Legal Aid Service Delivery in Rural and Remote Communities across Canada: Issues and Perspectives in the Context of COVID-19

Part B: Literature Review

The focus of the literature review was on the demographics and legal needs of individuals in rural and remote areas, their relationship with and mastery of technology, the range and nature of legal/social services available to these populations, challenges in the delivery of these services, and the use of technology to provide legal services.

1. Legal Services Users

The literature on the demographics and legal needs of legal services clients in rural and remote areas indicates that they are predominantly Indigenous persons, males with criminal law matters, seniors, and women with family law matters. Cohl and Thomson state that rural and remote areas are comprised of a disproportionate number of single mothers, Aboriginal people, people with low educational attainment and elderly, disabled or unemployed individuals.Footnote2 The literature reviewed suggests that in some cases these issues can be closely related. For example, in an article about enhancing access to justice for women in rural and remote areas of BC, Skinnider and Montgomery state that women living in remote areas and who decide to leave the family home are at increased risk of experiencing multiple forms of disadvantage, such as debt, housing, employment, social assistance, additional family problems, and legal actions.Footnote3

In other situations, the legal issues can be more diverse. Referring to legal needs encountered in the voluntary clinics that travel to Puvirnitug and Salluit in Nunavik in the period 2017 – 2019, Beaudet-Centomo and Leggett-Bachand stress the multiplicity of legal issues, including family law, administrative law, general civil wills and estates, child protection and consumer law.Footnote4

In terms of the extent to which technology is used by legal service users in rural and remote areas, a 2021 Council of Canadian Academies study emphasizes the “digital divide” between Indigenous communities and non-Indigenous communities. The authors argue that while the digital divide often refers to urban regions having better connectivity than rural and remote ones, there is also a substantial connectivity gap between Indigenous communities (in urban as well as rural and remote areas) and non-Indigenous communities.Footnote5 However, this pattern may vary by province. A study by the B.C. Legal Services Society found that up to 90% of Indigenous family legal aid clients have smart phones.Footnote6 In a 2020-21 study of remote legal services in Alberta, Stevenson stated that the digital divide was identified by all survey participants and many resources online as the most significant barrier to access to remote legal services for marginalized individuals. She referred to a Canadian Radio-Television and Telecommunications Commission (CRTC) report that stated that all Canadians, whether at home, at work, or on the road, should be able to connect their phone using LTE and should have an Internet connection with access to broadband speeds of at least 50 Mbps download and 10 Mbps upload and access to unlimited data. The CRTC report states that nearly 86% of households overall have that level of service currently, but in rural areas only 40% do. The CRTC data shows that in First Nation communities, approximately 30% of households have Internet connections with the recommended speed.Footnote7

2. Service Provision

This section describes findings from the literature related to the legal services and related social/health services that improve accessibility and contribute to positive resolution of legal issues in rural and remote areas. It is important at the outset to frame the discussion of innovations within the context of the significant limitations currently imposed by poor or non-existent connectivity in northern and remote parts of the provinces and territories.

In 2021 Legal Aid BC published a literature review and final report on achieving digital equity in access to justice, authored by Kate Murray.Footnote8Footnote9 The literature review describes BC’s “urban-rural divide” in connectivity, and refers to similar patterns nationally:

... province-wide connectivity trends do not extend evenly to households in rural and Indigenous communities. Nationally, Statistics Canada reports that households in rural areas are almost twice as likely to not have home Internet access and are almost 10 times more likely to cite Internet quality as the reason for not having Internet at home (Statistics Canada, 2019d). In BC, only 36% of rural communities and 38% of rural Indigenous communities have access to 50/10 Mbps Internet speeds (Government of British Columbia, 2021a). Download speeds are slower in rural communities than in urban areas; in 2015, BC’s rural download speeds were, on average, 6.1 Mbps slower than in urban communities (KPMG, 2019). In recent research with indigenous communities across the province, the Union of BC Indian Chiefs (UBCIC) has described how many rural communities’ outdated and substandard connectivity infrastructure results in “limited bandwidth and poor reception causing interruptions in both Internet and telephone services” (UBCIC, 2020, p. 15).Footnote10

In her final report, Murray also summarizes statistical data about the challenges experienced by different socio-economic categories of users drawn from a survey of BC residents for the Achieving Digital Equity study:

Looking for legal information online presents challenges for those in lower income households, especially among those 65 and older…. When compared with those in moderate to high income households, it becomes even clearer that those in lower income households are less inclined to look for legal information and help online, are less confident in their ability to find and understand that information (including where to start looking and not being confused or overwhelmed by the information found) and are less apt to have a private space to use the Internet for this purpose. This survey also found that formal education (completion of post secondary schooling) is related to increased confidence, trust, and willingness to search for legal information online.Footnote11

The services offered to clients in rural remote locations include – but are not limited to – full legal aid representation by staff and private bar lawyers for adult and youth criminal matters, civil applications (e.g., child protection, family matters, and in some cases immigration and refugee matters.)Footnote12 While approval of legal aid for these types of matters is universal for persons who meet the income requirements in their jurisdiction, the key issue is the range of services available in rural and remote areas to facilitate access to legal aid, and/or to provide alternative or complementary assistance to resolve both the primary and related issues.

The literature describes service settings and modalities that address a wide variety of legal issues and may be effective in connecting users in rural and remote areas to needed resources. Abramowicz praises the Ontario community clinic model for providing a range of services, “… under one roof, as part of a coordinated, holistic response to the legal needs of the poor in a particular community.Footnote13 Insofar as these clinics are situated in all regions in that province, there is at least the potential to serve clients from remote locations in these communities. Many of the clinics have additional satellite offices to facilitate service to a broader geographical area. For example, the Keewaytinok Native Legal Services Clinic is based in Moosonee, Ontario, but lawyers travel to Moose Factory (across James Bay) once a week to provide legal services to those in the First Nations community.

In a review of access to justice for women living in rural and remote areas of BC, Skinnider and Montgomery describe an extensive array of justice services in B.C. (e.g., PLEI, legal advice and representation services, provincial justice services, and supports for advocacy services). The authors note that although there is some literature that focusses on access to justice for Indigenous women in rural and remote areas, the literature is much more limited in relation to other minority groups. A sampling of public legal information services includes the Justice Education Society, Clicklaw B.C., Courthouse Libraries B.C., People’s Law School, Battered Women’s Support Services and Parent Support Services. Legal advice and population services include community-based services provided by B.C. Legal Services (now Legal Aid BC), Access Pro Bono, Family Justice Centres and advocacy/research services. Although physical outreach services to specific rural/remote locations are usually not formally defined, a few services such as Community Partners of Legal Aid BC have explicitly been designed for that purpose.Footnote14 In addition, many services such as Battered Women Support Services are provided in small or rural communities around the province.

In the US context, Statz describes community rural librarians as a form of access that Access to Justice scholarship has so far largely neglected. She refers to one librarian in a very rural location who would be open to sponsoring a legal clinic one evening a week, claiming that it is accessible and is a setting in which rural residents feel comfortable.Footnote15

The role of libraries and librarians as sources of legal assistance for self-represented litigants or limited scope retainer litigants has been strongly advocated in Canada as well, both generally and in relation to rural and remote areas. Bilson, Lowenberger and Sharp refer to the work of John MalcomsonFootnote16 and state:

Malcolmson argues for ‘the approach of technology with a helper’ where an intermediary, such as a librarian, is connected with the technology, and can thereby improve a patron’s access to it. This is especially necessary given the aforementioned lower level of literacy and inadequate technological skills among some individuals in rural and remote areas. Seeking assistance from an intermediary is crucial for SRLs [Self-represented Litigants] and SRL [Limited Scope Retainer] clients using online legal resources in rural and remote areas. Since SRLs (and by extension, one can imagine, SRL clients) generally only identify legal problems with the assistance of a service provider, a trusted intermediary’s guidance with offline legal resources can be just as valuable.Footnote17

In a 2015 report for the Community Advocacy and Legal Centre in Ontario on the role of librarians and A2J outreach, Michele Leering described eight steps in a provincial “scaling-up project,” the last of which was:

Sharing of our emergent knowledge about how to overcome the barriers in rural and remote communities and build strong partnerships by uploading information to the PLE [Public Legal Education] Learning Exchange. A special section of the PLE Learning Exchange devoted to libraries could be very helpful.Footnote18

A report from Ontario’s Boldness Project widens the discussion of partnerships even further as an effective way of serving individuals in rural communities, stressing the advantages of team models used in the health field to provide holistic care to serve the elderly and persons with mental health needs. The report states that by leveraging the community networks of rural communities and working collaboratively with service-providers in other fields (e.g., in providing joint transportation services, it may be possible to reach out to people who would otherwise go without support.Footnote19 A report by the Canadian Centre for Policy Alternatives advocated a “one-stop shop” delivery model to meet a cross-section of legal needs, including direct representation for those outside financial eligibility for legal aid, or where the matter is not covered by legal aid:

If a one-stop shop is established, priority should be given to including rural and Northern Manitoba, where either there are no services currently available, or the gap in service delivery is significant as compared to urban centres. This could mean making use of technology and developing a digital access to justice strategy. The use of satellite clinics and operations in a hub and spoke model of one-stop shops may also present opportunities to increase services across a broader population of Manitobans.Footnote20

In a 2014 review of legal aid in Newfoundland and Labrador, John F. Roil recommended that the Legal Aid Commission partner with other agencies in a different way i.e., in the use of information technology:

The Commission needs to improve its information technology structure and develop more modern approaches to service delivery. Communication in remote areas should be a priority and partnering opportunities with other stakeholders in the justice system should be sought to share costs. More web page information would be an important tool in communicating with the public not only the various services available, but also profiles or information on the experience and skills of its representatives. The LAMIS [Legal Aid Management Information System] system must be reviewed to ensure it is still relevant, user-friendly and up to date.Footnote21

Discussing service provision challenges in rural and remote areas, Baxter & Yoon review four sets of policies to promote legal practices in these markets. They include location incentives to lawyers to practice in rural and remote areas (as exist in Manitoba), place-based education targeting applicants with pre-existing ties to rural and remote communities (as practiced by Lakehead University in Thunder Bay), succession planning/recruitment within law firms, and network building to link lawyers in a way that allows them to offer a broader and more flexible array of legal services in a given locale (e.g., Alberta’s SoloNet Pilot Project).

The authors stress that lawyers’ substantive areas of practice matter as much as their physical location. They state that:

... general incentive programs of the type deployed to date are likely to be blunt instruments that would better serve rural and remote clients by targeting specific practice areas where localization matters the most … Second, location incentives might build in considerations about recruits’ geographic scope of practice by including bonuses for individual lawyers or law firms that provide legal services across a certain range of practice specialties. Similar strategies of “practice bonusing” have been employed in the health care field with some success.Footnote22

Legal Aid BC’s Community Partners program funds part-time workers in social agencies in rural/remote areas across the province who assist individuals to resolve their legal problems either through referral to a Legal Aid office, to PLEI resources, or to social agencies.Footnote23

A 2015 Canadian Bar Association report stressed the need to set what they refer to as “coverage and eligibility benchmarks”, i.e., standards. A sample coverage benchmark “… prioritizes assistance to persons at site and those with complex needs. This includes people with a disability, people in remote areas, people from non-English and/or non-French backgrounds, homeless people…”Footnote24

One of the sample eligibility benchmarks was

... legal aid providers must take into account special circumstances making it difficult to obtain legal assistance. Special circumstances include language or literacy problems, intellectual, psychiatric or physical disabilities, a person’s remote location or status as a prisoner, or where the person is otherwise at risk of social exclusion.Footnote25

A CBA report from 2021 described how remote proceedings have generally been successful in meeting many of the needs of courts, administrative tribunals, other dispute resolution bodies, mediators and arbitrators during the COVID pandemic:

Generally there is a recognition that remote proceedings have been successful – especially for appeals, matters with lesser monetary value and less complex matters. Videoconference platforms for remote mediations, arbitrations and hearings, while not always ideal because of technical challenges, ensure some level of continuity for the justice system. Working remotely also increases access to justice by eliminating geographical and financial constraints for some parties (income loss for time off work, travel costs, etc.).
Electronic filing of court documents (via secure drop box, online portals, emails, etc.), as well as payment of court fees by telephone are widely seen by lawyers as major steps forward. Virtual witnessing of wills and powers of attorney was also a welcome change.Footnote26

Among many recommendations, the report concluded:

All dispute resolution bodies (courts, tribunals, boards, etc.) should permanently implement the following measures to improve access to justice, modernize and address long-standing challenges in the justice system:
  1. Remote (video, online, telephone) proceedings should be available for settlement conferences, examinations for discovery, various hearings, motions, trials and appeals. Remote proceedings should continue especially for procedural, uncontested, shorter and less complex matters. While the court, tribunal or other dispute resolution body should ultimately decide if a matter is to proceed remotely, the parties should be given an opportunity to be heard and present their position on proceeding remotely.
  2. Electronic filings (via secure drop box, online portals, email, etc.) of court documents and acceptance of service by email.
  3. Ability to remotely view hearings, trials or motions via an online platform (e.g., Zoom, YouTube) (subject to addressing the concerns outlined in this report).Footnote27

These recommendations should also be seen in the constraining context of the “digital divide” that exists in most northern and remote locations, as discussed in section 2 (p. 7) of the current report.

A report by the Canadian Forum on Civil Justice provides several examples in BC, Manitoba and Ontario of intake and financial supports in training law students to increase the professional presence of lawyers in remote areas.

For example,

The approach to increasing the professional presence of lawyers in Northern Ontario has been difficult. Instead of financially incentivizing students or young lawyers to move from the city to rural areas, Lakehead University, located in Thunder Bay, created its own Faculty of Law in 2013 to source and train lawyers who have rural backgrounds, and are more likely to stay and practice in the communities they have ties to. This model of legal education follows a ”place-based” methodology that meets the challenges of placing lawyers in rural areas by sourcing them from those areas to begin with.Footnote28

In northern parts of jurisdictions, in addition to the problem of connectivity in rural and remote areas, the challenges of remote delivery can be related to the weather (e.g., it is too cold for travel), to local customs (e.g., people are away hunting or fishing), or to availability of facilities. Consultation and coordination with local authorities are therefore essential. In a description of service delivery to Kuujjuaq and Puvirnitug in Northern Quebec, Chloé Beaudet-Centomo and Nancy Leggett-Bachand described advance contacts with secretary-treasurers in small community offices, who would promote the impending visit of volunteer lawyers and notaries to their local council and local radio. For their part, the visiting lawyers would commit to two consecutive sessions in the communities to ensure continuity of the dossiers they were handling.Footnote29

Another more local approach to servicing remote areas is the Wellington County Mobile Legal Service, a law van that operates in outlying communities and is staffed by outreach workers with Skype connections to a lawyer, paralegal and community legal worker.Footnote30 A similar mobile service serves outlying areas near Montreal.

The Boldness Project is specifically designed to address justice challenges in rural and remote communities in five regions of Ontario. Its many project activities include:

  • Enhancing legal professional presence and capabilities
  • Providing more varied legal services and services in more areas of law
  • Creating alliances with health care providers
  • Erasing geographic boundaries between four clinics to expand the client service menu
  • Identifying and training “Sheila’s” in rural and remote areas (i.e., trusted persons to help individuals with legal issue identification and connection to legal resources)
  • Creating an app that will allow a range of users to improve their access to justice.Footnote31

The literature offers many examples of innovative uses of technology to address legal needs in rural and remote areas. Writing from an international perspective but with clear relevance to most Canadian jurisdictions, in 2021 the Open Society Justice Initiative developed a guide for legal service providers about technology that can be used to provide legal services remotely. In addition to describing various types of accessible technology, the guide describes best practices for protecting client data and privacy online, and for managing access to courts during the pandemic.Footnote32

The Boldness Project in Ontario describes various applications that might be used effectively on smart phones to serve as a prototype for a “rural access to justice” app. The examples are drawn from many countries (e.g., Canada, Australia and the U.S.) and include both law-related (e.g., legal dictionary, location of nearest legal aid office) and medical apps (e.g., location of mental health centres or medical clinics). The main function of each app, its uses, and strengths and weaknesses are described.Footnote33