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Backgrounder: Legal Aid and Access to Justice

The Alberta Crisis


In February 2014, the board removed flexibility for financial eligibility guidelines (FEG) appeals
and now can now only review if theres a provable miscalculation.
This has resulted in many of the most vulnerable Albertans being denied legal aid, including
those recipients of Assured Income for the Severely Handicapped (AISH).
In turn, courts are making more and more orders for government appointed lawyers for
individuals that have been denied legal aid. Previously, courts in Alberta would only make a
handful of Rowbotham applications per year. (See below for discussion on the constitutional
right to legal aid.)
Since February, when Legal Aid had to start strictly enforcing the FEGS, there have been 43 such
orders. In all of 2013, there were only two.
1

In July 2014, Legal Aid Alberta announced that they would be cutting drop-in services from most
Alberta communities, a move which is expected to save $4 million over three years. 35 jobs
were cut in regional offices and 12 jobs cut in Calgary.
2

Legal Aid Alberta needs at least another $8 million per year. It has predicted a $15 million dollar
deficit by 2016-2017.
Dan Ritter and Denise Lightning have stepped down from the Board of Directors over the past
three months because of underfunding.

Funding

Legal Aid is funded partially through the provincial government, the federal government and
through the Alberta Law Foundation (ALF) from 25% of interest derived from lawyers trust
accounts.
Because of low interest rates, ALF has seen a significant drop in their funds. In September 2011,
ALF agreed to fund Legal Aid over their obligation of 25%. They agreed to fund at an amount of
at least $5.5 million for three years. This was extended in March 2013 to make payments of at
least $6 million for two years.
3

1
http://www.edmontonjournal.com/Province+Legal+Alberta+court+ordered+counsel/10141683/story.html
2
http://www.cbc.ca/news/canada/edmonton/legal-aid-closing-northern-alberta-offices-cutting-jobs-in-calgary-
1.2706885
3
ALF Annual Report 2013 page 10
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The provincial government has not increased its funding since 2011. They made a one-time
payment of $7 million last year as part of a budget surplus, but have made no commitments for
stable funding increases going forward.
Meanwhile, Legal Aid Alberta reports of jump of about 33,000 applications for legal services in
that same time period.
For 2011-12, Alberta was the third lowest province in terms of per capita provincial spending on
legal aid at $4.48/per person below the national average.
4

For 2011-12, Alberta also contributed the least in terms of total share of legal aid revenues.
(85% in Alberta, over 95% in most provinces, 92% on national average.)
5

From 2001 to 2010, the FEGs for legal aid in Alberta only increased by 6% for an individual while
CPI increased by 27%. In 2010, FEGs for an individual in Alberta were 21.6% below the low
income cut off and those for a family of seven or more were 28.1% below the low income cut
off.
6


Consequences

The number of self-represented litigants is not tracked in Alberta, but self-represented matters
in Court of Queens Bench increased from 12 per cent to 27 per cent from 2006 to 2012.
7

Deputy Minister of Justice Ray Bodnarek admitted at a Public Accounts committee meeting on
March 6, 2013 that self-represented litigants are slowing the system down.
8

Associate Deputy Minister for Court Services, Lynn Varty, in response to Rachel Notley: I think
there is some merit in tracking self-represented litigants through the system, just the numbers,
in addition to how we support them... I think it would be a good metric.
9

Court of Queens Bench Chief Justice, Neil Wittmann:
o Fewer affordable lawyers leads to more self-representation. Nearly half the cases in
family court involve at least one self-represented individual, causing delays, increased
costs and less satisfactory outcomes.
o Theres certainly connectivity between the legal aid issue and self-representation. That
affects our whole system. Its a systemic problem that gives rise to more and more time
being spent on the cases where there isnt legal representation for all parties.
10

4
Statistics Canada Catalogue no. 85F0015X Tables 1-2
5
Ibid Table 10
6
Department of Justice Canada Legal Aid Program Evaluation Final Report January 2012.
7
Hansard FC-151 April 8, 2013
8
Hansard, PA-109 March 6, 2013
9
Ibid page 115.
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Case Law Supporting a Right to Legal Aid
R. v. Rowbotham (1988 CanLII 147 (ONCA)) is the leading case in Canada. It confirms that there
will be circumstances where, in order to protect someones section 7 right (the right to life,
liberty and security of the person and the right not to be deprived thereof except in accordance
with the principles of fundamental justice) and section 11(d) right (fair trial: (d) to be
presumed innocent until proven guilty according to law in a fair and public hearing by an
independent and impartial tribunal), it will be necessary for him or her to have a legal aid or
government funded lawyer.
That basic principle has been developed further. From R. v. Rushlow [2009] ONCA 461: The
judge should consider: the seriousness of the charges, the length and complexity of the
proceedings and the applicants ability to participate effectively and defend their case at trial.
In a civil case, New Brunswick (Minister of Health and Community Services) v. G.(J.), the SCC
recognized that there was a right to legal aid based on section 7 of the Charter for a woman in
custody hearings for her children. The SCC considered the complexity of the proceedings, the
appellants capacities, and the seriousness of the interests at stake.
Access to justice also engages section 15 of the Charter the right to equality.
Since as far back as 1993, the Canadian Bar Association has included the right to legal aid and
access to justice in their policy, including a Charter of Public Legal Services, urging governments
to respect these rights and to provide adequate funding to legal aid services.
11

The Chief Justice of the Supreme Court of Canada, Beverley McLachlin, has said that access to
justice is a basic right.
12

o But as Canadians celebrated the new millennium, it became clear that we were
increasingly failing in our responsibility to provide a justice system that was accessible,
responsive and citizen-focused. Reports told us that cost, delays, long trials, complex
procedures and other barriers were making it impossible for more and more Canadians
to exercise their legal rights.
13

In 2008, the Chief Justice of the Supreme Court of British Columbia made similar comments and
reiterated the duty of provincial governments to fund legal aid programs in order to uphold
these rights. For these disadvantaged British Columbians we have a duty to provide adequate
10

http://www.edmontonjournal.com/Criminal+lawyers+action+probable+given+legal+shortfalls/10043359/story.ht
ml
11
https://www.cba.org/cba/Advocacy/pdf/93-11-A.pdf
12
http://www.thestar.com/news/canada/2007/08/12/access_to_justice_a_basic_right.html
13
http://www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf
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levels of civil legal aid. Most would agree this is a moral obligation; the Supreme Court of
Canada has ruled that civil legal aid in certain circumstances is also a constitutional obligation.
Clearly governments must now recognize this and ensure that civil as well as criminal legal aid is
available in appropriate cases to the poor and the disadvantaged.
14

Our system of democracy and constitutional government fundamentally relies upon the
integrity of the rule of law. The rule of law necessarily requires that every person, regardless of
wealth or circumstance, be entitled to justice in a court of law. Part of the substantive
enjoyment of every right is that one is able to enforce it through the courts.
15

Former Chief Justice of Canada Dickson agrees: How can the courts independently maintain the
rule of law and effectively discharge the duties imposed by the Charter if court access is
hindered, impeded or denied? The Charter protections would become illusory, the entire
Charter undermined.
16


The Importance of Legal Aid and Access to Justice
Unfortunately, there is a dearth of research on legal aid and access to justice in Canada, and in
Alberta in particular. However, we can look at studies that have been done in the United States,
Australia and the United Kingdom for some guidance. These countries have similar common law
legal systems.
The Canadian Bar Association used existing studies in those jurisdictions to estimate that cost
savings of providing legal aid instead of creating more unrepresented litigants in Canada could
vary between $1.60 to $30 for every $1 spent.
17

Around one third of Canadians will experience at least one legal problem in a given three year
period.
18

In British Columbia, the Legal Services Society (BCs legal aid provider) found that 83% of BC
residents with incomes under $50,000 (1.5 million people) are likely to have a civil legal problem
14
http://www2.canada.com/vancouversun/features/civilsociety/story.html?id=b193a832-5b2d-4ad6-bab1-
b50d91472c5b
15
Melinda Buckley Searching for the Constitutional Core of Access to Justice(2008), 42 S.C.L.R. (2d) 572.
16
BCGEU v. British Columbia (Attorney General), [1988] S.C.J. No. 76.
17
Sharon Matthews, Making the case for the economic value of legal aid: briefing note, Canadian Bar Association
(CBA), British Columbia Branch, 2011. (www.lss.bc.ca/elan/Oct_11Attachments/ 2011-10-
13EconomicValueOfLegalAidBriefing Note.pdf)
18
http://www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf
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within a three year period. Only about 11% retain a lawyer. 44% dealt with the problem
themselves or left it unresolved. 22% sough non-legal assistance (most often, their union).
19

In 2009, the average cost of a contested divorce in Canada was estimated at $12,562 and the
average cost of a two day civil trial was about $29,436.
20

The Legal Services Commission in England and Wales has recommended that when government
policies might result in an increased need for legal aid services, there should be an
accompanying increase to legal aid funding.
21


Return on Investment
Unpublished data from the BC Supreme Court shows that when one or both parties are
represented in civil law matters, the case goes to full trial 17% of the time. Compared to 8% of
the time when both parties are represented. Similarly, 17% settle before trial with self-
represented litigants, versus 35% when both parties have counsel.
22


In the United Kingdom:
o Researchers found that the social return on investment for debt and housing cases came
to over 9.00 for every 1 invested.
23

o The Citizen Advice Bureau estimated that for every 1 of legal aid spent:
on housing advice, the state saves up to 2.34;
on debt advice, the state saves up to 2.98;
on benefits advice, the state saves up to 8.80; and
on employment advice, the state saves up to 7.13.
24

o In 2014, the Citizen Advice Bureau in Bath and North East Somerset also estimated that
there was a social return on investment ratio of about 1:33 to 1:50 over a five year
period. This means that for every 1 spent on legal advice, there was a benefit to other
stakeholders (including the state) of 33 to 50.
25

19

https://www.policyalternatives.ca/sites/default/files/uploads/publications/BC%20Office/2010/11/CCPA_Legal_Aid
_web.pdf
20
Canadian Lawyers Magazine.
21
Melinda Buckley, Canadian Bar Association, Moving Forward on Legal Aid, June 2010.
22
Supra note 12.
23
Outcomes in advice, NEF and AdviceUK, 2010, page 12.
(www.infohub.moneyadvicetrust.org/content_files/files/bold_outcomes_advice_final.pdf)
24
Towards a business case for legal aid. Paper to the Legal Services Research Centres eighth international research
conference, Citizens Advice, 2010. (www.citizensadvice.org.uk/towards_a_business_case_for_legal_aid.pdf)
25
Michelle Farr, Peter Cressey, Susan Milner, Nick Abercrombie and Beth Jaynes, Proving the value of advice: a
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o Law Centres are independent, not-for-profit centres that offer free legal advice and
representation. In 2013, they estimate that for every 1 invested, a 6 socio-economic
value was generated, for example, by preventing eviction.
26


In the United States:
o In Nebraska, a 2007 study estimated that the total benefit to the state created by legal
aid was USD$13.5 million as compared to a costs of only $3.4 million. These benefits
include benefits awarded to litigants (child and spousal support, for example) as well as
benefits and costs savings to improved quality of life, tax savings and increased
economic opportunity.
27

o In Texas, for every USD$1 spent on legal aid, there was:
$7.42 in annual gains to the economy through total spending;
a $3.56 gain in output (gross product); and
a $2.20 increase in personal income.
28

o In New York, a 2010 study suggested annual cost savings of USD$100 million as a result
of expanding civil legal aid. In other words, a return of USD$5 for every $1 spent on legal
aid.
29


In Australia, PricewaterhouseCoopers estimated that providing legal aid in family law matters
resulted in a net positive benefit to the justice system of about AUS$1.60 to $2.25 for every
dollar spent.
30


Social Costs of Inadequate Access to Justice
study of the impact of Citizens Advice Bureau services, South West Forum, University of Bath, 2014.
(http://southwestforum.org.uk/advice-study)
26
The socio-economic value of Law Centres, NEF, 2008. (www.lawforlife.org.uk/wp-
content/uploads/2013/05/nefsocio-economic-benefits-of-law-centres-129.pdf)
27
Rod Feelhaver and Jerome A Deichert, The economic impact of legal aid in Nebraska 2007, Center for Public
Affairs Research, University of Nebraska, 2008.
28
The impact of legal aid services on economic activity in Texas: an analysis of current efforts and expansion
potential, The Perryman Group, 2009. (www.texasatj.org/files/file/Perryman%20Report.pdf)
29
The task force to expand access to civil legal services in New York: report to the Chief Judge of the State of New
York, Task Force to Expand Access to Civil Legal Services in New York, 2010.
30
www.legalaidact.org.au/pdf/economic_value_of_legalaid.pdf
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Legal problems are commonplace and every day. However, they bear large social and economic
costs. Legal problems also multiply and compound the social problems that sometimes leads to
their creation in the first place.
Legal problems often cause or aggravate others (for example, domestic violence leading to child
custody or housing issues).
31

40% of people with one or more legal problems report having other social or health problems
that are directly attributable to their legal problem.
32

Unresolved legal problems lead to social exclusion which can increase dependency on
government assistance.
33

A UK study estimates that the cost of unresolved social welfare issues per year to be 1 billion
for those aged 16 to 24. Those include health issues, social and emotional wellbeing, education,
employment, housing, standard of living, safety from harm and vulnerability to youth
offending.
34

UK studies have also shown that legal conflicts are more likely to afflict vulnerable people,
compounding social problems and costs. 27.7% of respondents had a stress-related illness as a
result of their civil legal problem (domestic violence, mental health, homelessness, child care
and custody). 14.2% experienced physical illness, with vast majority seeking care through the
health system.
35

A 2011 UK study shows that, by improving financial wellbeing, legal advice can generate a range
of beneficial outcomes for clients, including maintaining stable relationships, preventing
homelessness, maintaining employment, preventing mental illness and avoiding criminality and
interactions with the courts.
36

Those have received debt advice have reported improvements to stress levels and increased
confidence.
37

There are also costs that result from unaddressed legal problems or the inability to access legal
assistance which are more difficult to measure. These include effects of precarious housing such
as lower educational attainment of children living in temporary accommodation or those who
31
Pascoe Pleasance et al., Causes of Action: Civil Law and Social Justice. Norwich Legal Services Commission, 2004.
32
Pascoe Pleasance et al., Multiple Justiciable Problems: Common Clusters and their Social Demographic
Indicators (2004) 1 J. Emp. Legal Stud. 301.
33
Ab Currie, The Legal Problems of Everyday Life: The Nature, Extent and Consequences of Justiciable Problems
Experienced by Canadians, Department of Justice Canada, 2007.
34
www.baring foundation.org.uk/YouthAccessValue.pdf
35
http://www.justice.gov.uk/downloads/publications/research-and-analysis/lsrc/2011/civil-justice-wave1-
report.pdf
36
Funding debt advice in the UK a proposed model, London Economics, Money Advice Service, 2011.
(https://www.moneyadviceservice.org.uk/files/research_jan12_debt_advice_model.pdf)
37
www.justice.gov.uk/ downloads/publications/research-
andanalysis/lsrc/2010/unmanageable_debt_and_financial_difficulty_in_the_civil_and_social_justice_survey.pdf
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switch schools frequently, poorer labour market outcomes for adults and the psychological
impacts on the household which can lead to increased costs to benefits claims and the
healthcare system.
38

Furthermore, studies confirm that early intervention into legal issues result in better outcomes
for all parties.
39

38
Emma Ahmed, Catherine Davie, Nicola Hughes and Daniel Lindsay, Results and recommendations:
outcomes of advice for struggling homeowners, Shelter, 2010 and Welfare benefits advice through general
practices. A business case, London Health Inequalities Network, 2013.
39
www.affinity sutton.com/media/378108/does-debt-advicepay.pdf
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