OTTAWA – As Ottawa promises more money to help improve access to the criminal justice system, a disproportionate number of women are at risk of being left out, say members of the legal aid community.
“The demographics are that family legal aid is used predominantly by women and criminal legal aid is used predominantly by men,” said Karen Hudson, executive director of the Nova Scotia Legal Aid Commission.
The federal government provides dedicated funding for criminal legal aid programs, and plans to ramp up its contributions to the provincially run programs to an additional $30 million a year in ongoing funding by 2021.
That commitment to more money is being welcomed by the provinces, legal aid programs and those calling for better access to the justice system — especially since federal contributions to legal aid have been stagnant at around $112 million per year since 2003.
That annual contribution from Ottawa to the provincially run programs had become a shrinking fraction of the nearly $800 million in total government investment for all kinds of legal aid, including civil.
Outside the three territories, the federal government no longer provides any dedicated funding for civil legal aid, which includes financial help for clients who need to access the family court system, such as for divorce and related support and custody cases.
Since 1996, that money has instead come from federal transfer payments to provinces for social programs — a total of $13.3 billion nationwide this fiscal year — and it is up to the provinces to spend it according to their own priorities and needs.
That leaves it up to legal aid programs to decide where to direct their scarce resources.
Since there are no constitutional requirements under the Charter of Rights and Freedoms to provide civil legal aid outside of child protection cases, most legal aid programs end up giving a higher priority to providing lawyers to defendants facing incarceration in the criminal courts.
“Legal aid plans across the country prioritize their funding into constitutionally guaranteed legal aid services, which most criminal and child protection cases are and then it’s kind of what is left over gets dedicated to civil legal aid services,” said David McKillop, vice-president of policy, research and external relations at Legal Aid Ontario.
“It could be interpreted that women, as the predominant users of those services, end up on the short end of the stick.”
Legal Aid Ontario tracks the gender of clients who receive certificates, which is a voucher guaranteeing a client representation by a lawyer for a certain number of hours.
According to statistics provided by McKillop, there were 108,259 certificates issued in fiscal 2015-16. About 37 per cent of them were issued to female clients.
That data was not broken down into criminal and civil legal aid, but the latest annual report for Legal Aid Ontario shows that out of the $173.5 million spent on the certificate program in fiscal 2014-15, about $102 million went to criminal cases and nearly $62 million to non-criminal cases, including $50 million of which was for family law.
The department applies a gender-based analysis to all its policies and programs, said Ian McLeod, a spokesman for Justice Canada. However, civil legal aid was not part of the discussions about increased funding, except in the territories, where the federal government funds all legal aid, McLeod said.
The Canadian Bar Association is calling for federal leadership on a national public legal assistance program.
“We need to have some national, principled approach to what we expect legal aid should provide, because if we don’t, legal aid plans have to make decisions just based on the dollars they get and they only have to cover the services that they’re mandated to cover,” said Patricia Hebert, an Edmonton-based family lawyer and spokeswoman for the CBA on legal aid issues.