Access to Justice and Legal Aid Funding in Alberta and Canada

Introduction

Legal Aid Alberta’s vision statement is “[a]n Alberta where everyone can access justice and achieve fair and lasting resolutions to their legal issues.” Sadly, that vision is far from the reality facing Albertans today.

On April 16, 2018, the Calgary-based Criminal Defence Lawyers Association (CDLA) sent an open letter to Alberta’s Minister of Justice Kathleen Ganley decrying the chronic underfunding of legal aid in Alberta. After promising a revamped legal aid service in 2017, the Government of Alberta chose keep legal aid funding flat, despite the fact that Legal Aid Alberta ran out of money last fiscal year and had to receive emergency funding. In its letter the CDLA called on the Government to increase legal aid spending by 65% over four years. In the interim, the CDLA’s membership will no longer perform the many unpaid tasks which legal aid does not cover.

In 2016, the Supreme Court of Canada released its decision in R v Jordan, case under the Canadian Charter of Rights and Freedoms (Charter) which set a presumptive deadline of 30 months for Alberta Queen’s Bench criminal trials and 18 months for Alberta Provincial Court trials. After the deadline, the accused person’s Charter-protected right to a trial within a reasonable time is presumptively violated. In the wake of Jordan, governments across Canada, including Alberta, have managed to scrounge up additional justice system spending for law enforcement, court staff and prosecutors — but not for legal aid.

The Access to Justice Crisis

Legal aid funding across the country is inadequate, resulting in limited coverage by provincial legal aid societies both in terms of the types of legal problems covered and the low-income thresholds to receive coverage. The chronic underfunding of legal aid has exacerbated the access to justice crisis in Canada. Today, the justice system is inaccessible to all but the richest Canadians. The cost of legal services and lack of legal aid coverage are major factors preventing people from obtaining legal services (see here), resulting in self-representation in court and prolonged unresolved legal problems, costing the public hundreds of millions of dollars (see here). Without accessible legal services, the rule of law, upon which our free and democratic society depends, is being seriously threatened.

Within a given three year period, nearly 50% of the adult population experiences at least one legal problem which is serious or difficult to resolve and only 19% of those who encounter such a problem obtain legal advice (see here and here).

The burden of unmet legal needs falls disproportionately on Canada’s poor and vulnerable populations, who are statistically more likely to encounter legal problems.

For a country that proclaims the rule of law as one of its foundational principles, these statistics — and the reality of the situation — demonstrate a true crisis of access to justice.

Provincial and federal governments do not provide sufficient funding for legal aid. From 2003-2015, the federal contribution to legal aid across Canada’s 13 provinces and territories remained stagnant at $112.4 million annually — while the cost of delivering legal aid services during that time increased substantially (see here).

Legal aid programs cover very few legal problems outside of the criminal law context, and even within that context, they tend to only cover the most serious criminal charges with significant jail time on the line (see here). Further, only those of extremely modest means can obtain legal aid, and most of the people who do not qualify for legal aid cannot afford a lawyer. For example, in Alberta individuals who receive the maximum Assured Income for the Severely Handicapped benefit — $1,588 per month — do not qualify for legal aid (compare the AISH standard benefit with Legal Aid’s eligibility guidelines).

With so many people unable to afford a lawyer, there has been a steady increase in self-representation. The Canadian Bar Association (CBA) estimates that, in the last 20 years, rates of self-represented litigants have increased from 5% to between 10-80% of litigants, depending on the nature of the claim and level of court.

In a CBA survey, judges expressed concerns that self-represented litigants struggle to articulate their case, fail to address the most important issues, and are often overwhelmed by their emotional attachment to the case. A large body of research from the United States suggests that self-represented litigants experience significantly worse outcomes, losing in court more often and more substantially than those who obtain legal assistance (see here and here).

The problem of unmet legal needs affects more than individuals and their families: it exacerbates inequality. People from marginalized or vulnerable groups — such as women, the poor, the disabled, aboriginals, or other racialized minorities — are more likely to experience legal problems and less likely to be able to afford a lawyer (see here). The broader societal cost that comes from unresolved legal problems includes an estimated $450 million in employment insurance claims, $248 million in social assistance, and $101 million in health care costs per year.

Underfunding legal aid imposes a massive cost on the public purse and undercuts the public’s confidence in the justice system, leaving many Canadians to think that the justice system is unfair, inaccessible, and does not reflect them or their needs.

Why Does It Matter That Legal Services Are Unaffordable?

Social costs and policy concerns aside, there is a momentous problem when legal services are unattainable. On a basic level, the fact that self-represented litigants receive worse outcomes in the justice system suggests that some litigants are losing cases they ought not to have lost. In the criminal context this means wrongful convictions, which results in increased demand for facilities, and increased costs for the bureaucracy to operate jails and administer the corrections system

The golden thread running throughout our criminal justice system is the presumption of innocence, premised on the logic that “it is better for ten guilty persons to escape than that one innocent suffer” (See Blackstone’s Commentaries on the Laws of England (1765)). The Charter also protects the right of any person charged with an offence “to be presumed innocent until proven guilty according to law in fair and public hearing”.

But just how real is the presumption of innocence when only the most serious crimes receive legal aid coverage for only the most destitute individuals? How fair is a criminal trial when a person of modest means is made to do battle in our adversarial system of justice against a Crown prosecutor who attended law school and has experience running trials 4 days a week?

Beyond the presumption of innocence, nearly every Charter right is threatened when legal services are inaccessible.

The result of inaccessible legal services is a general diminishment of all civil liberties, as enforcing legal rights is beyond the grasp of all but the richest few in Canada. Who in 2018 could afford to prosecute a constitutional challenge to vindicate their right to freedom of expression or religion or security of the person? Not many. That does not portend well for the rule of law in Canada.

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