Okay.
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.
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.
11:40 a.m.
Director General, Programs Branch, Policy Sector, Department of Justice
Through a reporting requirement, the provinces would have to indicate to us what they actually spent the resources on. Then, we would assess their final claims and the reporting requirements, and then we would pay out. Normally, we're not paying out resources until several months into a new fiscal year, because it's on a reimbursement scale.
Also, through the funding formula that my colleague Hana mentioned, we are determining the variables that we see as having the greatest impact on the system. We also can control a bit of the funding from that perspective, in terms of how we weight those variables.
11:40 a.m.
NDP
Alistair MacGregor NDP Cowichan—Malahat—Langford, BC
Okay.
Now, we know that the administration of justice comes under provincial jurisdiction. Just looking at the broader picture and going into the Constitution, when you look at legal aid and you're trying to balance the rights of the individual, their rights to a fair trial, you mentioned it was specifically sections 7, 11, and 15. Then, when you look at the different amounts in different provincial jurisdictions of how you qualify, it appears to me—and this is the danger in any kind of a federation—that you end up with a kind of patchwork quilt.
However, a Canadian is a Canadian is a Canadian. How does the Department of Justice or the federal-provincial-territorial working group balance the charter rights of the individuals with the rights of the provinces to administer the justice system? Has the Supreme Court ever looked at this and provided guidance to the department?
I would like to hear your thoughts on that.
11:40 a.m.
Senior Assistant Deputy Minister, Policy Sector, Department of Justice
Thank you.
It would be very difficult to set a national level for eligibility, for example. The cost of living in Vancouver and the cost of living in Toronto is a lot more expensive than living in other parts of the country. The eligibility rates for provinces have to take into account the cost of living. That's part of the formula. That's why the eligibility levels are determined by the provinces.
Now, whether those levels are sufficiently low or sufficiently high enough is a question that the province has to answer. Of course, all of the provinces have to balance the costs of legal aid with the costs of health care and the costs of roads and the costs of other social services. In the end, they have to make political decisions. Their cabinets make these political decisions every year when they do their budget allocations. It becomes a political decision at the provincial level, as well as a fiscal decision. It's a balance between, on the one hand, serving the needs of Canadians....
That's why I also mentioned that there's the federal court-ordered counsel fund. Those are the situations where, on an application by the accused, if a person does not qualify for legal aid under provincial criteria and the judge in the case is of the view that the matter is serious, that the person is likely to go to jail, and that the person needs legal assistance, the court can order, in federal prosecutions, the federal attorney general to provide legal counsel. If it's a provincial prosecution, they can order the provincial attorney general to provide counsel. Then the attorney general provides funds to reimburse the counsel directly and not through legal aid.
11:45 a.m.
NDP
Alistair MacGregor NDP Cowichan—Malahat—Langford, BC
Okay, thank you.
To your knowledge, has the Supreme Court ever weighed in with a view on this?
11:45 a.m.
Director, Legal Aid Directorate, Programs Branch, Policy Sector, Department of Justice
Yes, in fact, they have.
11:45 a.m.
NDP
Alistair MacGregor NDP Cowichan—Malahat—Langford, BC
Okay, thank you.
Changing tack here, in the House of Commons and the government's plans and priorities, there's been talk about applying gender-based analysis. If you look at the funding levels that go to criminal cases and civil cases, and you look at the fact that women form a higher percentage of the clients for civil cases whereas it might be traditionally higher for men in the criminal cases....
I'm thinking about an abusive relationship, the defence for an abusive spouse versus the defence for someone trying to escape an abusive relationship. Has the department or the federal-provincial-territorial working group conducted that kind of an analysis? If not, are you planning to?
11:45 a.m.
Director General, Programs Branch, Policy Sector, Department of Justice
The case you're describing is civil legal aid, which is covered under the Canada social transfer. While we are aware of the services that legal aid plans would be providing under civil, it's not a policy area that the Department of Justice explores in great detail because it is managed by the Department of Finance under the Canada social transfer.
11:45 a.m.
Liberal
Chris Bittle Liberal St. Catharines, ON
Thank you so much.
The question is for the Department of Justice. Did you have an opportunity to see the recommendations from the Canadian Bar Association with respect to legal aid? Specifically, it recommended that the federal government endorse national benchmarks for public legal aid assistance services and provide a dedicated transfer separate from the social transfer for funding of civic legal aid at levels that will allow for benchmarks for compliance.
11:45 a.m.
Director, Legal Aid Directorate, Programs Branch, Policy Sector, Department of Justice
Yes, we have. In fact, in our federal-provincial-territorial discussions, we are focusing very much on performance measurement. We've just concluded a week's worth of meetings in Vancouver, most of which focused on precisely these topics, and benchmarks is an issue that came up. We are certainly looking at those matters.
11:45 a.m.
Liberal
Chris Bittle Liberal St. Catharines, ON
Is there any sense of how to deal with that since it is a private bar? How we can meet these levels?
11:45 a.m.
Director, Legal Aid Directorate, Programs Branch, Policy Sector, Department of Justice
Performance measurement is a complex topic, and we're looking at various sorts of indicators that could help us track the accessibility and adequacy of criminal legal aid over time. We don't have a specific answer, but we are developing a much more robust performance measurement strategy that will help us get there.
11:50 a.m.
Liberal
Chris Bittle Liberal St. Catharines, ON
Is there any oversight that exists now? We know legal aid is a lower rate than what lawyers would charge a client in their particular practice. Is there anything?
11:50 a.m.
Director, Legal Aid Directorate, Programs Branch, Policy Sector, Department of Justice
Some legal aid plans have been able to increase the tariffs that they pay to lawyers because there have been additional investments both by the federal government and by several jurisdictions.
11:50 a.m.
Liberal
Chris Bittle Liberal St. Catharines, ON
Is there no way to measure whether the increase in the tariff leads to a better service?
11:50 a.m.
Director, Legal Aid Directorate, Programs Branch, Policy Sector, Department of Justice
It depends what you mean by “better service”. Again, it is all part of outcomes measurement. We are working on that, and I believe Statistics Canada, the Canadian centre for justice statistics is a part of that effort.
11:50 a.m.
Director, Canadian Centre for Justice Statistics, Statistics Canada
It's part of the consultation right now in terms of determining what are information needs are regarding that. Having an aggregate survey limits us to a certain extent to the amount of information we can collect because the legal aid survey is not a survey that is collecting information about resources being involved, but rather about cases, in this case, and not necessarily on an individual basis.
We do have other surveys where we do that. However, in the case of surveys pertaining to resources, we don't have the information. Throughout the consultation we'll be able to determine what the indicators are that we're going to be able to produce for the amount of money we're getting to run that survey.
11:50 a.m.
Liberal
Chris Bittle Liberal St. Catharines, ON
Keeping that in mind—and perhaps this next question isn't fair, but I'll ask it anyway. The statistics that we have are a couple of years old, but it seems that about 65% of applicants are successful in receiving legal aid. Do we know what the 35% of applicants who don't receive legal aid look like? Is it the working poor? Who doesn't receive legal aid, and demographically, what do they look like?
11:50 a.m.
Director, Canadian Centre for Justice Statistics, Statistics Canada
Unfortunately, we don't. We know the reasons why they were refused. In the presentation, we stated some numbers about reasons why they were refused. Some are monetary. Some don't qualify. We have the breakdown regarding the rate of acceptances. It's been on average over the 10-year period around 64%. Last year it was 65%.
We can have this information available as well for each province, if that is necessary for the analysis of the committee. Unfortunately, we cannot produce information about the characteristics of the individuals who were refused, and if they were of one socioeconomic status or another. It's not feasible at this point.
11:50 a.m.
Liberal
Chris Bittle Liberal St. Catharines, ON
To take it one step further, do we know the costs to the legal system if we have 35% of people who aren't accepted? Many of those within that will then become self-represented litigants. I was involved in the civil system, and the type of law I practised wasn't funded in any way. I understand the complexities and difficulties of dealing with the self-represented litigant. I hear it from my colleagues who practise criminal law and family law. Do we have any way to measure that?
December 8th, 2016 / 11:50 a.m.
Director, Canadian Centre for Justice Statistics, Statistics Canada
The other source of data we have is another survey, the integrated criminal court survey, from which we have detailed information about each case being processed by the court system. We do ask for jurisdiction to provide legal representation, for example. That would be the closest we could get. Unfortunately, the reporting of legal representation by the clerk in the courthouse is not always being provided and the coverage is not that good, but we're working at it. That is another survey for which we're doing a redesign at this point, and through which we're trying to increase the coverage. Once we have that, we could have some indication as to the time it takes to process these cases in court, whether they're being legally represented by themselves or by a legal aid lawyer or a private lawyer. That would be the only indication that we would be able to have, but at this point it's not feasible.
