3.0 Study Background and Federal Context

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In the words of former Chief Justice Beverley McLachlin, access to justice is “the central justice issue in Canada today.” Community legal clinics are seen as a delivery model that significantly supports access to justice.

In order to better understand community legal clinics/justice centres in Canada, Justice Canada contracted Tim Roberts & Associates Consulting to conduct this research. The study was undertaken in the period January to August 2021, during which time the principal researcher worked closely with a federal advisory committee. Specifically, the project intended to answer the following questions:

• What clinics exist in Canada, and what types of service delivery models are used across the country? What legal services are available to clients from legal clinics?
• What are the funding models at legal clinics, and what are their relationships (funding/reporting/other) to legal aid plans and provincial governments? What strategies have legal clinics put into place to secure funding, particularly in the context of COVID-19?
• What is the socio-demographic profile of clients using legal clinic services? Are there differences between rural, urban, and remote clients in terms of socio-demographic profile and legal needs?
• What are the legal needs of clients using legal clinic services? How are these needs determined?
• What data do clinics collect?
• What measures have legal clinics put into place to serve their clients in the context of COVID-19?

The definition of a legal clinic in this study incorporates the following elements:

• Mode of service delivery:
  A legal clinic provides legal advice, information and/or assistance, either:
  • directly by a lawyer, and/or
  • by a paralegal who is under the direct supervision of a lawyer, and/or
  • by a lay advocate^{Footnote 4} or other in-house non-legal staff (e.g., articling students, law students, legal case workers) who is under the direct supervision of a lawyer.
  The legal advice, information or assistance may be provided either:
  • in-house (i.e., in a physical setting, including satellite clinics), and/or
  • in the form of secondary advice or outreach to community agencies that assist people with legal problems, and/or
  • through on-line resources.
• Type of legal matters
  As a federally funded study, the contractor was required to include, in all cases, legal clinics that address issues that are under federal jurisdiction (e.g., criminal law, marriage and divorce, immigration and refugee matters, federal income support, insolvency). However, it was decided not to separate out clinics that include matters of provincial jurisdiction. This is because the majority of clinics that are reviewed handle matters under both federal and provincial jurisdictions, in that intake is “holistic”. This means that except for some specialty clinics, legal clinics do not advertise themselves as serving only certain jurisdiction-specific case types. Rather, they exist to help individuals with legal issues, and during the intake process, they identify the extent of service that can be provided. This may be limited to the identification of Public Legal Education and Information (PLEI) materials, or extend to the provision of limited (e.g., 30 min) legal information or advice. In some cases, it may involve referral to legal aid or (depending on the focus of the clinic) having a private lawyer take on the case.
• Distinction from direct government services
  The term “clinics” as defined in this study does not include direct legal services by government employees. For example, Family Justice Centres in British Columbia would not be included, insofar as they are staffed by government employees who are accredited family justice counsellors and provide direct service to individuals going through separation or divorce. On the other hand, clinic services provided under the guidance of a local board of directors (e.g., centres de justice de proximité in Québec, community legal clinics in Ontario, etc.) would be included. The board of directors may be established either solely for the clinic itself or for an overall community service that includes the legal clinic. Thus, while funding for lawyer services through a legal clinic may come from a legal aid body, the key distinguishing feature of their services is that they are employed by organizations with a board of directors that is independent of the legal aid plan.

3.1 Federal Context

As noted in the previous section, the definition of legal clinics in this study includes the provision of information, advice and sometimes representation for key issues that relate to federal jurisdiction (but also does not preclude matters of provincial jurisdiction). By way of background, this section summarizes the key program areas delivered across the country by Justice Canada. The information is summarized or taken verbatim from the three referenced sites in the footnotes on the following page.

There are four broad federal program areas:

• The Legal Aid Program
  

  The Legal Aid Program is a cost-shared program that provides contribution funding to the provinces and territories. Legal aid services differ from legal clinics in that they primarily provide eligible clients with legal representation and advice. In Canada, there are currently three service delivery models for legal aid service: 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.

  Legal Aid Program funding covers the following areas:
  • the delivery of legal aid services for young persons facing proceedings under the Youth Criminal Justice Act, and for economically disadvantaged persons charged with serious and/or complex criminal offences and facing the likelihood of incarceration, proceedings pursuant to Part XX.1 of the Criminal Code, proceedings under the Extradition Act, and appeals by the Crown, or in certain cases, their own appeals;
  • the delivery of immigration and refugee legal aid services in the six provinces (British Columbia, Alberta, Manitoba, Ontario, Quebec, and Newfoundland and Labrador) that currently provide legal aid services to individuals involved in the immigration and refugee determination system under the provisions of the Immigration and Refugee Protection Act;
  • the management of State-Funded Counsel cases on behalf of the federal government, where the Attorney General of Canada is ordered by a court to provide funded defence counsel^{Footnote 5}; financial support to organizations that provide legal advice to persons who have experienced sexual harassment in the workplace, regardless of their socioeconomic status.
• Justice Partnership and Innovation Program (JPIP)
  • The JPIP supports a variety of initiatives that respond to the changing conditions affecting Canada’s justice system. As a discretionary grants and contributions program, JPIP transfers funds to third parties to carry out activities that meet its objectives.
  • One of JPIP’s core funding areas supports the ten designated public legal education and information (PLEI) organizations in promoting greater access to justice.^{Footnote 6}
  • Funding from Budget 2021 has also been available through JPIP for the development and dissemination of PLEI outreach campaigns in order to better inform workers within specific employment sectors about their rights, and how they can access help if they have been harassed in the workplace.^{Footnote 7}
• Access to Justice Services Agreements (AJA)
  • The AJAs are funding arrangements between the federal government and the three territories (Yukon, the Northwest Territories, and Nunavut). The AJAs are the means by which the Government of Canada financially supports the delivery of access to justice services in the North. Funding is provided for PLEI, legal aid (criminal and civil), and Indigenous courtwork services.^{Footnote 8}
• Indigenous Courtwork Program
  • Federal financial support for the Indigenous Courtwork Program is provided through contribution agreements with participating provincial governments.
  • In most jurisdictions, Indigenous Courtwork Services are delivered by Indigenous service delivery agencies under contract to the provincial or territorial government. In Manitoba, and the Northwest Territories, courtworkers are employees of the provincial/territorial government. In Nunavut, courtwork services are provided through Legal Services clinics.
  • Indigenous Courtwork Programs currently operate in every province and territory with the exception of Prince Edward Island, Newfoundland and Labrador and New Brunswick. Nationally, over 180 courtworkers provide services to approximately 60,000 Indigenous clients in over 450 communities each year.^{Footnote 9}

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