and to equal protection and equal benefit of the law (section 15). Legal aid helps to ensure effective and fair representation in the criminal justice system and it is necessary to address the imbalance of power by ensuring that economically disadvantaged criminally accused have equal access to justice in our society.

Legal Aid Program

There are 13 recognized legal aid plans in Canada, the organizations responsible for providing legal aid services to those who cannot afford a lawyer. The federal government supports legal aid services in the provinces and territories through two sources. The Department of Justice Canada’s (Justice Canada) Legal Aid Program^Footnote1 provides funding to all provinces for criminal legal aid through contribution agreements. There are also agreements to support immigration and refugee (I&R) legal aid in the six provinces (Alberta, British Columbia, Manitoba, Newfoundland and Labrador, Ontario, and Quebec) that provide services in this area, and in Nova Scotia, which began offering I&R legal aid services in 2021-22. The federal government supports criminal and civil legal aid in the territories through consolidated Access to Justice Services Agreements.^Footnote2

Federal support for civil legal aid in the provinces is covered under the Canada Social Transfer (CST), which is a block transfer payment provided to each province and territory for health care, postsecondary education, social assistance and social services. Civil legal aid is an eligible expenditure under the CST.^Footnote3

While policy development related to criminal legal aid is a shared federal/provincial/territorial responsibility, each province and territory is responsible for the delivery of legal aid services based on their own policies and procedures. This report provides national level statistics^Footnote4 on revenues, expenditures, personnel, and caseloads from legal aid plans across Canada. Justice Canada has been producing the Legal Aid in Canada report since 2016-17, and this is the sixth annual edition. This year’s report includes data from the 2021-22 fiscal year, as well as trend data from the past five years of legal aid annual reports.

The 2021-22 fiscal year saw a reduction and gradual elimination of many of the pandemic public health measures. In the early days of the pandemic these measures had a profound impact on the criminal and civil justice systems, resulting in limited public access to courts and/or the shift to virtual hearings, and the triaging of the most serious matters. While the data shows that the legal aid system is showing signs of recovery, these disruptions remain evident.

The data collection for Legal Aid in Canada is done at a national level; however, from year-to-year some limitations on data coverage exist and some legal aid plans may be unable to report all or some data elements. Due to these limitations, Canada-level totals may not include all provinces and territories and are noted in each of the respective tables’ footnotes.

Revenues and expenditures

Revenues are all monies received by the legal aid plan for the provision of legal aid services, which comes from three main sources: government contribution funding, client contributions and cost recoveries, and contributions from the legal profession. Federal government contributions are the federal contribution funding amounts for criminal and where applicable, I&R legal aid. Federal contribution funding flows directly to the consolidated revenue fund of each province or territory, and is subsequently allocated by the provinces or territories to their respective legal aid plans. Provincial/territorial contributions are the funding amounts received for legal aid services from the legal aid plan’s respective government. Client contributions are all monies received from the client for legal assistance. Cost recoveries refer to the party costs ordered or agreed to be recovered in the case (this includes monies recovered from a judgement, award or settlement). Contributions of the legal profession and interest earned from lawyers’ trust accounts are all monies received from the law profession (e.g., provincial/territorial law foundation funding, levies) as well as other revenues that have not already been accounted for in the other categories.

Expenditures are payments made by legal aid plans to private law firms for the delivery of legal services, and the costs of legal services delivered by legal aid plan staff. These expenditures include monies spent on the provision of legal advice and representation services to clients, including special target groups. All legal aid office and contracted community clinic expenditures are a combination of direct and indirect service delivery costs. Direct service delivery costs are expenses related to providing services directly to clients, while indirect service delivery costs are expenses not directly related to providing legal aid services to clients, but are reasonably attributable to the delivery of legal aid.

Provinces and territories contributed just over seventy percent of legal aid revenues in 2021-22

Legal aid plans reported receiving total funding of over $947 million in 2021-22. Federal and provincial/territorial government sources contributed the majority of this amount—92% of the total, which remained constant from 2020-21. The remaining funding was received from client contributions, cost recoveries from legal settlements, and contributions from the legal profession and other sources (Table 1).

Provincial and territorial (P/T) governments directly fund legal aid. In 2021-22, P/T governments contributed more than $671 million to legal aid plans across Canada, which amounts to 71% of total legal aid revenues. This amount decreased 3% from last year (using a constant dollar comparison).

In 2021-22, Justice Canada contributed over $196 million to the provinces and territories for the delivery of criminal legal aid, civil legal aid (in the territories only), and I&R legal aid (where applicable). This amounts to 21% of total legal aid revenues (Table 1) which is up 1% from the previous year. Ontario and Quebec are the largest legal aid plans, comprising 46% and 19% of all legal aid plan revenues respectively, or 65% for the two plans combined (Table 1).

Figure 1 shows the breakdown between legal aid revenue sources over the past five years, using 2022 constant dollars, which are used to account for the impact of inflation over time. Between 2017-18 and 2019-20 there was a gradual increase in the proportion of federal contributions to legal aid revenues, in parallel to a reduction in P/T contributions. This trend levelled off in 2020-21 and the proportion of federal versus P/T contributions has remained more consistent the past two years. In 2021-22 revenues started to increase from the low during the pandemic, but are still down about 2% from the previous year.

A majority of jurisdictions spend more on criminal matters than civil matters

Table 2a shows 2021-22 legal aid plan expenditures, broken down by type of expenditure. Overall, 49% of legal aid expenditures were related to criminal matters, 5% were related to I&R matters, and 45% were related to all other civil matters. Figure 2 presents the breakdown of expenditures by type of matter over the past five years using constant 2022 dollars.

Expenditures have remained consistent year over year, with the exception of 2020-21, when expenditures for all types of matters decreased, likely largely due to pandemic restrictions. In 2021-22 expenditures began to increase from the pandemic lows, with total expenditures up 5% from the previous year, criminal expenditures up 7%, I&R up 15%, and civil up 1%. Despite these increases in 2021-22, the data shows a slow recovery from the pandemic with expenditures not yet at their pre-pandemic levels.

Ontario and Quebec had the highest legal aid expenditures in the country in 2021-22, with 47% of all expenditures as a proportion of the national total from Ontario and 20% from Quebec.

Looking at legal aid expenditures by type of matter, most jurisdictions spend more on criminal matters, with only three spending more on civil matters (Quebec at 61%, Prince Edward Island 62%, and Ontario 59%). At the national level, however, half of legal aid expenditures are related to criminal matters. This is because Quebec and Ontario spend more overall thus contributing more to the average. The jurisdictions with the highest proportion of total legal aid expenditures on criminal matters (of all legal aid expenditures for that jurisdiction) were Saskatchewan (80%), Alberta (74%), and Manitoba (74%).

Table 2b breaks out the total administrative costs for legal aid plans in 2021-22. These expenses are also reflected under “Legal Services Expenditures” in table 2a, and they amounted to over $162 million dollars.

Legal aid applications

A legal aid application is a request for legal aid assistance. An application can result in either a client receiving summary or full legal representation, or the denial of legal aid service. Summary services include the provision of legal advice, information, or any other type of minimal legal service granted to an individual, while full legal representation constitutes more extensive legal assistance. The total number of applications reported for the fiscal year includes all applications filed during that time, irrespective of when the application was approved or rejected.

In this report, an application for legal aid is counted as approved only for those clients that receive full legal representation. Also, the total number of applications reflects the number of individual requests for assistance, rather than the total number of persons seeking assistance. Once an application is approved for full legal representation by the legal aid plan, the certificate may then be brought to a private bar lawyer who bills the legal aid plan once the service is completed, or the service may be provided by a legal aid staff lawyer.

Over 493,000 legal aid applications were received in 2021-22

The number of applications for legal aid reflects the number of individual requests for assistance, rather than the total number of persons seeking assistance. This means that a single individual could file multiple applications. Figure 3 shows the trends in legal aid applications received and approved over the past five years. There was a gradual decline in the number of applications received and a corresponding decline in approvals, which hit a pandemic low in 2020-21 where both the number of applications received and approved declined by 18% from the previous year. In 2021-22 the numbers began to increase, with the number of received applications up by 8% and the number of approved applications up by 4% from the previous year. Despite these increases, applications received and approved are down 18% and 19% respectively compared to 2017-18.

Of the 493,372 applications for summary or full legal representation received in 2021-22, over half (52%) were for criminal matters, while 46% were for civil matters (including I&R) (Figure 4). Of the 257,204 applications for criminal legal aid, 94% were from adults and 6% were from youth. The highest proportion of civil matter applications was for family matters (43%), followed by child protection (27%), non-family matters (22%), and I&R (8%). (Figure 5).

Quebec received the most applications at 211,010, which accounted for 43% of all applications received nationally in 2021-22. Ontario and Alberta were the next two provinces that received the most applications (23% and 8% respectively). The breakdown between criminal and civil applications within each province/territory shows that Prince Edward Island (73%), Alberta (71%) and Manitoba (69%) had the highest proportion of criminal applications compared to civil. Quebec (57%) and New Brunswick (47%) had the highest proportion of civil applications among the jurisdictions (Table 3).

Application approvals

Eight in ten legal aid applications received were approved for full legal representation

An application for legal aid may be approved for either summary or full legal representation. Summary services include the provision of legal advice, information, or any other type of minimal legal service granted to an individual during a formal interview. Full legal representation represents more extensive legal assistance including representation in court. In 2021-22, out of the 493,372 legal aid applications received (Table 3), 383,776 applications, or 78%, were approved for full representation. Overall, the approval rate of legal aid applications has remained relatively stable at around 80% since 2017-18, however this varies by application type.

Figure 6 shows the variation in approval rates by application type over the past five years. Immigration and refugee matters have the highest approval rates, and have varied the most over time. The approval rate for I&R applications went from a high of 91% in 2018-19, down to 87% in 2021-22. The approval rates for civil applications are the lowest, with about three quarters of applications approved, a rate that has been consistent over the past five years.

Of the applications approved for full representation in 2021-22, more than half (55%) were for criminal legal aid, 43% were for civil legal aid (including I&R), and the remainder for provincial/territorial offences. Of the criminal applications, the majority (93%) were for adult matters, and 7% were for youth matters. For civil matters, more than one third (36%) were for family matters, 32% were for child protection matters, and 22% were for non-family related matters. I&R matters made up 10% of civil applications in the provinces that provide I&R legal aid services (Table 4).

When looking at the proportion of approved applications by province/territory and type of matter,  Manitoba had the highest proportion of approved applications that were criminal as opposed to civil (83% of approved applications were for criminal matters and 17% were for civil). New Brunswick and Ontario both had a more even split between criminal and civil applications, with identical proportions of criminal (58%) and civil (42%) legal aid applications approved for full legal representation (Table 4).

There are around 500 legal clinics across the country with differing levels of services offered.^Footnote5 Ontario has the most developed system of community legal clinics which are funded by Legal Aid Ontario and operated independently.^Footnote6 In Ontario, there were 923 adult and 114 youth applications managed by law clinics, which made up less than 1% of total approved criminal applications in the province in 2021-22.

Figures 7 to 9 show the approval rates of applications broken down by type of matter. Figure 7 shows that criminal youth applications have the highest rate of approval, with 97% of received applications approved. Youth applications have a high approval rate as a result of the eligibility criteria set out in the Canada-Province contribution agreements:

7. The Province shall provide criminal legal aid for a young person where, in the opinion of the provincial legal aid service provider, the interests of the young person and a person legally required to contribute to the cost of the young person's legal aid appear to conflict, and the young person is otherwise unable to retain counsel at his or her own expense.

12(1)(e) (1). The Province shall authorize the provision of criminal legal aid to eligible persons so that priority is given to: (e) Any proceedings involving a young person in respect of a serious offence contrary to an Act or Regulation of Parliament or under the Extradition Act, including an appeal by the Crown.

Criminal adult applications are approved at a rate just above the average approval rate of all applications, at 82% (Figure 7).

For civil legal aid applications (Figure 8), child protection matters had the highest rate of approval (88%) followed by civil-non family applications (71%) and family applications (61%).

Legal aid applications for I&R matters had an approval rate higher than the overall average, at 87%, while P/T offence applications were approved at a rate just under the average, at 76% (Figure 9).

Application refusals

Financial ineligibility was the most common reason for application refusal

Refused applications are all requests for legal aid that have been denied legal services. This includes applications for which no services have been approved, as well as those applications denied for full legal representation that subsequently received summary services. In 2021-22, of the 94,162 applications (both criminal and civil) where a reason for refusal was reported, 62% were refused for financial ineligibility. The next most common reasons for refusal were other reasons for refusal and coverage restrictions (22% and 13% respectively) (Table 5).

When looking at the breakdown of reasons for refusal by province/territory, Quebec and Saskatchewan had the highest proportions of applications refused for financial ineligibility (85% and 74%). New Brunswick (34%) and Ontario (31%) had the highest proportions of applications refused for coverage restrictions (Table 5).

Figure 10 shows the trends in legal aid application reasons for refusal over the past five years. The proportion of applications refused for financial ineligibility has been increasing over time, and is up 4% from last year and 34% since 2017-18. The proportion of applications refused for other reasons increased over time between 2017-18 and 2020-21, before decreasing 7% in 2021-22. Coverage restriction refusals have decreased over time, and are down 26% since 2017-18.

Over half of refused criminal legal aid applications were refused for financial ineligibility

Looking at criminal legal aid applications, financial ineligibility was the most common reason for refusal (61%), followed by other reasons (25%) and coverage restrictions at 12% (Table 6). By province/territory, Prince Edward Island had the highest proportion of financial ineligibility refusals (100%), Ontario had the highest proportion of coverage restriction refusals (40%), lack of merit refusals were highest in Nova Scotia (16%), and under 6% across all other jurisdictions. Nova Scotia also had the highest rate of refusal of all jurisdictions for non-compliance or abuse, at 18%, while all other jurisidctions had a rate of 1% or lower.

Table 7 shows refused civil and I&R applications by reasons for refusal. The proportions for civil and I&R applications were consistent with criminal applications, with 62% of all applications refused for financial ineligibility, and 13% falling under coverage restrictions. Quebec and Prince Edward Island had the highest proportions of other civil applications refused for financial ineligibility (81% and 79%). New Brunswick had the highest proportion of other civil applications refused for coverage restrictions (30%), and Newfoundland and Labrador and Manitoba had the highest proportion of other civil applications refused for lack of merit (24% and 19%). For I&R applications, Quebec had the highest proportion refused for financial ineligibility (90%), British Columbia had the highest proportion refused for coverage restrictions (21%), and Newfoundland and Labrador had the highest proportion of lack of merit refusals (42%) (Table 7).

Application outcomes among Indigenous clients

More than eight in ten applications for full legal representation from self-identified Indigenous clients were approved

Figure 11 shows the number and proportions of applications received and approved for full legal representation from individuals who self-identified as Indigenous in the provinces and territories that collect this data. Of the 52,833 applications received from individuals who self-identified as Indigenous for all matters in 2021-22, 84% were approved. The proportion of applications approved for criminal matters was almost 10% higher than for civil matters; 87% of received criminal applications were approved compared to 78% of received civil applications. The approval rate among self-identified Indigenous applicants for criminal matters is 5% higher than the general approval rate for criminal applications (87% versus 82%),similarly for civil matters the approval rate for Indigenous clients was higher than the general rate (78% versus 73%).

By jurisdiction, Nova Scotia and Prince Edward Island and Ontario had the highest proportions of criminal applications approved (96%, 95%, and 95%), while Newfoundland and Labrador had the lowest (67%). For civil applications, Ontario, and New Brunswick had the highest proportions of applications approved (95%, 87%), while British Columbia had the lowest (59%) (Table 8).

Duty counsel services

Duty counsel is legal assistance rendered without charge to unrepresented individuals who, in many cases, are about to make an appearance in court. Duty counsel services refer to services provided by a lawyer at a location other than a legal aid office, generally at court or a place of detention. Most often, the services provided are brief, and pertain to provision of summary services, docket court appearances, or representation at a first appearance or plea court.

As a result of the Supreme Court of Canada decision in R. v. Brydges, all provinces and territories offer temporary access to duty counsel through telephone in the immediate period after an accused has been arrested or detained. These services are provided to accused persons without application, and they are free of charge.

For criminal matters, duty counsel services (either Brydges telephone services or in person court services) are available in all provinces and territories. Civil duty counsel services are available in six provinces: Newfoundland and Labrador, Nova Scotia (Nova Scotia offers family duty counsel, which is referred to as summary advice counsel), New Brunswick, Ontario, Manitoba (for child protection matters), and British Columbia. Immigration and refugee duty counsel services are available in Newfoundland and Labrador, Ontario, and British Columbia.

A majority of provinces and territories do not apply eligibility criteria for duty counsel services. Of those that do, New Brunswick applies scope of service eligibility criteria, but not financial eligibility criteria,^Footnote7 while Ontario applies eligibility criteria which are outlined on their website.^Footnote8 British Columbia applies eligibility criteria only to family duty counsel services.^Footnote9

Over 928 thousand duty counsel assists were provided in 2021-22

There were 928,627 duty counsel assists provided to legal aid clients in 2021-22. Of these, 90% were for criminal matters, and 10% were for civil matters (including I&R). Figure 12 shows that the number of duty counsel assists was relatively stable between 2017-18 and 2019-20, when the number of duty counsel assists dropped by 38% in 2020-21 in the wake of the pandemic. In 2021-22 the data shows that duty counsel services have begun to recover, up 25% since last year, however they are still down 24% compared to 2017-18. Civil duty counsel services experienced the largest drop, down 29% from the previous year, while criminal duty counsel assists were down 25% from 2020-21 to 2021-22. These decreases suggest the disruptions to the criminal and civil justice systems as a result of the COVID-19 pandemic were continuing to have an impact in 2021-22.^Footnote10

For jurisdictions that provided data on both criminal and civil duty counsel services, Quebec and Northwest Territories had the highest proportions of criminal duty counsel assists provided in comparison to civil, both with 100% of duty counsel assists for criminal matters. British Columbia had the lowest proportion of criminal matter assists, with 75% criminal assists and 25% civil (Table 9).

Over 104 million dollars spent on duty counsel services in 2021-22

Nationally, there were total expenditures of $104,338,058 for duty counsel services in 2021-22 (using constant 2022 dollars), this was an increase of 12% from the previous year, and 18% since 2017-18 (Figure 12). Using unadjusted 2021-22 data, criminal duty counsel services represented the highest proportion of duty counsel expenditures, at $81,802,679, or 78% of total expenditures in 2021-22. Civil duty counsel services made up 21% of expenditures. Within criminal duty counsel services, 97% of expenditures went towards adult matters (Table 10).

Appeals

Just over three quarters of applications for legal aid services to deal with an appeal were approved

Out of the 4,677 applications in 2021-22 for legal aid services for an appeal case for any type of matter, 76% were approved for legal aid services. Proportionally, there are more appeal applications for civil matters compared to criminal matters (61% for civil, 39% for criminal) which differs from regular legal aid files which are dominated by criminal matters. For criminal matters, 70% of appeal applications were approved, and for civil matters, almost 8 in 10 (79%) were approved (Figure 13). These proportions have experienced minor fluctuations over the past five years.

Aside from Saskatchewan, where all appeal applications were approved in 2021-22, Nova Scotia and Ontario had the highest proportions of appeal cases approved for legal aid services (90% and 89%), while Prince Edward Island, New Brunswick, and British Columbia had the lowest proportions of cases approved (25%, 52%, and 54%). For criminal cases, Saskatchewan and Nova Scotia had the highest proportion of criminal appeal applications approved (100%, and 93%), and British Columbia had the lowest proportion of approved criminal applications at 35%. For civil cases, Prince Edward Island and Saskatchewan both had 100% of applications approved, and Manitoba had the lowest at 36% (Table 11).

Interprovincial Reciprocity Agreement

Fewer than 500 civil cases were managed under the Interprovincial Reciprocity Agreement in 2021-22

The Interprovincial Reciprocity Agreement refers to an agreement among legal aid plans in Canada to handle non-resident civil cases. Under the terms of the 2018 agreement, it is no longer a requirement for an applicant to apply in their home province, applications may be made directly to the province where service is required.

Outgoing cases refers to the number of applications for civil legal aid approved by the legal aid plan of a province or territory that are forwarded to other provincial/territorial legal aid plans for service. Incoming cases refers to the number of applications approved for civil legal aid by other provincial/territorial legal aid plans which are forwarded to the legal aid plan for service and for which service has been provided.

Data from 2021-22 indicate that provinces/territories handled a total of 313 incoming cases and 158 outgoing cases (Table 12). Ontario had the highest number of cases incoming from another province, with 173 cases while Quebec had the highest number of outgoing cases at 70.

Legal aid clients

Legal aid plans provide services to clients to help them with their legal problems in the areas of criminal, family, child protection, civil non-family, and immigration and refugee law. Data in this section outlines the gender and age of legal aid clients who received summary and full legal representation in 2021-22 by type of matter. Data on immigration and refugee matters is excluded from this section because many legal aid plans only collect data for the principal claimant (i.e., head of family), so gender–based data may not reflect the total amount of individuals being served.

Most legal aid clients were male, and accessed criminal legal aid services

In 2021-22, of the over 360,000 legal aid clients, 61% percent were male, while 39% were female. The most common age category of legal aid clients was 18-34 (41%) (Table 13, Figure 14). These proportions have remained consistent over the past five years. Figure 14 shows the gender and age breakdown of legal aid clients for all types of matters combined, with males aged 18-34 making up the highest proportion of clients (25%), followed by males aged 35-49 (20%) and females aged 18-34 (17%).

Figure 15 shows the age and gender breakdown of criminal legal aid clients. For criminal matters young males made up a significant proportion, with males aged 18-34 (38%) the largest group followed by males 35-49 (26%).

Figure 16 shows the gender and age breakdown of civil legal aid clients. For civil matters, females made up the highest proportion of clients, with those aged 18-34 (24%) and 35-49 (21%) making up almost of half of these clients.

Indigenous legal aid clients

More than half of Indigenous legal aid clients were males accessing criminal legal aid services

Legal aid plans from Newfoundland and Labrador, New Brunswick, Nova Scotia, Ontario, Manitoba, Saskatchewan, British Columbia, and Northwest Territories provided data on self-identified Indigenous legal aid clients. Out of the 43,507 Indigenous clients that self-identified in these provinces and territories in 2021-22, 78% accessed criminal legal aid (adult and youth), while 22% accessed civil legal aid.

Overall, just under two thirds (64%) of Indigenous legal aid clients were men. Men represented 77% of Indigenous adult and youth criminal legal aid clients, but only 32% of civil legal aid clients (Figure 17).

Cases and expenditures

Assault was the most frequent offence category, with the highest proportion of in-year expenditures for adult criminal legal aid

Table 15 provides a breakdown of criminal legal aid cases that were approved for full legal representation, and incurred expenditures in 2021-22, in addition to cases that were ongoing from previous years and incurred expenditures in 2021-22. These are broken down by general offence categories, as well as the proportion of in-year expenditures dedicated to each offence category. Note that the offence categories do not refer to specific offences under the Criminal Code. Rather, they represent groupings of similar offence types.

Assault made up the highest proportion of case volume at 23% (16% of in-year expenditures), while the category other offences made up the highest proportion of in-year expenditures at 20% of in-year expenditures and 19% of case volume in 2021-22. The next most common offence category was theft, break and enter, possession of stolen property (18% of case volume and 12% of in-year expenditures) (Figure 18).

Figure 18 shows that there were a few categories of offences that made up a very small proportion of case volumes, but a comparatively higher proportion of in-year expenditures. These included homicide, which accounted for 1% of cases, but 14% of in-year expenditures and sexual assault, which made up 5% of case volume and 8% of expenditures. The reverse is true for breach of probation offences, which made up a high proportion of case volume (8%), but a relatively low proportion of expenditures (3%).

Assault was the most frequent offence category, with the highest proportion of in-year expenditures for youth criminal legal aid

Table 16 provides a breakdown of current youth legal aid cases and incurred expenditures in 2021-22, in addition to cases that were ongoing and incurring expenditures but might have been approved the previous fiscal year or earlier. These are broken down by general offence categories, as well as the proportion of in-year expenditures dedicated to each offence category. Note that the offence categories do not refer to specific offences under the Criminal Code. Rather, they represent groupings of similar offence types.

Figure 19 shows that the proportion of cases is largely in line with expenditures for youth offences. other offences made up the highest proportion of case volume (31%) and the highest proportion of in-year expenditures (25%), while assault made up 28% of cases, and 21% of in-year expenditures in 2021-22. Theft, break and enter, possession of stolen property and sexual assault were the next most common offence categories with 11% of case volumes, however the expenditures reflect the differing levels of complexities of these cases with theft, break and enter, possession of stolen property expenditures at 10% while sexual assault expenditures were at 14% of in-year expenditures.

The main outlier was homicide cases, which made up a very small proportion of case volume, but a comparatively higher proportion of in-year expenditures, accounting for 1% of cases but 7% of in-year expenditures.

Immigration and refugee legal aid

Refugee claimants have the right, under the Immigration and Refugee Protection Act (IRPA), to be represented at I&R proceedings. Through the Legal Aid Program, the federal government contributes annual funding to the seven provinces that provide I&R legal aid services (Alberta, British Columbia, Manitoba, Newfoundland and Labrador, Nova Scotia, Ontario, and Quebec). I&R matters are proceedings of persons (individuals, or principal applicants and family) involved in the immigration and refugee determination system under the provisions of IRPA. I&R legal aid covers the provision of legal advice, assistance and representation for immigration or refugee proceedings before the Immigration and Refugee Board of Canada, the Federal Court, or Immigration, Refugees and Citizenship Canada officials on post-determination actions. 

Over 24,000 I&R legal aid certificates were issued in 2021-22

Table 17 shows the volume of I&R legal aid certificates as well as expenditures for I&R legal aid for 2021-22, including certificates and expenditures carried over from previous fiscal years for cases that are ongoing. In 2021-22, there were 24,040 legal aid certificates issued, with 3,751^Footnote11 certificates carried over from previous fiscal years in the provinces that reported this data, for a total of 27,791 certificates. A majority of (current and previous fiscal years) certificates were handled by private bar lawyers (66%), while 28% were handled in specialized clinics, and 6% were handled by staff lawyers. Over two thirds of expenditures from the current (2021-22) and previous fiscal years related to I&R legal aid were associated with private bar certificates (67%).

Newfoundland and Labrador and Alberta had the highest proportion of staff lawyers working on I&R matters (100% and 77%) in 2021-22, while in British Columbia 100% of I&R legal aid certificates were handled by private bar lawyers. Nova Scotia, Ontario, and Quebec are the only jurisdictions with cases handled through specialized clinics with 91% of previous and current fiscal certificates in Nova Scotia, 34% in Ontario, and 17% in Quebec) (Table 17).

Figure 20 shows the trends in I&R legal aid caseload volumes and expenditures over the past five years. The number of previous and current fiscal year certificates reached a high in 2018-19 at 46,574 before dropping significantly in 2020-21 by 43% from the previous year. Expenditures were at a high in 2017-18, levelling off in 2018-19 and 2019-20, and then dropping by 23% from 2019-20 to 2020-21 largely due to the measures put in place to respond to the COVID-19 pandemic such as border closures and hearing suspensions. In 2021-22 both case volumes and expenditures began to return to pre-pandemic levels. The number of previous and current fiscal year certificates were up 27% from 2020-21, and expenditures were up 20% during the same time period using a constant dollar comparison. However, over the five-year period from 2017-18 to 2021-22, legal aid certificates were down by 34%, and expdenditures were down by 26% using a constant dollar comparison.

Legal aid plan personnel

Legal aid plans in Canada currently operate under one of three service delivery models: the staff lawyer model, the judicare model and the mixed model. In the staff lawyer model, lawyers providing legal aid services are employed directly by legal aid plans. In the judicare model, legal services are provided by lawyers in private practice who are paid by the legal aid plan based on tariff rates. The mixed model uses a combination of staff and private lawyers to provide legal aid services. The following section of the report provides information on the service delivery models at legal aid plans by detailing the type of staff working in legal aid, and cases they work on. This includes information on both lawyers and non-lawyers.

Legal aid services are delivered primarily by private bar lawyers

Table 18 provides an overview of the proportion of staff lawyers versus private bar lawyers delivering legal aid services across the country. While this data provides a picture of the numbers of lawyers providing services, these figures do not reflect the differences between the legal aid case loads of private bar versus staff lawyers. In some cases, a legal aid plan may have a higher proportion of private bar lawyers, but the staff lawyers at that plan may be managing a higher proportion of cases. Over the past five years, the proportion of staff lawyers versus private bar lawyers delivering legal aid services has remained consistent.

In 2021-22, 87% of the 10,429 lawyers providing legal aid services in Canada were private bar lawyers (Table 18). Staff lawyers made up 12% of lawyers providing direct legal aid services to clients, and other lawyers (such as Executive Directors) made up 1%. Among private bar lawyers, 38% provided both criminal and civil law services. There were more private bar lawyers providing only criminal law legal aid services as compared to only civil (30% and 24%), while 8% of private bar lawyers provided legal aid services for I&R matters. Of the staff lawyers and other lawyers, the highest proportion provided both criminal and civil law services (72%), while 16% provided only criminal services and 10% provided only civil law services. The remaining 2% provided services for I&R matters (Figure 21).

Overall, 35% of the 10,429 lawyers providing legal aid services in Canada were in Ontario, and 22% were in Quebec and 20% were in Alberta. When looking at the breakdown between private and staff lawyers within each province/territory, British Columbia and Alberta had the highest proportions of private bar lawyers (96% and 95%), while Newfoundland and Labrador had the highest proportions of staff lawyers (79%) (Table 18).

Non-lawyers made up 16% of legal aid plan personnel

Legal aid plans employ a variety of non-lawyer personnel to support the delivery of legal aid services to clients. Over the past five years the proportions of legal aid plan personnel have remained relatively stable. In 2021-22 lawyers made up 84% of legal aid plan personnel and non-lawyers made up the other 16% (Table 19). Figure 22 shows that 87% of the lawyers providing legal aid services were private bar and 13% were staff lawyers. Of the 1,998 non-lawyers working for legal aid plans, intake workers/support staff (79%) were most common, followed by paralegals/legal assistants (14%), and articling students/other (i.e., managers) (7%) made up the remaining non-lawyer personnel (Figure 22).

Specialized courts

Specialized courts are used in the majority of provinces and territories and provide invaluable services to legal aid clients

Specialized or problem-solving courts focus on a particular type of offence or offender. They typically involve an interdisciplinary team that is focused on addressing the underlying causes of offending. The following section provides information on the specialized courts operating in Canada. Figure 23 provides an overview of the service delivery models available at specialized courts across Canada.

Mental Health/Wellness/Community Courts

Mental health courts are designed to assist accused persons who have mental health issues. This typically involves specially trained personnel and processes that take into consideration the difficulties that a person with mental health issues may encounter in the criminal justice process.

Wellness/community courts offer integrated supports and services designed to address the problems associated with repeat offenders struggling to reintegrate into society.

There are 11 jurisdictions that operate mental health/wellness/community courts. These jurisdictions are: Newfoundland and Labrador, Nova Scotia, New Brunswick, Quebec, Ontario, Manitoba, Saskatchewan, Alberta, British Columbia, Northwest Territories, and Yukon.

Drug Treatment Courts

Drug treatment courts aim to reduce crime committed as a result of drug dependency through court-monitored treatment and community service support for non-violent offenders with drug addictions. Drug treatment courts currently operate in Newfoundland and Labrador, Nova Scotia, Quebec, Ontario, Manitoba, Saskatchewan, Alberta, British Columbia and Yukon.

First Nations/Gladue Courts

First Nations/Gladue courts offer restorative justice and traditional approaches for sentencing Indigenous offenders. These courts currently operate in Nova Scotia, New Brunswick, Quebec, Ontario, Manitoba, Saskatchewan, Alberta, and British Columbia.

Youth Courts

Youth between the ages of 12 and 17 who are accused of a crime have their matters heard in youth court, which is a separate court division. Youth courts currently operate in every province and territory in Canada.

Family/Domestic Violence Courts

Family/domestic violence courts are designed to handle cases of domestic/family violence by offering an integrated, collaborative approach focusing on supporting victims, increasing offender responsibility, and providing early intervention. These courts currently operate in Newfoundland and Labrador, Nova Scotia, New Brunswick, Quebec, Ontario, Manitoba, Saskatchewan, Alberta, British Columbia, Yukon, and Northwest Territories.

Pandemic relief funding

Legal aid plans were provided with additional criminal legal aid funding in 2021-22 to address pressures resulting from the COVID-19 pandemic. Funding was provided for both technological and service delivery improvements to help mitigate the impact of the pandemic on criminal legal aid operations. Table 20 provides a detailed inventory of the funded initiatives. Overall, there was a roughly even breakdown in spending between technological and service delivery initiatives. Many jurisidctions used the technological funding to purchase equipment (e.g., laptops, webcams, etc.) to support/improve the ability of counsel to participate in remote appearances or to increase their information technology capacities (e.g., hiring an IT manager). Service delivery funds were often spent to expand access to court time, through hiring additional counsel, or creation of expanded hours for bail hearings.