Legal Aid

Legal Aid

The availability of publicly funded legal services for poor clients in Canada has developed only in the latter half of the 20th century. Previously, lawyers were sometimes willing to provide free assistance to poor clients in meritorious cases, and judges would sometimes appoint lawyers to act for poor clients, but such legal services were essentially charitable. Modest arrangements to provide legal services for clients who could not afford them were begun in some provinces in the 1950s and early 1960s by means of municipal and provincial grants and with contributions from lawyers, but it was not until 1966 that Ontario enacted legislation establishing the first comprehensive provincial legal aid scheme. This legislation represented a major change in the philosophy of legal aid services - that legal aid was no longer a charity but a right.

The Impact of Cost-Sharing on Services

Legal aid programs had been adopted by all provinces and territories by the mid-1970s. Although legal aid services fall within the provinces' constitutional responsibility for the administration of justice, the federal Department of Justice became involved in these programs with federal-provincial cost-sharing agreements for legal-aid services in criminal law, a matter within federal constitutional responsibility. These cost-sharing agreements significantly affected the uniform development of provincial legal aid plans because they specified both minimum standards of services to be provided and financial eligibility requirements for clients.

By contrast, federal funding has been less available for legal-aid services in noncriminal cases, and provincial programs usually provide only restricted services or none at all. Notwithstanding the idea of legal aid as a right, provincial legislation creating legal aid programs generally provides for discretion in granting legal aid to clients who are charged with less serious offences, or who must appear in lower courts in family law disputes, or where the client's case is heard in a small claims court or before a tribunal. In addition, the provision of legal advice, the preparation of documents, and negotiation on behalf of a client are all usually discretionary matters under legal aid legislation.

Financial Eligibility

The cost-sharing agreements have required provinces to administer a flexible means test to determine whether a client can retain a lawyer. Provincial programs generally require an examination of income, disposable assets, indebtedness, maintenance obligations, etc, to determine eligibility. There is some variation from province to province in the application of financial eligibility guidelines. Clients may sometimes be asked to make a contribution to or to repay legal-aid expenses.

Salaried or Fee-for-Service Lawyers?

The development of publicly funded legal aid services in Canada coincided with the expansion of legal aid elsewhere and with the adoption of international commitments to legal aid as expressed, for example, in the International Covenant on Civil and Political Rights adopted by the UN General Assembly in 1966. Yet even with broad agreement on the basic objectives of legal-aid services, considerable diversity occurred in their implementation.

The US pattern of salaried public defenders in storefront offices contrasted with the delivery model adopted initially in England, where solicitors in private practice provided legal aid to clients and received reimbursement from government. From the inception of modern legal aid programs in Canada, the issue of the appropriate delivery model - salaried lawyers or private practice lawyers paid on a fee-for-service basis - has been controversial. Several provinces, including Saskatchewan, Manitoba, Québec and Nova Scotia, initially opted for salaried lawyers in storefront locations, while Alberta and New Brunswick adopted the fee-for-service model. BC developed a more mixed delivery model, using a combination of salaried lawyers and paralegal workers in storefront clinics, as well as fee-for-service lawyers. The mixed delivery model also developed in Ontario, where the early fee-for-service model was augmented after 1976 to include a province-wide network of independent community clinics staffed both by lawyers and paralegal workers. Clinics in Ontario provide complementary legal aid services, particularly for those legal problems excluded from entitlement under the fee-for-service program (tenant problems, welfare, workers' compensation, immigration).

By 1980 most provincial legal aid programs were based, in varying degrees, on this "mixed delivery" model. In addition, many provinces had adopted duty counsel arrangements in courts, and, in the North a duty counsel regularly travelled on circuit. Many programs had experimented, often quite successfully, with legal education projects and with arrangements designed to create better access to the law for poor clients. Such projects often used the expertise of paralegal or community legal workers and sometimes resulted in successful legal actions on behalf of groups of poor people.

Costs, Control and the Charter

By 1980 the strength of the Canadian legal aid system lay in the combination of its diversity and the maintenance of minimum standards that were effected by the federal cost-sharing agreements. In the past decade, however, all legal aid programs have been subjected to measures of fiscal restraint, and there is a lack of consensus currently about priorities and policies for legal aid services. Thus, the issue of access to justice through independent legal aid services in Canada remains a major challenge. In the context of guarantees in the CANADIAN CHARTER OF RIGHTS AND FREEDOMS, guarantees of "equality before and under the law," "equal protection" and "equal benefit," as well as "the right to retain counsel," the challenge is to ensure that legal-aid services implement these guarantees effectively in practice.