Justice Committee on Dec. 8th, 2016

[Ted Falk, Conservative, Provencher, MB]

Thank you, Mr. Nicholson and Mr. Chairman.

My understanding is that the provinces and the territories do the adjudicating or the assessing of individual applicants for legal aid. I didn't pick it up in your presentation, but can you tell me if there is consistency in application of eligibility between the provinces and the territories, or how does that work?

[Donald Piragoff]

That's a good question. Each province and territory has its own eligibility criteria so there is not complete consistency, but I can ask my colleagues to give you more information on that.

[Hana Hruska, Director, Legal Aid Directorate, Programs Branch, Policy Sector, Department of Justice]

I would second what Mr. Piragoff has said. Each province determines its own eligibility guidelines. The guidelines always take into account income. They always take into account the capacity of the person to pay and the scope of coverage provided by the legal aid plans.

As you're likely aware, legal aid plans do not provide coverage for all criminal offences. Generally it has to be somewhat more serious, often potentially resulting in the deprivation of liberty. However, the specific cut-offs for each jurisdiction are different. Some legal aid plans, especially with the additional federal contribution now, are able to provide coverage to persons who are at about the low-income measures, which are considered the poverty measures. Others only begin to provide coverage once an individual is perhaps 20% or 30% below that measure.

[Ted Falk, Conservative, Provencher, MB]

From a federal government perspective, is that contribution always consistent regardless of the variation in provincial and territorial eligibility?

[Donald Piragoff]

There's a formula that's negotiated with the provinces using a number of factors to determine the contribution for each province. The provinces get different amounts. The agreements will last for a number of years and then they will be renegotiated. Again, if you want more information, Hana Hruska can provide that. She actually negotiates the agreements.

[Hana Hruska]

We are right now in the midst of negotiating a new distribution formula for criminal legal aid. The old criminal legal aid distribution formula was based largely on historical factors and we largely distributed many of the monies based on the past contributions of various jurisdictions to their own legal aid plans. Now we are developing a distribution formula that will increasingly take into account demand factors such as demographics of the population in that jurisdiction for the distribution of legal aid monies. For example, we're looking at the percentage of people below the LIM—low-income measure—the percentage of aboriginal population, crime rate, the percentage of males aged 12 to 35.

[The Chair, Liberal, Anthony Housefather]

Next we have Mr. Hussen.

[Ahmed Hussen, Liberal, York South—Weston, ON]

Thank you, Mr. Chair.

Thank you to the panel for coming in today and giving us your presentation.

I have a number of questions but I'll start with a follow-up to the previous question. In your opinion, do all jurisdictions spend the same amount of money per capita on legal aid?

[Hana Hruska]

No, they don't.

[Ahmed Hussen, Liberal, York South—Weston, ON]

If not, is there any action the federal government can take to ensure more uniformity across the country?

[Hana Hruska]

We're having policy discussions with the provinces and territories about the innovations they can take to maximize how the money that is allocated to these legal aid plans can have the maximum impact. In terms of what various jurisdictions choose to spend, that is a matter of their own budgeting process.

[Ahmed Hussen, Liberal, York South—Weston, ON]

Is there also a variance between provinces in their acceptance rates for folks who apply for legal aid?

[Hana Hruska]

Yes, there is a variance in the acceptance rate. We don't have the exact percentages but we could certainly provide that. It also depends on each province's eligibility criteria, of course.

[Ahmed Hussen, Liberal, York South—Weston, ON]

I would actually argue that it's even within provinces. In my experience, within the province of Ontario, what would get covered in the city of Toronto would be different from what would get covered just a little north of metropolitan Toronto. Would you agree with that statement?

[Hana Hruska]

We do not get into that level of detail in our discussions. It is entirely possible.

[Ahmed Hussen, Liberal, York South—Weston, ON]

Doesn't that concern you? If a Canadian can get accepted in one part of the country for an alleged offence and then not get covered by a provincial legal aid program in another province, isn't that a problem of uniformity? Should we as a government have more to say about that and do what we can to ensure uniformity?

I'd like your opinion on that.

[Donald Piragoff]

As I indicated, under our constitutional system, the jurisdiction over criminal law is shared between the federal and provincial governments, where the federal Parliament is responsible for enacting the criminal law and enacting criminal procedure and the provinces are responsible for the administration of justice in the province. That includes policing, prosecution, and providing legal aid services. It's their policy; it's a provincial jurisdiction.

In terms of the federal government trying to promote uniformity, yes, we do. As indicated, the federal contribution doesn't come without strings. We set certain policy guidelines of where we want the money to be used. For example, we want a certain emphasis to be used for vulnerable populations such as indigenous persons or those suffering from mental health or addiction problems. We set policy goals as to how we want the money to be used.

By setting those conditions or policy goals with respect to federal funding, we attempt to influence the provinces in exercising their constitutional decisions with respect to the administration of justice. However, we cannot do it directly because it is their constitutional responsibility to administer justice in the province.

[Ahmed Hussen, Liberal, York South—Weston, ON]

Right, but wouldn't it also help to have more data on the variance among provinces' acceptance rates. That would help in pursuing that policy objective. Correct?

[Elizabeth Hendy]

Yes. As our colleagues from the Canadian Centre for Justice Statistics mentioned earlier, we're trying to get a more robust legal aid survey so we'd have better outcome measures, and we're looking at these types of services. Obviously with the federal budget 2016 investment in innovation, we're hoping the innovation money would be used to provide more equitable services across each jurisdiction. We're assuming innovation would be required mostly for the more rural areas to have better services.

The metropolitan areas as you stated are well served for various reasons in this country, but we're trying to see what we can do with the other areas.

[Hana Hruska]

I think you should also note that over the course of the next five-year contribution agreement, the federal contribution to criminal legal aid will be increasing. It had been at $112 million for a certain period of time. This year it increased by $9 million. Next year, it's increasing by $12 million, and then by $15 million, $20 million, and $32 million over that original amount.

[Ahmed Hussen, Liberal, York South—Weston, ON]

My final question has to do with the low threshold for someone to get coverage. In Ontario, for example, a single person must make less than $12,863 annually for them to benefit from legal aid without being required to make a contribution. That's a very low amount.

If that person doesn't get accepted into the legal aid program, and they're essentially on their own, is there any way, beyond coverage, that they could be helped in terms of education, referrals, or any guidance that they could get in pursuing their legal matters? People who are charged with criminal offences are under great stress and disruption in their lives. How can you help them?

[Hana Hruska]

There are in fact forms of assistance that they may be able to obtain. Generally, duty counsel services are provided to anyone who arrives at a court without representation. You do not need to go through a legal aid application process to obtain duty counsel services. Some jurisdictions also provide expanded duty counsel services where a duty counsel will follow your case throughout.

Legal aid plans are also setting up information lines where people can obtain summary advice without having to go through an application process. Certain web-based portals are being experimented with in different jurisdictions. For example, the Province of British Columbia has set up MyLawBC, which provides pathways for people to follow with different kinds of legal issues. It is completely free and requires no application. It's actually being funded by the Law Foundation of B.C., so it is the lawyers there who are giving back.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Ironically, we go now to our B.C. member, Mr. MacGregor.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you, Mr. Chair.

My question is a bit of a follow-up to the thread that Mr. Hussen was exploring. He was going over the oversight.

You mentioned that with federal funding, when it goes to the provinces, there are some strings attached. You mentioned that you have goals. I'm wondering, when that money is handed over to the provincial administrations to distribute, how does the federal government follow up with the provinces to ensure that money is being spent in the way it was intended?

[Elizabeth Hendy]

To respond to your question, we don't hand the money over. There's a reimbursement.