Justice Committee on Nov. 29th, 2007

[The Chair, Conservative, Art Hanger]

I'd like to call the Standing Committee on Justice and Human Rights to order. We are continuing our review of the supplementary estimates for the fiscal year ending March 31, 2008.

We have before us today Department of Justice officials Donald Piragoff and Barbara Merriam. They will be present for the first hour.

I will turn the floor over to Mr. Piragoff.

[Donald Piragoff, Senior Assistant Deputy Minister, Department of Justice]

Thank you, Mr. Chairman.

Madame Merriam is probably caught up in the security downstairs. She'll be along shortly.

I'll start now, Mr. Chairman, since the committee is ready.

I'd like to start with a brief introductory comment, which will be provided to the committee in bilingual format.

I'd like to try to explain how legal aid is funded through the budget system. As you know, it's quite complex. One has to look at both the main estimates and the supplementary estimates to understand. Before we get into questions, I thought it might be useful to at least try to explain the funding. I know in the past we've often been confused as to exactly what the total numbers are and what the numbers represent.

[The Chair, Conservative, Art Hanger]

Will there be a written presentation too, in reference to how this is all--

[Donald Piragoff]

Yes. There's a written document. It's probably on its way from security right now. I hope it will be distributed during the course of my remarks. If not, it will be distributed during the session.

[The Chair, Conservative, Art Hanger]

Thank you.

Madame Merriam is here now, so we have a full contingent of witnesses.

[Donald Piragoff]

Members of the Justice Committee, it is my pleasure to appear before you to answer questions regarding funding of Legal Aid.

Joining me today is Barbara Merriam, acting Director General, Programs Branch from the department. Ms. Merriam has direct responsibility for a series of funding programs and policy initiatives including Legal Aid.

Mr. Chairman, I would now like to speak to you about the federal government’s role in funding Legal Aid.

In Canada, legal aid is a shared responsibility between the federal government—under its authority in matters of criminal law—and the provincial governments—under their authority for the administration of justice and for property and civil rights.

The Canadian model is that the provinces deliver legal aid services and the federal government contributes to the costs with the provinces and territories. Legal aid is delivered by thirteen legal aid plans, one in each province and territory, created under the statutory authority of the province or territory.

For the past 35 years, the federal government has been contributing to the costs of criminal legal aid through contribution agreements with the provinces and territories. Contributions to the provinces support legal aid in matters of criminal law, youth criminal justice and, since 2001, immigration and refugee matters in six provinces, that is Alberta, Quebec, Manitoba, British Columbia, Ontario and Newfoundland and Labrador. In the territories, the federal government contributes to both criminal and civil legal aid through Access to Justice Service agreements.

Last year, in 2006-07, the federal contribution for criminal legal aid to the provinces and both criminal and civil legal aid for the territories totalled $112,385,463, or $112.38 million. The document that will be distributed has an actual breakdown of that distribution per province and territory. I won't read that.

For the current fiscal year, the department has requested $81.9 million in main estimates, and it is now requesting $44.31 million in the supplementary estimates. These resources will allow for the maintenance of the existing federal contributions toward the cost of providing legal aid.

For the past six years, increased funding to the provinces and territories has been provided only on an interim basis, over and above the $81.9 million already provided in the department's reference levels. Budget 2007 provides for the stabilization of resources for criminal aid at 2006-07 funding levels.

In absolute terms, the funding for legal aid has remained unchanged. However, there is an important distinction to be drawn when comparing previous years' funding to this year's funding, namely the stabilization of a portion of the funding in the amount of $30 million that was about to sunset in March 2007. More specifically, budget 2007 allows for the interim legal aid resources to be renewed, with $30 million of the $44.31 million being added to the existing departmental base of $81.9 million, thereby increasing, permanently, the legal aid base to $101.9 million from the previous permanent level of $81.9 million. The remaining resources of $14.315 million will be continued on an annual basis for five years.

In order to get a complete picture of the funding situation for Legal Aid, we must consider both the Main Estimates and the Supplementary Estimates for 2007-2008. The funding levels shown in the 2007-2008 Main Estimates represent funding in support of legal aid at $81.913 million. The funding levels shown in the 2007 Supplementary Estimates represent $43.150 million and $1.165 million in Vote 1 in support of legal aid.

Accordingly, the total vote 5 funding for legal aid for 2007-08 is $125.063 million. In the material I'll provide, there's a breakdown as to how much is in supplementary estimates, how much is for main estimates, how much goes to the provinces and territories, how much goes to legal aid for immigration refugees, and how much goes to court ordered counsels.

Essentially, $111.9 million base funding will now be available for the provinces, plus the $30 million from the supplementary estimates. There is $11.5 million available for immigration and refugee legal aid, which is identified in the supplementary estimates; and $1.65 million is for court ordered counsel in federal prosecutions. That's also identified in the supplementary estimates. That's vote 5.

The total vote 1 funding for legal aid for 2007-08 is $1.163 million, and that's also identified in the supplementary estimates.

By stabilizing funding, this approach will provide predictable funding that will permit jurisdictions to develop long-term strategies to support the delivery for criminal legal aid in the provinces and for both criminal and civil legal aid in the territories.

It should be noted that while Budget 2007 provided for stabilization of the criminal legal aid base, provinces and territories continue to seek further federal funding for criminal legal aid. The department remains committed to working closely with our provincial and territorial counterparts to explore suitable funding options for legal aid funding under the auspices of the Federal-Provincial-Territorial Permanent Working Group on Legal Aid.

Mr. Chairman, now that I've briefly described the program, and I've tried to clarify the numbers and not confuse you more, we'd be pleased to answer any questions the committee may have.

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you.

I know there are some questions. Just as a point of clarification for myself and maybe for the committee, we have $81.9 million in general funding, the supplements are another $44.3 million, and what about the $30 million? Is that additional?

[Donald Piragoff]

The $30 million is included in the $44.3 million. There's $81.9 million in the main estimates, and that is already in the department's A-base or reference level.

The $44.31 million that is in the supplements is being asked for in addition to the $81.9 million; $30 million of that will be added to the existing permanent $81.9 million, to bring that up to $111.9 million. Then there will still be $14.315 million, which will continue to be funded on an annual basis, so that will probably continue to be sought in the supplementals.

[The Chair, Conservative, Art Hanger]

So the supplements are a 50% increase over the main estimates?

[Donald Piragoff]

I haven't done the calculations, but close--

[The Chair, Conservative, Art Hanger]

It's close. Why such an increase?

[Donald Piragoff]

For six years that was interim funding provided to the provinces and territories on an annual basis. The government decided to make that interim amount permanent, in order to stabilize the funding, because from year to year they were never sure that interim money was permanent. Now it's clearly permanent. There's clearly $111 million in permanent money in our department's A-base that's available for the provinces and territories.

[The Chair, Conservative, Art Hanger]

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you, Mr. President.

Thank you for your presentation.

You said the provinces and territories were asking for more money, and I think you can rest assured the Liberals would be happy if there was more money in the legal aid system from all parties involved.

I don't want to get into all that detail, so I'm glad you've moved into the permanent reference levels. That's great. I just want to get into broad figures without the exact numbers. Basically, from what I understand in the totals, there was roughly just over $112 million last year. When you add everything together--in vote 5 at least--there's $125 million this year. Is that roughly right?

[Donald Piragoff]

It's the same this year as last year.

[Larry Bagnell, Liberal, Yukon, YT]

Last year it was $112 million and this year it's $125 million, is it not?

[Donald Piragoff]

I'll ask Ms. Merriam to explain that.

[Barbara Merriam, Acting Director General, Department of Justice]

Last year was a total of $125 million, so the actual amount or total hasn't changed. The only change that's significant is the $30 million of what's in supplementary estimates that has been added now to the base.

[Larry Bagnell, Liberal, Yukon, YT]

Right, okay. So the total available was roughly the same each year.

We in the justice committee have just added a whole bunch of bills with the intent of having more cases and difficult cases, more people before the courts, etc., and therefore more legal aid if we follow the objectives of the government. If they are successful--and some of those laws have passed--what provisions have been made for asking for more money for that obvious increased demand?

[Donald Piragoff]

The federal government, in particular the Department of Justice, has been in consultation with the provinces and territories through the permanent working group I mentioned.

Federal, provincial, and territorial ministers of justice discussed this issue both last year and this year. They have agreed to continue to examine the costs, including the costs as the result of new legislation, and that the provinces would submit those to the federal government before the halfway mark of the current five-year period of this budget announcement to consider whether there should be any change in the allocation.

The short answer is that there is an exercise, right now, between the Department of Justice and the provincial and territorial governments to calculate the cumulative impact of new reforms on the criminal justice system. That includes legal aid, police costs, all those kinds of costs. With respect to legal aid, the intention is that this would be brought to the attention of the federal government before the halfway mark so that the whole structure of legal aid could be reconsidered.

[Larry Bagnell, Liberal, Yukon, YT]

We get a lot of requests that legal aid is not as broad or deep or as well funded as it should be. Does the Department of Justice get those types of requests? What are the reactions to those requests?

[Donald Piragoff]

We have to work within the confines of the budget. We do hear from the provinces that they would like more money. That's why we're working with them to assess their needs, in particular the needs they have indicated might arise from the enactment of new legislation.

I want to be clear that the provinces have not told us not to enact the legislation. Some of the legislation has measures they have asked for. However, they have said we will work out the costs as we go along.

[Larry Bagnell, Liberal, Yukon, YT]

I'm going to give Derek the rest of my time.

[The Chair, Conservative, Art Hanger]

Mr. Lee.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Thank you, Mr. Chairman.

Sometimes this kind of work is about as exciting as chewing on the bark of a tree. I appreciate that the officials have gone the extra mile to help us chew on the bark.

I recall that in Ontario recently there was some public controversy over the size of one particular legal aid bill in a public trial. That occurred partly as a result of the trial judge ordering that the person shall have legal aid, shall have a court-paid or province-paid lawyer. That was a murder charge trial. In those scenarios we have this potential unanticipated explosion in legal aid expenditures. I'm sure the judge didn't take the time to think about whether it was in the budget or not.

Who picks up the tab for that type of judicial decision? Is it the province, or is it shared with the federal government? Is there any discussion of modalities between the feds and the provinces, to try to manage what I'll call that one-off judicial explosion, which in that case, from my recollection, produced a legal aid bill that was over $1 million? It might have been $2 million.