Legal Aid in Saskatchewan: An Overview
The Mandate of Legal Aid
The mandate of the Saskatchewan Legal Aid Commission is to provide services to low income persons who need legal assistance. This is based on the recognition that all persons should have equal access to the courts and fair treatment before the law.
In Saskatchewan, people who apply for legal aid services are eligible if:
- They are receiving social assistance; or
- Their income is as low as social assistance levels; or,
- The costs of hiring a private lawyer would be so great that it would reduce their financial resources to social assistance levels.
If the person is financially eligible for legal aid services, the case has to fall within the range of services provided by the Saskatchewan Legal Aid Commission and have professional merit.
The Delivery of Legal Aid
Saskatchewan relies on primarily a salaried staff model for providing legal aid services. There are 139 staff, including 67 lawyers, 20 legal assistants and administrative staff in 14 offices across the province.
In 2001/02, Saskatchewan Legal Aid dealt with 20,677 applications. Saskatchewan has the highest use of staff lawyers than any other province: 93% of the approved legal aid applications were handled by staff. In Manitoba, staff lawyers handled only 22% of approved applications and in Alberta, only 14% of applications were handled by staff lawyers.
Who receives Legal Aid?
- 81% of Legal Aid clients in 2001/02 were on social assistance
- 71% were of Aboriginal descent
- 65% of clients were male
- 35% of clients were female
What is the nature of cases handled by Legal Aid?
- 75 percent of all legal aid cases in Saskatchewan are of criminal matters. By contrast, in Quebec only 40% of cases were of criminal matters and 60% were civil cases.
- 25 percent of all approved cases in Saskatchewan are civil matters, almost exclusively family law matters. In Quebec, 61% of civil cases were family law matters.
- Saskatchewan’s Legal Aid has the highest proportion of its budget on criminal matters than any other province. Saskatchewan spends 63% of its legal aid budget on criminal matters whereas Manitoba spends 43% and Alberta spends 52% of its legal aid budget on criminal matters.
Approval rate of applications for legal aid
- Saskatchewan has the highest approval rate of legal aid applications than any other province or territory (see table 2). Over 93 percent of legal applications are approved in Saskatchewan, compared to only 42.3 percent in Ontario and 75.6 percent in Alberta.
Cost-effectiveness of legal aid in Saskatchewan
- Saskatchewan has the most cost-effective legal aid systems in the country. Only 6% of the legal aid budget is spent on administration, compared to 19% in Manitoba and 10% in Alberta.
- Saskatchewan’s legal aid system handled more applications than Manitoba at a lower per capita cost. In Saskatchewan the per capita cost of Legal Aid was $11.72 compared to $16.99 in Manitoba.
- Saskatchewan handled 20,677 legal aid cases in 2001/02 compared only 17,518 cases in Manitoba. Saskatchewan’s Legal Aid had a total budget of $11.9 million compared to $19.5 million in Manitoba.
- In Saskatchewan, 93% of cases were handled by staff lawyers compared to only 22% in Manitoba.
Table 1 Legal Aid Cases in Saskatchewan, 1997/98 - 2001/02
|Year||Total applications||Total approved||Approval rate||Total approved criminal cases||% of total||Total approved civil cases||% of total|
|Source:||Statistics Canada, Legal Aid in Canada: Resource and Caseload Statistics 2001/02; catalogue no. 85F0015XI. March 2003.|
Table 2 Percentage of Legal Aid applications that are approved, Canadian Provinces and Territories, 2001/02
|Province/territory||Total # Legal Aid applications||Total # approved applications||Approval rate|
|Nfld & Labrador||Not available||Not available||–|
Source: Statistics Canada, Legal Aid in Canada: Resource and Caseload Statistics 2001/02; catalogue no. 85F0015XI. March 2003.
Table 3 Expenditures on Legal Aid, Western Canadian provinces, 2001/02
|Total expenditures (thousands of $)||$11,904||$19,534||$32,438||$89,966|
|Per capita spending||$ 11.72||$16.99||$10.59||$21.96|
|% of total budget on administration||6%||19%||10%||8%|
|% of legal services budget on staff lawyers||90%||46%||18%||36%|
|% of legal services budget on private lawyers||10%||54%||82%||64%|
|Source:||Statistics Canada, Legal Aid in Canada: Resource and Caseload Statistics 2001/02; catalogue no. 85F0015XI. March 2003.|
Why we need Legal Aid!
- Legal aid is essential to democracy
Legal aid is a fundamental part of our justice system in a democratic society. In a democratic society we believe that all people should be able to participate fully in society and have their rights protected. Without legal aid, the disadvantaged people in our society who could not afford a lawyer would not have equal access to or treatment under the law.
Legal aid provides fairness under the justice system
Our justice system is an adversarial system where two roughly equal parties present their cases before a judge in a court of law. The image of justice is the blindfolded woman holding the balance in her hands. But is there fairness in the justice system if there is a power imbalance between the two parties? For low-income people who cannot afford to hire a lawyer, there is an imbalance of power.
This imbalance of power is obvious in legal cases where the state is one of the parties, particularly in criminal cases or child apprehension matters. The crown has significantly more resources and can marshal evidence against a parent who is unable to fairly present his or her own case without legal representation.
Legal aid attempts to correct this imbalance by providing low-income individuals with legal representation.
- Legal Aid and the Charter of Rights
The Canadian Charter of Rights and Freedoms provides for fairness and equal protection under the law. Several provisions of the Charter relate directly to the provision of legal aid. They are:
- Section 7: the right to life, liberty and security of the person in accordance with the principles of fundamental justice;
- Section 10 (b): the right to retain and instruct counsel if arrested or detained;
- Section 11(d): the right to be presumed innocent until proven guilty in a fair and public hearing by an independent and impartial tribunal;
- Section 15 (1): all individuals have equal protection and benefit of the law without discrimination.
The legal aid system is the mechanism that ensures equal protection and benefit of the law for the poor and disadvantaged in our society.
Legal Aid in Saskatchewan – Brief History
Saskatchewan’s legal aid system came into existence when the provincial government passed the Community Legal Aid Services Act on April 18, 1974. The legislation provided for the creation of 13 store-front legal aid clinics across the province, funded by the Community Legal Service Commission and administered by locally-elected boards of directors .
When then-Attorney General Roy Romanow introduced the legislation he stated:
“It does a poor person who is wrongfully evicted from his home no good to know that there is a remedy for him under the Residential Tenancies Act if he has no way of obtaining that remedy because he cannot afford legal services.”
The main impetus for the creation of a community legal aid system came from the report of the Carter Commission, established by the government to examine the legal issues and problems faced by poor people in the province.
The Legal Aid Plan was to be a progressive model to assist and educate the poor on legal matters. The main objectives for legal aid as outlined in the legislation were to service poor people in both criminal and civil matters and to provide legal counseling, public education and preventive legal aid. Legal aid lawyers and staff handled all civil cases including what is known as poverty law (landlord tenant disputes, social assistance and unemployment insurance cases, and so forth). In criminal law cases, people could choose to be represented by private lawyers with the Legal Services Commission paying the bill.
The legal aid system has gone through changes under different government administrations but perhaps the most dramatic changes took place under the Conservative government of Grant Devine. In the mid 1980s the Devine government abolished the community boards and established the Legal Aid Commission, an arms-length body to administer legal aid. The range of services was cut back to criminal and family law: no more unemployment insurance or social assistance appeals, rental dispute work, or other poverty law matters .
Today, seventy-five percent of legal aid cases are criminal law matters and one-quarter are civil or family law matters. Other provinces’ legal aid plans still handle poverty law cases and have community legal aid clinics. Ontario, for example, has 17 specialty clinics that focus on areas such as environmental law, injured workers, the elderly, disabled, children and youth cases .
Backgrounder on Legal Aid
History of Legal Aid
Prior to the establishment of a national legal aid program in 1972, legal aid existed in various forms in some provinces. In the early 1950s in both Ontario and Quebec, legal aid services were organized through legal Bars and the voluntary services of lawyers. In 1951, Ontario was the first province to pass legislation to set up a legal aid program. Other provinces developed various legal aid systems in the 1960s and 1970s but the majority created formal Legal Aid structures with provincial funding in the early 1970s.
In Saskatchewan, legal services to the poor were provided by private lawyers on a voluntary basis until 1967 when the Law Society of Saskatchewan and the Attorney General established a legal aid plan for criminal offences. In the early 1970s the Saskatoon Legal Assistance Clinic used staff lawyers to deliver legal aid services in the community. This successful model influenced the Attorney General’s Committee on Legal Aid (the Carter Committee) to recommend a provincial legal aid staff system that emphasized community involvement. From the recommendations of the Committee, the province passed the Community Legal Services Act in 1974 and created the Saskatchewan Community Legal Services Commission .
In 1972 the Trudeau government created a national legal aid program. The federal government acknowledged the need for legal assistance for the poor and the obligation of the federal government to ensure equal access to the criminal courts. The move was also seen as part of the government’s social reform agenda and its desire to create a “just society.”
The Different Approaches of Legal Aid
There are two main approaches to the delivery of legal aid services: the judicare model and the community clinic model.
For the most part, legal aid had been delivered in Canada by a judicare model. Low income clients would have to go to a legal aid office and prove their legal and financial need. After their case was established and a certificate granted, the person could access a private lawyer who would be paid for legal services by the plan. The private lawyer would not necessarily have experience dealing with poor people or the legal problems faced by the poor.
Critics of the judicare system say that much responsibility is placed on poor persons to make sense of their legal situation and understand how to proceed. In effect, the judicare system does not provide effective equality of access to the courts. The Poor People’s Conference in 1970 described the dissatisfaction of low income clients: “Legal aid in Canada is a system by the legal profession for the legal profession with total indifference to the client – the poor…”
The community legal clinic model was based on the belief that low-income persons had specific legal needs that needed to be addressed in a holistic way. The proponents of this model felt that poor people required different kinds of services delivered in different ways. In Canada, the federal department of Health and Welfare nurtured the development of community clinics because the clinics were seen as a part of the government’s strategy to eliminate poverty.
Across Canada there is a mix of delivery systems for legal aid. The majority of provinces rely on the judicare model, where most legal aid cases are handled by lawyers in the private bar. Many provinces use a mix of private and staff lawyers. In Saskatchewan, staff lawyers handle 93% of legal aid cases compared to only 22% of cases in Manitoba .
The Funding of Legal Aid
About 90% of total legal aid revenue across the country comes from provincial and federal government contributions. Other sources of revenue include client contributions, cost recoveries from legal cases, and contributions from the legal profession.
In 1972 the federal government provided about 50% of the cost of providing criminal legal aid services through cost-sharing agreements. Federal contributions to legal aid declined steadily between the years 1995/96 and 1998/99 reaching a low of $82 million in 1998/99. In 2001/02, federal funding to criminal legal aid increased to $92 million .
The federal government used to provide financially for civil law cases though the Canada Assistance Plan (CAP). With the creation of the Canada Health Social Transfer (CHST) in 1996, however, all federal monies for health, education and social services were rolled into the one transfer. Provinces now decide how to allocate the funds. There is no longer a way of tracking federal contributions to civic legal or if provinces are allocating CHST funds to this area.
CS/ng:opeiu 491 CUPE Research April 11, 2003