Civil legal aid in decline?

Like many components of Canada’s social safety net, legal aid beyond the charity of individual lawyers has its roots in World War II, when legal aid was provided to members of the Canadian Armed Forces and their dependents.  (For a solid historical background on legal aid from its origins to its state as of 2004, read the Library of Parliament publication entitled “Legal Aid in Canada.” Not much has changed since that time.)

While it took another twenty years before there was cost-sharing between federal and provincial governments for criminal legal aid.  A decade later, provincial spending on civil legal aid by provincial governments was matched by federal funds through the Canada Assistance Plan. Since that plan ended in 1996, the federal government transfers block funds to provincial governments with few strings attached, and on a per-capita, rather than matched-funds, basis.

According to the Canadian Bar Association, this was the beginning of significant access problems, especially for civil legal aid, which covers all matters not related to the Criminal Code: family law, refugee and immigration law, appeals of social services rulings, or even decisions by utility boards to terminate services.  In this 2006 submission to the United Nations Committee on Social, Economic and Cultural Rights in the context of its consideration of Canada’s compliance with the Convention on Social, Economic and Cultural Rights, the CBA concluded with a strong recommendation:

The federal government of Canada should provide targeted funds to support civil legal aid. In co-ordination with provincial and territorial governments, the federal government of Canada should guarantee effective national standards pertaining to coverage, eligibility and adequacy of civil legal aid.

Earlier this month, Statistics Canada released its report on legal aid resources and case load statistics for 2008-2009.  Providing very detailed expenditure and usage data by province, and historically for three years, the report demonstrates that in most provinces, considerably less funding is provided for civil legal aid matters than for criminal matters, and that funding for civil legal aid is declining over time in some provinces. These trends apply for both direct legal expenditures and all expenditures (including administration and other non-legal expenditures).

Except in Ontario, Manitoba and Alberta, staff lawyers provide more civil legal aid representation than private lawyers.  Only in Quebec and Ontario are more legal aid applications received for civil than criminal legal aid.  At the same time, only in Quebec and Ontario is the percentage of civil legal aid applications accepted approximately the same (and a little higher) than the acceptance rate for criminal legal aid applications.

A 2005 court challenge by the Canadian Bar Association to argue for the constitutional right to civil legal aid was rejected in the British Columbia Supreme Court, and in the BC Court of Appeal in 2008.

In a news release following a federal/provincial/territorial meeting of justice ministers, the provincial and territorial ministers renewed the urgent need for federal funding for civil legal aid, particularly in light of rising numbers of cases associated with immigrants and refugees.

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    • Lisa Sharp
    • March 28th, 2010

    Legal Aid Ontario is severely cutting certificates to private lawyers for many types of civil cases. They do this indirectly by making the rules or “checklist for qualifying” more difficult to meet. For example, there is a basic rule that if the other side isn’t contesting, you can’t get a certificate. BUT, what if the father has disappeared, kids were born in Canada, and the mother doesn’t speak English or French (refugee or immigrant) and she needs to go home to be with her family. She cannot obtain a passport or leave the country without a court order for country. She needs a lawyer to help her do the court application, but can’t get one through legal aid. Cases like this or with other extenuating factors happen all the time.

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