This document summarizes the state of legal aid funding in Alberta. It notes that legal aid funding has been cut, resulting in many vulnerable Albertans being denied aid and more self-represented litigants. Legal aid is underfunded by at least $8 million annually and faces a projected $15 million deficit by 2016-2017. There is a constitutional right to legal aid in some cases, but lack of access is burdening the court system and access to justice. More research is needed but studies suggest legal aid saves on costs from additional litigation compared to its costs.
This document summarizes the state of legal aid funding in Alberta. It notes that legal aid funding has been cut, resulting in many vulnerable Albertans being denied aid and more self-represented litigants. Legal aid is underfunded by at least $8 million annually and faces a projected $15 million deficit by 2016-2017. There is a constitutional right to legal aid in some cases, but lack of access is burdening the court system and access to justice. More research is needed but studies suggest legal aid saves on costs from additional litigation compared to its costs.
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Federal NDP Join Call for Access to Justice
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Federal NDP Join Call for Access to Justice (BACKGROUNDER)
This document summarizes the state of legal aid funding in Alberta. It notes that legal aid funding has been cut, resulting in many vulnerable Albertans being denied aid and more self-represented litigants. Legal aid is underfunded by at least $8 million annually and faces a projected $15 million deficit by 2016-2017. There is a constitutional right to legal aid in some cases, but lack of access is burdening the court system and access to justice. More research is needed but studies suggest legal aid saves on costs from additional litigation compared to its costs.
This document summarizes the state of legal aid funding in Alberta. It notes that legal aid funding has been cut, resulting in many vulnerable Albertans being denied aid and more self-represented litigants. Legal aid is underfunded by at least $8 million annually and faces a projected $15 million deficit by 2016-2017. There is a constitutional right to legal aid in some cases, but lack of access is burdening the court system and access to justice. More research is needed but studies suggest legal aid saves on costs from additional litigation compared to its costs.
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
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. Page 2 of 8
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 Page 3 of 8
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 Page 4 of 8
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 Page 5 of 8
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 Page 6 of 8
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 Page 7 of 8
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 Page 8 of 8