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.Footnote 11 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 (Ontario offers family duty counsel, tenant duty counsel is offered through the clinic system), 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,Footnote 12 while Ontario applies financial and legal eligibility criteria which are outlined on their website.Footnote 13 British Columbia applies eligibility criteria only to family duty counsel services.Footnote 14

Over 1.2 million duty counsel assists were provided in 2022-23

There were 1,241,222 duty counsel assists provided to legal aid clients in 2022-23. Of these, 89% 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 2018-19 and 2019-20, when the number of duty counsel assists dropped by 38% in 2020-21 in the wake of the pandemic. From 2021-22 to 2022-23, the data show duty counsel services have had a strong recovery post-pandemic. The number of criminal duty counsel assists has surpassed pre-pandemic levels, up by 8% in 2022-23 compared to 2018-19. Civil duty counsel assists are still below pre-pandemic levels, but continue to increase from a pandemic low, up 47% from the previous year.

For jurisdictions that provided data on both criminal and civil duty counsel services, British Columbia had the lowest proportion of criminal matter assists, with 74% criminal assists and 26% civil assists (Table 9).

Over 129 million dollars spent on duty counsel services in 2022-23

Nationally, there were total expenditures of $129,431,063 for duty counsel services in 2022-23 ($135 million in constant 2023 dollars). This was an increase of 18% from the previous year, and 23% compared to 2018-19 (Figure 12). Using unadjusted 2022-23 data, criminal duty counsel services represented the highest proportion of duty counsel expenditures, at $100,800,298, or 78% of total expenditures in 2022-23. Civil duty counsel services made up 21% of expenditures. Within criminal duty counsel services, 97% of expenditures went towards adult matters (Table 10).

Figure 12. Duty counsel services continue to increase, mostly surpassing pre-pandemic levels; expenditures are up 18% from the previous year, while duty counsel assists are up 34% in the same time period.

Figure 12. Duty counsel services continue to increase, mostly surpassing pre-pandemic levels; expenditures are up 18% from the previous year, while duty counsel assists are up 34% in the same time period.
Figure 12. Duty counsel services continue to increase, mostly surpassing pre-pandemic levels; expenditures are up 18% from the previous year, while duty counsel assists are up 34% in the same time period. – Text version

There is a vertical bar graph showing duty counsel services and expenditures by type of matter. There are five different categories based on year from 2018-2023. Each bar is divided into two sections. The light purple sections represent the number of criminal duty counsel assists and the dark purple section represents the number of civil duty counsel assists. There is also a trendline plotting the amount of duty counsel expenditures in millions colored in grey.

The first bar shows duty counsel services and expenditures for 2018-2019. The light purple section of this bar shows 1,020,718 criminal duty counsel assists and the dark purple section 208,573 civil duty counsel assists. The duty counsel expenditure for this year is $103.87 million.

The second bar shows duty counsel services and expenditures for 2019-2020. The light purple section of this bar shows 1,036,525 criminal duty counsel assists and the dark purple section 168,532 civil duty counsel assists. The duty counsel expenditure for this year is $113.73 million.

The third bar shows duty counsel services and expenditures for 2020-2021. The light purple section of this bar shows 670,286 criminal duty counsel assists and the light purple section 71,796 civil duty counsel assists. The duty counsel expenditure for this year is $102.62 million.

The fourth bar shows duty counsel services and expenditures for 2021-2022. The light purple section of this bar shows 836,147 criminal duty counsel assists and the dark purple section 92,480 civil duty counsel assists. The duty counsel expenditure for this year is $114.77 million.

The fifth bar shows duty counsel services and expenditures for 2022-2023. The light purple section of this bar shows 1,109,380 criminal duty counsel assists and the light purple section 131,842 civil duty counsel assists. The duty counsel expenditure for this year is $135.18 million.