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The State of Civil Legal Aid in Canada: By the Numbers in 2011-2012

Ab Currie, PhD

Friday, May 3, 2013

Historically, legal aid was the first response to the access to justice problem. At present it occupies by far the largest terrain in the access to justice landscape in Canada. Access to justice in Canada is poised on the edge of significant changes encouraged by the work of the National Action Committee on Access to Justice in Civil and Family Matters, led by Chief Justice Mclachlin and Justice Cromwell of the Supreme Court. As these changes play out over the coming years the legal aid system is in a potentially powerful position to play a major role because of its large presence in access to justice. Thus the vitality of the legal aid system is of major importance. This note presents a brief statistical picture of the current state of civil legal aid in Canada.[1]

Legal aid in Canada is provided by 13 legal aid organizations, one in each province and territory. Each legal aid “plan” as they are called in Canada is a statutory body created by the province or territory, but operating at arm length to government governed by an independent board of directors.[2]

Government Funding
On average provincial and territorial government contributions make up 92 percent of all legal aid funding. Across the 13 jurisdictions the level of government funding ranges from 78% to 100% of legal aid expenditures. The high level of government funding is significant in itself. Notwithstanding questions about the adequacy of funding to meet the needs for legal aid services this expresses a principle that the provision of legal aid is primarily the responsibility of government.

Over the past five years provincial and territorial contributions to legal aid overall, including both criminal and civil legal aid,[3] increased by 19.7% in current dollars from $492,943,000 in 2008-2009 to $590,196,000 in 2011-2012 Over the same period contributions from government increased by 11.7% in constant 2002 dollars from $442,101,000 to $492,224,000.

The percentage of funding from government sources increased over the five-year period from 84% in 2008-2009 to 92% in 2011-2012. Monies from client contributions declined over the period from 4% to 3%. Contributions by the legal profession remained constant at 1%. Revenues from investments, primarily interest on lawyer’s trust accounts from Law Foundations, declined from 12% of all funding for legal aid to 4%.

Expenditures on Civil Legal Aid
Direct service expenditures on civil legal aid increased by 18.9% in current dollars from $259,946,000 in 2007-2008 to approximately $309,022,000[4] in 2011-2012.  Expenditures increased for all legal aid plans over the past 5 years. Direct service expenditures were down in three provinces between 2009-2010 and 2010-2011. Annual fluctuations in the data occur frequently. Therefore, this brief article focuses primarily on the most recent five-year period.

Civil and Criminal Legal Aid
Because legal representation in criminal matters has a stronger foundation in the Constitution than civil, spending on criminal legal aid is usually taken as the benchmark for spending on civil legal aid. Overall, more money is spent on criminal than civil legal aid in Canada. Based on estimated 2011-2012 figures to adjust for missing data direct service expenditures on civil legal aid made up 47.7% of total direct service expenditures on criminal and civil combined. In three provinces, Prince Edward Island, Ontario and Quebec direct service expenditures on civil legal aid exceeded expenditures for criminal legal aid.

Family and Other Civil Matters
Most civil legal aid is in family law. In 2011-2012 legal aid in family law accounted for 61.8% of direct service expenditures, with 38.2% on non-family civil matters[5]. This mirrors the proportions based on services provided. In the same year 61.6% of approved applications were for family matters while 38.4% were for legal aid services in non-family civil areas of law.

Demand for Service and Level of Service Provided
Demand for civil legal aid, measured in terms of total applications for service, declined over the five-year period from 2007-2008 to 2011-2012. The total number of applications declined by 4.8% from 432,273 to 411,628. A decline in demand would not have been expected following the great recession in late 2008 and the slow economic recovery since.

There was essentially no change over the previous five years in the level of full service measured in terms of approved written applications for legal aid. In 2007-2008 legal aid plans approved 209,877 approved applications compared with 209,936 in 2011-2012.

The number of duty counsel services in civil matters increased by 19.3% over the past five years, rising from 207,112 in 2007-2008 to 284,686 in 2011-2012. Duty counsel services were mainly provided in family court. Family duty counsel made up 92% (261,972) of all duty counsel matters in 2011-2012.

The number of refused applications in civil matters increased between 2007-2008 and 2011-2012 in five out of eight jurisdictions that reported data.[6]

A Longer View
The current levels of expenditures and services are considerably lower than their historical high levels in the early to mid 1990’s. In 1994-1995 direct service expenditures on civil legal aid were $329,787,000. This was $11.37 per capita. In 2007-2008 per capita direct service expenditures had declined to $7.89 per capita ($259,946,000). Per capita direct service expenditures on civil legal aid increased to $8.96 in 2011-2012 ($309,022,000). This represents a 13.6% increase in per capita direct service expenditures over the recent five-year period. However, it reflects a 21.2% decline from the level of per capita direct service expenditure in 1994-1995.

Similarly, approved applications for civil legal aid reached their historical high of 17.8 per 1000 population (505,787) in 1992-1993. Approved applications declined to 6.4 per 1000 population in 2007-2008 and to 6.1 per 1000 population in 2011-2012. Approved applications per 1000 population declined by 65.7% from the historical peak in 1992-1993.

The numbers tell of good news in the recent past and bad news over the longer term. Over the past five years legal aid expenditures have increased. Government is by a wide margin the primary funder of legal aid and this is increasing in relative terms as other sources of revenue falter.

The increased demand for civil legal aid that might have been expected in the wake of the great recession has not shown up in the data on total applications. However, legal aid has held its ground in terms of the amount of full services provided (approved applications) and has increased the number of duty counsel services.

Legal aid has never fully recovered from the cuts to legal aid that followed the recession in the early 1990’s. Levels of expenditure and service are much lower in per capita terms than they were in the early to mid 1990’s. Civil legal aid in Canada is not as healthy as it was in its younger years but, in mid-life, it is at least holding its own. However, it probably will not play the important, and perhaps key, role it might in the evolution of access to justice in Canada without resources to repair the erosion that two recessions have left in their wake.