Legal Aid in Canada, 2016-17

List of tables

• Table 1 – Total legal aid plan revenues, by type of revenue, annual, 2016-17
• Table 2 - Legal aid plan expenditures, by type of expenditure, 2016-17
• Table 2b - Total legal aid plan administrative costs, 2016-17
• Table 3 - Legal aid service delivery by private and staff lawyers, 2016-17
• Table 4 - Legal aid plan personnel as of March 31, 2016-17
• Table 5 - Legal aid applications, by type of matter, 2016-17
• Table 6 - Approved legal aid applications for full service, by type of matter (number), annual, 2016-17
• Table 7 - Refused legal aid applications, by reason for refusal, criminal and civil matters, 2016-17
• Table 8 - Refused legal aid applications, by reason for refusal, criminal matters, 2016-17
• Table 9 - Refused legal aid applications, by reason for refusal, civil matters, 2016-17
• Table 10 – Duty counsel services, by type of matter, 2016-17
• Table 11 – Appeal applications, approved and refused for legal aid services, by criminal and civil matters, 2016-17
• Table 12 - Incoming and outgoing civil legal aid cases processed under the interprovincial reciprocity agreement, 2016-17
• Table 13 - Legal aid clients, by age, gender, and type of matter, Canada, 2016-17
• Table 14 - Indigenous legal aid clients by gender and type of matter, 2016-17
• Table 15 – Criminal legal aid cases by type of offence and in year expenditures, adults, Canada, 2016-17
• Table 16 – Criminal legal aid cases by type of offence and in year expenditures, youth, Canada, 2016-17
• Table 17 - Immigration and refugee legal aid certificates and expenditures, by province/territory and type of lawyer, 2016-17
• Table 18 - Criminal legal aid innovations implemented in 2016-17

Access to justice is a key issue facing all stakeholders in the justice system. Legal aid services support access to justice for those who are economically disadvantaged and unable to pay for a lawyer on their own.

The federal government supports legal aid services in the provinces and territories through two sources. The Department of Justice Canada’s (JUS) Legal Aid Program provides funding to the provinces through contribution agreements for criminal legal aid, and to the territories, through consolidated access to justice services agreements. The Department of Finance Canada’s Canada Social Transfer (CST) is a block transfer payment provided to each province and territory for provincial health care, post-secondary education, social assistance and social services. Civil legal aid is an eligible expenditure under the CST.

Each province and territory is responsible for the delivery of criminal and civil legal aid services based on their own policies and procedures.

The Legal Aid Program also contributes annual funding to six provinces (Alberta, British Columbia, Manitoba, Newfoundland and Labrador, Ontario, and Quebec) for immigration and refugee (I&R) legal aid. I&R legal aid covers the provision of legal advice, assistance and representation for immigration and refugee matters.

Legal aid plans in Canada reported receiving total funding of more than $846 million in 2016-17. Government sources contributed the vast majority of this amount—96% of the total. 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 both criminal and civil legal aid. In 2016-17, provincial and territorial governments reported contributing more than $670 million to legal aid plans across Canada, which amounts to 79% of total legal aid revenues.

In 2016-17, JUS, through its Legal Aid Program contributed more than $138 million to the provinces and territories for the delivery of criminal legal aid, civil legal aid, and I&R legal aid (where applicable). This amounts to 16% of total legal aid revenues (Table 1).

Ontario and Quebec are the largest legal aid plans, comprising 54% and 22% of all legal aid plan revenues respectively, or 15% for the two plans combined (Table 1).

– Refers to data that were not available or that were not provided by the jurisdiction.

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

Table 2 shows 2016-17 legal aid plan expenditures, broken down by type of expenditure. Overall, 50% of legal aid expenditures were related to criminal matters, 45% were related to all other civil matters and 5% were related to I&R matters. Ontario and Quebec had the highest legal aid expenditures in the country, with 53% of all expenditures as a proportion of the national total from Ontario and 18% from Quebec.

Looking at legal aid expenditures by jurisdiction, the jurisdictions with the highest proportion of total legal aid expenditures on criminal matters (of all legal aid expenditures for that jurisdiction) were Saskatchewan (78%), Manitoba and Alberta (77% each). Quebec (42%), Prince Edward Island (43%), and Ontario (43%), had the lowest proportions of expenditures dedicated to criminal matters.

– Refers to data that were not available or that were not provided by the jurisdiction.

Total legal aid plan expenditures from Table 2 include these admin costs

Legal aid services are delivered primarily by private bar lawyers

Looking at the breakdown of legal service delivery by type of lawyer, in 2016-17, 93% of the over 17,000 lawyers providing legal aid services in Canada were private bar lawyers (Table 3). Staff lawyers made up the remaining 7% of lawyers providing direct legal aid services to clients.

Among private bar lawyers, there were slightly more lawyers providing strictly civil law services than those providing strictly criminal law services (33% versus 27%). The highest proportion of staff lawyers provided strictly criminal law services (36%), and 7% provided strictly civil law services.

Overall, 44% of all lawyers providing legal aid services in Canada were in Ontario, and 27% were in Alberta. When looking at the breakdown between private and staff lawyer within each province/territory, British Columbia and Alberta had the highest proportions of private bar lawyers (99% and 98%), while Yukon and Newfoundland and Labrador had the highest proportions of staff lawyers (100% and 71%) (Table 3).

– Refers to data that were not available or that were not provided by the jurisdiction.

Non-lawyers make up 10% 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. While lawyers made up 90% of legal aid plan personnel, non-lawyers made up the other 10% (Table 4).

Of the 1,872 non-lawyers working for legal aid plans, the most common were ‘support staff’ (33%), while ‘intake workers’ (19%), legal assistants (9%), and ‘other’ (i.e. managers) (8%) were the next most common types of non-lawyer personnel. Articling students (3%) and paralegals (1%) made up the remaining personnel (Table 4).

Refers to data that were not available or that were not provided by the jurisdiction.

Over 622,000 legal aid applications were received in 2016-17

When looking at applications for legal aid, the number of applications reflects the number of individual requests for assistance, rather than the total number of persons seeking assistance. Of the 622,349 applications for summary or full service assistance received in 2016-17, over half (55%) were for criminal matters, while 43% were for civil matters. The highest proportion of civil matter applications were for ‘other’ family (41%), followed by child protection (21%), ‘other’ civil non-family matters, and 8% for I&R. Of the 340,781 applications for criminal legal aid, 92% were from adults and 8% were from youth (Table 5).

Quebec received the most applications at 266,611, which accounted for 43% of all applications received nationally in 2016-17. Ontario and Alberta were the next two provinces which received the most applications (21% and 12% respectively). Looking at the breakdown between criminal and civil applications within each province/territory, Yukon (81%), Saskatchewan (73%), and Manitoba (71%) had the highest proportion of criminal applications compared to civil (including I&R). Quebec (44%) and New Brunswick (48%) had the lowest proportion of criminal applications compared to civil.

Six jurisdictions (Newfoundland and Labrador, Nova Scotia, Ontario, Manitoba, Saskatchewan and British Columbia) reported on the number of applications received (for all types of matters) from individuals who self-identified as Indigenous. Manitoba and Saskatchewan received the highest proportions of legal aid applications from self-identified Indigenous applicants (46% and 48% respectively). In British Columbia, applications from self-identified Indigenous applicants made up 28% of those received and in Ontario, these applications made up 13% of all applications received in the province.

– Refers to data that were not available or that were not provided by the jurisdiction.

Over three quarters of legal aid applications received were approved

An application for legal aid may be approved for either summary or full legal aid services. 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 services represent more extensive legal assistance. Applications not approved for full legal aid services may receive summary services instead.

Table 6 shows the number of approved legal aid applications for full service. In 2016-17, there were 485,539 applications approved for full service; 57% of these were for criminal legal aid, and 42% were for civil legal aid. Of the criminal applications, the majority (91%) were for adult matters, and 9% were for youth matters. For civil cases, more than two-thirds (69%) were for family matters, and 31% were for other civil matters.

When looking at the proportion of approved applications by province/territory and type of matter, Yukon (81%) and Manitoba (78%) had the highest proportion of approved applications that were criminal as opposed to civil. New Brunswick and Quebec had an almost even split between criminal and civil legal aid applications approved for full service, with New Brunswick at 51% approved applications that were criminal, and Quebec at 45% approved applications that were criminal.

– Refers to data that were not available or that were not provided by the jurisdiction.

Financial ineligibility was the most common reason for application refusal

Refused applications refer to 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 service that subsequently receive summary services. Overall, of the 106,452 applications (both criminal and civil) where a reason for refusal was reported, 41% were refused for financial ineligibility. ‘Other reasons for refusal’, and ‘coverage restrictions’ were the next most common reasons for refusal (34%, and 16% respectively) (Table 7).

When looking at the breakdown of reasons for refusal by province/territory, Quebec and Prince Edward Island had the highest proportion of applications refused for financial ineligibility (76%). New Brunswick (53%) and Newfoundland (52%) had the highest proportion of applications refused for coverage restrictions.

– Refers to data that is not available or that was not provided by the jurisdiction.

Highest proportion of criminal legal aid applications were refused for financial ineligibility

When looking specifically at criminal legal aid applications, financial ineligibility remained the most common reason for refusal (41%), followed by ‘other reasons for refusal’ at 36% (Table 8). By province/territory, Quebec had the highest proportion of financial ineligibility refusals (86%), New Brunswick had the highest proportion of coverage restriction refusals (61%), Yukon and Ontario had the highest proportions of lack of merit refusals (29% and 27% respectively), and Northwest Territories had the highest rate of refusal of all jurisdictions for non-compliance or abuse, at 44%.

– Refers to data that is not available or that was not provided by the jurisdiction.

When specifically looking at other civil applications, the proportions remained consistent, with 41% of applications nationwide being refused for financial ineligibility, and 33% falling under other reasons for refusal. Prince Edward Island had the highest proportion of other civil applications refused for financial ineligibility, Newfoundland and Labrador had the highest proportion of other civil applications refused for coverage restrictions (49%), and Ontario had the highest proportion of other civil applications refused for lack of merit (36%). For I&R applications, Quebec had the highest proportion refused for financial ineligibility (81%), Newfoundland and Labrador had the highest proportion refused for coverage restrictions (36%), and Ontario had the highest proportion refused for lack of merit (41%) (Table 9).

– Refers to data that were not available or that were not provided by the jurisdiction.

Immigration and refugee applications had the lowest proportion of applications refused for coverage restrictions

Out of all application types (criminal, civil, I&R), I&R applications were the least likely to be refused for coverage restrictions (9%, compared to 16% for criminal, and 15% for ‘other civil’). Also, I&R applications had a slightly higher rate of refusal for financial ineligibility (45% compared to 41% for criminal and other civil) (Table 8 and 9).

Over 1.1 million duty counsel assists were provided in 2016-17

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.

Nine jurisdictions provided data on duty counsel services in 2016-17 (Table 10). There were 1,161,853 duty counsel assists provided to legal aid clients in these jurisdictions. A total of 80% of these assists were for criminal matters, and 20% were for civil matters (including I&R).

For jurisdictions that provided data on both criminal and civil duty counsel services, Yukon and Northwest Territories had the highest proportions of criminal duty counsel assists provided, with 100%, and 99% of duty counsel assists for criminal matters, respectively, and 0.4% and 0.5% for civil. British Columbia had the lowest proportion of criminal matter assists, with 68% criminal assists and 32% civil.

– Refers to data that were not available or that were not provided by the jurisdiction.

About half of applications for legal aid services to deal with an appeal were approved

Out of the 9,823 applications for legal aid services for an appeal case, more than two-thirds were approved for legal aid services (69%). For criminal matters, 61% were approved, and for civil matters almost three-quarters (73%) were approved (Table 11).

Aside from the jurisdictions that had all applications approved (Prince Edward Island, Yukon, and Saskatchewan), Nova Scotia had the highest proportion of appeal cases approved for legal aid services (85%), while British Columbia had the lowest proportion of cases approved (36%). For criminal cases, Nova Scotia had the highest proportion of cases approved (90%) and British Columbia had the lowest (28%). For civil cases, Nova Scotia again had the highest proportion of cases approved (78%), and New Brunswick had the lowest (33%) (Table 11).

– Refers to data that were not available or that were not provided by the jurisdiction.

There were more than 1,800 civil cases processed under the interprovincial reciprocity agreement in 2016-17

The interprovincial reciprocity agreement refers to the informal agreement among legal aid plans in Canada to handle non-resident civil cases. Under the terms of the agreement, applicants must request legal aid in their province/territory of residence, rather than in the province/territory where the legal recourse is sought. An approved application is then forwarded from the legal aid plan of the client’s province or territory of residence, to the legal aid plan which provides the legal aid service.

Outgoing cases refer to the number of applications for civil legal aid approved by the legal aid plan of a particular province or territory that are forwarded to other P/T legal aid plans for service. Incoming cases refer 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 2016-17 indicate that there were a total a total of 1,843 cases (Table 12). Of these, 961 were outgoing from a particular province or territory, and 882 were coming into a particular province or territory from another jurisdiction. Quebec had the highest number of cases outgoing from the province, with 188 cases approved in Quebec, but forwarded to another province or territory where the service was provided. Ontario had the highest number of incoming cases, with 240 cases which were approved in another province or territory, but the service was provided by legal aid lawyers in Ontario.

A majority of legal aid clients were male, and accessed criminal legal aid services

As shown in Table 13, overall, 61% of legal aid clients were male, while 39% were female. For criminal matters, the proportion of males was even higher (79%). For I&R matters, 63% of clients were male and 37% were female, however it should be noted that where an I&R matter relates to a principal applicant with family, only the principal applicant is counted as a client. For civil matters, a majority of clients were female (64%).

Overall, the highest age category was 18-34 (46%). This trend appears to be the same for males, females and others in all types of matters (criminal, I&R, and civil). For male criminal legal aid clients, the most common age group was 18-34 (53%), followed by 35-49 (27%). The same pattern was true for female criminal legal aid clients, with the most common age group being 18-34 (53%) followed by 35-49 (28%).

For I&R legal aid, most male clients were in the 18-34 and 35-49 age groups (53% and 36%). The same was true for female clients, with 48% in the 18-34 age group, and 35% in the 35-49 age group. For civil legal aid, male clients were most often in the 35-49 and 18-34 age groups (32% and 27%); female clients were most often in the 18-34 and 35-49 age groups (42% and 32%) (Table 13).

– Refers to data that were not available or that were not provided by the jurisdiction.

Notes:

• NB did not report on age of clients.
• PEI limited reporting on age of clients.
• YK data systems are unable to capture these statistics.

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

Legal aid plans from Nova Scotia, Ontario, Manitoba, Saskatchewan and British Columbia were able to provide data on self-identified Indigenous legal aid clients. Out of a total of 45,294 Indigenous clients served by legal aid plans in 2016-17, 77% accessed criminal legal aid (adult and youth), while 23% accessed civil legal aid. The highest proportion of clients were male, accessing criminal legal aid services (60%) (Table 14).

A majority of Indigenous adult and youth criminal legal aid clients were male (75%). In civil cases, there were more female Indigenous clients than male (66% versus 34%).

Legal aid cases for assault were the most frequent offence category, with the highest proportion of in-year expenditures for adult criminal legal aid

Table 15 provides a breakdown of current legal aid cases and incurred expenditures in 2016-17 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.

The category ‘other offences’ made up the highest proportion of both case volume and in-year expenditures, at 59% of cases, and 42% of in-year expenditures in 2016-17. Among more specific offence categories, assault (11% of case volume and 13% of in-year expenditures) and ‘theft, break and enter, possession of stolen property’ (10% of case volume and 9% of in-year expenditures) were the most frequent type of legal aid cases.

There were a few categories of offences which made up a very small proportion of case volume, but in comparison, a higher proportion of in-year expenditures. These included homicide, which accounted for 0.3% of cases, but 5% of in-year expenditures; sexual assault and robbery cases, which each made up 1% of the case volume, but 4% of expenditures; and administration of justice offences, which made up 3% of the case volume, but 6% of expenditures (Table 15).

  – Refers to data that were not available or that were not provided by the jurisdiction.

Notes:

• AB data is included in subtotals, but not in breakdown by offence categories. Some expenditures in SK and PEI are only included in subtotal, not in breakdown by offence categories.
• NB expenditures between adult and youth are pro-rated based on number of cases.
• Given the legal complexities of each case, not all costs are included in the ‘total in-year expenditures’ column; therefore the above data should not be used to calculate cost per case.

Legal aid cases for assault were 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 2016-17 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.
Similar to adult criminal legal aid, the category ‘other offences’ made up the highest proportion of both case volume and in-year expenditures, at 46% of cases, and 35% of in-year expenditures in 2016-17. Among more specific offence categories, assault (9% of case volume and 10% of in-year expenditures) and ‘theft, break & enter, possession of stolen property’ (8% of case volume and 7% of in-year expenditures) were the most frequent type of legal aid cases.

There were a few categories of offences which made up a very small proportion of case volume, but in comparison, a higher proportion of in-year expenditures. These included homicide, which accounted for 0.2% of cases, but 7% of in-year expenditures. Narcotics offences made up 2% of the case volumes, but 5% of expenditures, and administration of justice offences made up 2% of the case volume, but 5% of expenditures. Sexual assault cases made up 2% of the case volume, but 4% of expenditures (Table 16).

– Refers to data that were not available or that were not provided by the jurisdiction.

Notes:

• AB and QC data is included in subtotals, but not in breakdown by offence categories.
• Some expenditures in SK, NB, and PEI are only included in subtotal, not in breakdown by offence categories.
• In NB, expenditures between adult and youth are pro-rated based on number of cases.
• Given the legal complexities of each case, not all costs are included in the ‘total in-year expenditures’ column; therefore the above data should not be used to calculate cost per case.

Over 22,000 immigration and refugee legal aid certificates were issued in 2016-17

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

Table 17 shows the volume of I&R legal aid certificates as well as expenditures for I&R legal aid for 2016-17, and certificates carried over from the previous fiscal year. In 2016-17, there were 22,982 legal aid certificates issued, with 2,405 certificates carried over from the previous fiscal year, for a total of 24,387 certificates processed that year. Most certificates were handled by private bar lawyers (84%), while 11% were handled in specialized clinics, and 5% were handled through staff lawyers. These proportions remained relatively unchanged when certificates from the previous fiscal year are included. The majority of expenditures related to I&R legal aid (83%) are associated with private bar certificates.

Certificates in most provinces were predominately handled by private bar lawyers. Alberta was the only province where the percentage of staff lawyer certificates was almost as high as that of private bar certificates (55% versus 44%) (Table 17).

– Refers to data that were not available or that were not provided by the jurisdiction.

Specialized Courts

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 a particular type of crime or offender to reduce reoffending.^{Footnote 1} The following section provides information on the specialized courts operating in 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 which 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 10 jurisdictions that operate mental health/wellness/community courts. This includes Newfoundland and Labrador, Nova Scotia, New Brunswick, 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 Nova Scotia, Ontario, Manitoba, Saskatchewan, Alberta, and British Columbia.

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, Saskatchewan, Alberta, and British Columbia.

Youth Courts

Youth between the ages of 12 to 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, Ontario, Manitoba, Alberta, Saskatchewan and Northwest Territories.

Innovations

Legal aid plans provided information on innovative practices or programs that were implemented for criminal legal aid in 2016-17. An “innovation” refers to a new or improved way of delivering criminal legal aid that targets vulnerable populations, modernizes processes using technology, enhances business practices, and/or supports improved data collection and performance measurement.

Date modified:

2019-08-22