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The shrinking number of private-sector lawyers doing legal aid work plunged a further 10 per cent in 2006-2007, according to a recent snapshot of legal aid resources and caseloads across Canada.

Not only did 1,082 fewer private practitioners take legal aid cases across the nation, the number of staff lawyers picking up the slack rose by just 26 lawyers for the entire country, Statistics Canada reveals in its Feb. 5 report.

The federal agency said that there were a total of just 11,079 lawyers (9,857 private-sector and 1,222 staff) who provided legal aid assistance to poor and indigent Canadians in 2006-2007, a 9-per-cent decline from the previous year.

By way of comparison, in 1998-1999 there were a total of 13,464 lawyers who did legal aid work, including 12,456 private-sector barristers.

The flight of the private Bar from legal aid in 2006-2007 occurred in all provinces, especially Ontario and Quebec. The only exception was Alberta, where a grand total of one additional private-sector lawyer took on legal aid work.

Environmental lawyer Elizabeth May, whose Green Party was the only federal party to issue a formal statement about the dismal legal aid situation, called it “an unacceptable drop.” “It’s very disconcerting,” she told The Lawyers Weekly. “We need to make sure that low-income Canadians have adequate access to legal assistance.”

The Green Party’s platform calls for the establishment of “a comprehensive national legal aid plan for civil and legal matters” as well as adequate resources for pro bono clinics. May candidly acknowledges such a policy would be costly if implemented, but argues “it’s much more expensive for our society to write-off low-income Canadians, and build more jails, [which] is where the Harper government is putting its priorities.”

In 2006-2007, total real spending on legal aid decreased to $659 million — an inflation-adjusted drop of four per cent from the previous year, said Statistics Canada. The decline was steepest in Ontario where overall spending fell seven per cent to $326 million, from $352 million the year before.

Across the country, there were also fewer approved legal aid applications for full legal aid service in criminal and civil matters – 472,000 applications among 11 legal aid plans – a downward trend discernible for years as different provinces at different times cut services, and restricted who was eligible for assistance.

The 11 plans received a total of 761,000 applications from would-be clients – a two per cent decline from the year before (Newfoundland and PEI did not provide data).

But Statistics Canada warned that the reduced number of applications did not necessarily reflect reduced demand for legal aid, given that applicants are often screened out before they formally submit an application, and coverage and eligibility requirements restrict the types of eligible cases.

“I don’t think there is any decrease in the need for legal aid,” commented Ottawa criminal lawyer Heather Perkins-McVey, who chairs the Canadian Bar Association’s (CBA) national legal aid liaison committee. “I certainly don’t see a decrease in demand, I see more people who are unrepresented attending at the family law office,” she observed.

Perkins-McVey said the core problem for legal aid remains the same: not enough funding by governments. “Obviously it’s a big concern when you have a decrease in the number of private-sector lawyers prepared to take legal aid,” she remarked. “We have done some surveys – and it appears to be that the reasons are mainly the fact that legal aid just doesn’t pay the overhead costs of running a practice. In addition to that there are some lawyers who would [identify] the bureaucracy of dealing with legal aid, and some of the limitations on their ability to obtain experts [and] have their travel costs and other disbursements paid.”

For civil legal aid, narrow and restrictive coverage is the main problem, while for criminal legal aid cases the challenge is getting on a level playing field with the prosecution, Perkins-McVey explained. “It can be very discouraging if you are a lawyer working, for example, on a... murder case, or a high-profile case, and you have a Crown attorney who has got three or four counsel with him, who has got a fleet of detectives to do investigative work, and you can’t get funding for a private investigator for legal aid.”

She warned that wrongful convictions could result if experienced lawyers continue their exodus from doing legal aid work.
Last year the Ontario government tried to stem the tide by announcing $51 million in new legal aid funding over three years, including a five-per-cent boost in the hourly rates: $77.56 for new lawyers up to $96.95 for those with 10 or more years of experience.
Statistics Canada said funding by provincial governments for legal aid in 2006-2007 totaled $474 million, or about $15 for every person in Canada. This was a two-per-cent increase once inflation was taken into account.

By contrast, the federal government’s $92-million contribution to the provinces and territories for criminal legal aid in each of the past five years has declined, in real terms, including a 2-per-cent drop in 2006-2007, said the Crown agency.

The CBA has lobbied Justice Minister Rob Nicholson to boost the federal funding, including a new chunk for civil legal aid. But Perkins-McVey said there has been little feedback thus far. “I certainly haven’t had any sense whatsoever that they are interested in legal aid, are interested in innovative delivery models, or pilot projects, or ways to improve access to justice,” she said, adding that “if the [Conservative government’s] ‘Tackling Violent Crime’ bill is passed, there is certainly going to be an added level of complexity, as well as a number of new offences that lawyers are going to have to deal with, and it’s very unfortunate that the system is not going to be funded to the extent that it should.”

Nicholson pledged in Winnipeg last November to discuss the issue of federal funding for civil legal aid with Finance Minister Jim Flaherty. He stressed that “support for families is a priority area for the federal government.”

Nicholson’s press secretary Darren Eke told The Lawyers Weekly “over the next five years, the government will contribute $560 million to provinces and territories for criminal legal aid and $57 million for immigration and refugee legal aid.”