Evidence of meeting #39 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was services.
A recording is available from Parliament.
Director General, Programs Branch, Policy Sector, Department of Justice
As stated earlier, the Department of Finance funds the civil system through the Canada social transfer, so we're not involved in those discussions.
Conservative
Ted Falk Conservative Provencher, MB
Okay.
Do you track at all the percentage of success rates for your legal aid lawyers?
Director, Legal Aid Directorate, Programs Branch, Policy Sector, Department of Justice
The legal aid plans themselves track it. This is not something that we track. We provide contributions to provinces and territories for access to legal aid services.
Conservative
Ted Falk Conservative Provencher, MB
Okay, and that would lead into my next question about transparency and accountability for the funds that we transfer to them. We want to put our money behind a winning horse; that is what I'm saying here. Do we know whether we have people who are doing the job that we're expecting of them, who are winning the cases they're representing? Is that something that we track? I think we should be concerned about it.
Senior Assistant Deputy Minister, Policy Sector, Department of Justice
This is the justice system. There are no winners or losers. How can you measure the fact that a lawyer wins a case or loses a case in terms of whether the client had proper legal services? The person may have been rightfully guilty, but the lawyer ensured that they were guilty of what they were convicted of and not of what they were originally charged. They could have been charged with murder and in fact the jury comes back with a verdict of manslaughter, and maybe that's exactly what they....
Is that a win or is that a loss? It's a loss for the police because the police said it was first-degree murder. The jury came back saying manslaughter. That's the justice. You can't say that. Winning and losing is not language of the justice system. Legal aid is there to ensure people have a fair trial, and the outcome is part of the fair trial process. Convictions do not make the system more just. Acquittal does not mean the system is more just, and we don't fund legal aid on the basis that by funding legal aid you'll have more acquittals or you'll have more convictions. We're there to ensure that the trial is fair.
The outcome of the trial is for the jury or the judge to decide. We just want to make sure Canadians get a fair trial. That's their constitutional right. They don't have a constitutional right to an outcome. They have a constitutional right to a fair trial.
Conservative
Ted Falk Conservative Provencher, MB
You know, Mr. Piragoff, I can appreciate everything you said and I don't disagree with it. But certainly when you go into a situation where you're going to represent a client, at the outset of it, I would hope you've established some objectives based on the information you have as to what you would like to achieve out of a trial in defending a particular individual. I'm wondering whether individuals are achieving the objectives they set out at the start of a trial or whether they're not. I mean, I understand it's a judge and a jury and they're unpredictable. I get all that, but certainly there's also some merit in the defence that we're providing for individuals.
Director, Legal Aid Directorate, Programs Branch, Policy Sector, Department of Justice
You've touched on a very important discussion here. This is a discussion that we had for several days in Vancouver last week actually, and that is the outcomes discussion. What are the best indicators of whether legal aid is meeting its goals of providing access to justice to the population that requires it?
There are legal aid plans that, in fact, do client satisfaction surveys of criminal legal aid clients to see if they are happy with the representation they received. They measure their success in that way. Not all legal aid plans are on board with that. It is a discussion we are having with all of them.
There are, of course, other indicators that we need to look at, such as the percentage of applicants who actually obtain legal aid, the efficiencies of the court processes that are assisted by legal aid, and so forth.
Conservative
Ted Falk Conservative Provencher, MB
I would encourage you in that. I think there's merit in that process.
Thank you, Mr. Chairman.
December 8th, 2016 / 12:05 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
Thanks very much, Mr. Chair. Thank you all for being here today.
I just want to say at the outset that in my experience practising law in Nova Scotia, sometimes there's a perception that lawyers who work for legal aid are not as qualified or as good as some in the private bar. I just want to dispel that myth, because the lawyers whom I've worked with in Nova Scotia Legal Aid are excellent lawyers, and I think it's important for the public to understand that and know that. They do an excellent job with the caseloads that they have to deal with every day.
With regard to the civil legal aid that you mentioned and the funding through the block transfer of the Canada social transfer to the provinces, is there a designated amount that is set out for civil legal aid?
Director, Legal Aid Directorate, Programs Branch, Policy Sector, Department of Justice
There is no amount that is set aside for legal aid. The nature of the Canada social transfer is such that it is block funding for a series of social services that are provided. It is up to the jurisdictions to define how much they set aside for civil legal aid.
Director, Legal Aid Directorate, Programs Branch, Policy Sector, Department of Justice
It's a $13.3-billion transfer.
Liberal
Colin Fraser Liberal West Nova, NS
I understand that, but we don't know how much of that is designated.
Director General, Programs Branch, Policy Sector, Department of Justice
When they took the Canada assistance plan and transferred it into the Canada health and social transfer, and then it came into the Canada social transfer, it was very difficult to determine how much money was set aside for different elements in that transfer. Again, it's up to the provinces to determine how they would spend that money.
Liberal
Colin Fraser Liberal West Nova, NS
Exactly, okay.
With regard to civil legal aid, do you know if any of the provinces are encouraging or supporting mediation-type services? I'm thinking most particularly of services for family matters where sometimes the best course isn't to appear before a judge and have a judge make a determination about what kinds of family arrangements should be made. Do you know if there are any mediation services that are being done through legal aid?
Director General, Programs Branch, Policy Sector, Department of Justice
Yes, there are many different types of alternative dispute resolution that the provinces are trying in an attempt to bring as many people out of the court system as possible. Different plans would have different types of services, depending on the needs of their populations.
Liberal
Colin Fraser Liberal West Nova, NS
All right. We heard a bit about contribution agreements before. One of the main challenges, as I understand it, is that the system works pretty well for those who qualify for full legal services and get legal aid assistance. For those who can afford a lawyer and don't need the system at all, the system works okay for them. Obviously, they can hire the lawyer of choice. It's people in the middle who are often in the hardest spot, where they can't qualify for legal aid services but they can't afford a retainer for private counsel. These contribution agreements, I think, are very important, and I'd like to know if those are being used across the country.
I think you said 7% of the funding to legal aid is from the clients themselves. I'd like to know a bit more about what's being done in order to encourage contribution agreements to be used for those people who fall in the middle.
Director, Legal Aid Directorate, Programs Branch, Policy Sector, Department of Justice
We are setting aside $2 million of federal funding for the next five years for legal aid innovations. That was very much a focus of the legal aid study that was done recently, which Mr. Piragoff referred to. Legal aid plans are very concerned about this, as you can appreciate, and are innovating in different ways to try to reach this population. Some of this is through summary advice, which one does not need to qualify for to get legal aid, through telephone lines and through websites that provide legal information. Some of this is also through expanded duty counsel services. In the territories, there is presumed eligibility. Everybody who comes up on criminal charges there is presumed eligible for legal aid up until a certain point.
Liberal
Colin Fraser Liberal West Nova, NS
On page 6 of the deck that you handed out, I just noticed the federal contribution is pretty much the same as it was in 2004. Other than the federal contribution, the provincial and territorial government contributions have been rising steadily, although maybe they have plateaued a bit recently.
If I'm looking at this correctly, is it fair to say that the provinces are taking on a greater share of the legal aid responsibilities, and if so, can you comment on that?
Director General, Programs Branch, Policy Sector, Department of Justice
Yes. Obviously, our elected officials get to set budget priorities. For the previous 10 years, the federal contribution was set based on the priorities of our elected officials, and the provinces did put in more money. In budget 2016, the federal government has brought more money to the table for legal aid, and $88 million will be brought in over five years, with a $30-million increase at the end of five years.
Liberal
Colin Fraser Liberal West Nova, NS
All right. Thank you.
With recruiting members from the private bar.... When I was in private practice, from time to time I would take on legal aid certificates in Nova Scotia for criminal or family matters. Is it difficult to recruit members from the private bar, given the fact that it's paid at a reduced hourly rate, or is it seen as something that the profession engages in?
Senior Assistant Deputy Minister, Policy Sector, Department of Justice
Different provinces have a different mixture of legal aid clinics, where the legal aid lawyers are actually employed by the province. Other provinces rely more on issuing certificates to members of the private bar, to basically undertake legal aid services. Their private sector lawyers then obtain legal aid certificates. It's hard to answer the question.
Liberal
Colin Fraser Liberal West Nova, NS
I know that. The certificates I would take on would be if there was a conflict in the legal aid office and the legal aid lawyer couldn't do it. What I'm wondering, though, is if there is a problem in encouraging, in those circumstances, members of the private bar to step up. Have you seen any problems?
Senior Assistant Deputy Minister, Policy Sector, Department of Justice
No. Some provinces actually rely a lot more heavily on the private bar than on legal aid clinics. Ontario, for example, relies very heavily on issuing certificates to members of the private bar, as well as having legal aid lawyers, so it's not just when there is a conflict that it goes to the private bar. There is very much a certificate process where you go to the private lawyer first and ask, “Can you represent me?” The lawyer can say, “I will make an application to legal aid for you.”
