Access to Justice Services Agreements Evaluation

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5. CONCLUSIONS

5.1 Relevance

There is a continued need to provide funding to the territories for legal aid, ACW services and PLEI activities, and the consolidated agreement meets a need that would not otherwise be met with three separate funding agreements.

The evaluations of the LAP, ACW Program and JPIP (through which PLEI is provided to the territories) establish the need for each of these programs. Constitutional and Charter obligations provide the rationale for federal contribution funding for both criminal and civil legal aid in the territories. The increasing number of criminal legal aid applications further supports the need for legal aid funding. With respect to ACW services, the overrepresentation of Aboriginal accused in the justice system, which is exacerbated in the territories where a greater percentage of the population is of Aboriginal descent, forms the basis for the need for federal funding in this area. Finally, the importance of improving the public’s knowledge and understanding of the justice system serves as evidence for the need for PLEI.

Due to the size and remote nature of their jurisdictions, an alternative approach to the funding of these program components is warranted in the territories. The consolidated agreements provide the territories with the needed flexibility to deliver these services that three separate agreements would not.

There is alignment between the roles and responsibilities of the federal government and the provision of funding to the territories for legal aid and ACW and PLEI services.

The federal government demonstrates a commitment to ensuring access to justice in the territories by contributing funding for criminal and civil legal aid. Further, funding for legal aid and ACW and PLEI services enables the federal government to “ensure that Canada is a just and law-abiding society with an accessible, efficient and fair system of justice”, as articulated in the Department of Justice’s mission statement.

The provision of funding for legal aid, ACW and PLEI services to the territories is aligned with federal government priorities, as is the case of taking a specialized approach to the provision of this funding

As a signatory to the International Covenant on Civil and Political Rights, Canada has demonstrated the importance it ascribes to the provision of legal aid to those who cannot afford their own counsel. Additionally, ACW services allow the federal government to renew and deepen its relationship with Aboriginal peoples, which it outlines as a priority in the 2011 Speech from the Throne. Finally, funding towards PLEI activities allows the Department to be responsive to government priorities through the development of policies, laws and programs in areas such as Aboriginal justice, criminal justice, youth justice and family justice.

Canada’s Northern Strategy outlines the federal government’s commitment to the North, which is in part demonstrated by the recognition of the unique circumstances faced in the territories and their need for agreements which allow them flexibility to operate within their contextual parameters.

5.2 Effectiveness

Without the federal contribution, the capacity of the territories to deliver criminal and civil legal aid and ACW and PLEI services would be significantly affected. Key informants acknowledged the importance of the federal funding to support these services. Funding levels have not changed since 2005/06.

The delivery of criminal legal aid is effectively providing territorial residents with the assistance they need to ensure a fair and accessible justice system. Stakeholders identified gaps in the provision of civil legal aid in the territories.

The minimum standards for legal aid – both criminal and civil – are met in all three territories. However, the increasingly high costs of legal services in the territories do impede the jurisdictions from providing assistance in all the areas for which there is demand, and gaps in the areas of family law and civil matters were noted.

The effectiveness of ACW services in the territories varies by jurisdiction and depends on the capacity of the individual courtworkers. However, stakeholders agree that the program component is operating as effectively as possible within the constraints inherent in each delivery model, and that Aboriginal accused greatly benefit from the services provided.

The minimum standards regarding the provision of courtworkers services are being met in the territories, and Aboriginal courtworkers bridge the gap between Aboriginal accused and the justice system that is even more heavily felt in the territories than in the rest of Canada. The level of effectiveness of the services depends on the individual courtworkers providing the services, and challenges to the effective management of the ACW Program component, such as high turnover rates and isolation, impede some territories’ ability to deliver services that are consistent from community to community.

PLEI activities, when undertaken, are done so in a manner appropriate to the context of the North. Officials recognize that more PLEI activities could be done, but are reluctant to designate funds to this area at the expense of providing legal aid to residents facing possible incarceration.

As PLEI is generally delivered in an informal way by the same people who also provide legal aid and ACW services in two of the territories, it is difficult to quantify the number of PLEI activities that are undertaken or to establish their impacts. However, this alternative delivery approach is appropriate given the realities of the North, and territorial governments and/or service delivery agencies find innovative ways of providing PLEI services to residents despite challenges such as multiple official languages, high distribution costs and low levels of Internet accessibility.

There is general agreement among Program stakeholders that the consolidated agreement is a better alternative to separate funding agreements.

Interview respondents agree that the consolidated agreement recognizes the unique context of the territories, providing them with the flexibility they need to deliver their services appropriately. In some instances, the provision of legal aid, ACW and PLEI services is coordinated by one body, and delineating the resources and time spent between the three program areas is not always feasible. In other instances, where not all of the budgeted resources in a specific program area are being spent, the AJA flexibility allows territorial officials to use the funds in one of the other program components rather than lapsing resources.

Further, territorial officials recognize the administrative efficiencies achieved as a result of completing one annual claim instead of three. Unlike in the provinces, because of the small population size of the territories and their governments, the same territorial staff person is often responsible for overseeing and administrating each of the three program components.

Territorial officials noted various obstacles to effective performance measurement and to the completion of audited financial statements. As a result, the submission of annual claims can be delayed.

Although there are varying degrees of performance measurement capacity in each of the territories, officials from all three territories agree that there is room for improvement in this area. Based on interview comments, the expense and time required to complete an audit of financial statements presents the greatest challenge; however, other factors such as inconsistent data collection methods and high staff turnover also contribute to the difficulty in collecting the required financial and performance data.

Nunavut has experienced particular challenges in completing and filing annual claims: the last claim received by the Department of Justice is for fiscal year 2007/08. The site visit to this jurisdiction revealed that annual reports of the Nunavut LSB, an arms-length body that administers legal aid, ACW and PLEI services, are available for each of the years since then, but that there have been challenges in completing the audits of the financial statements, and that not all of the program information has been collected consistently over the years. However, this deficiency in performance measurement capacity is not a result of the consolidation of agreements, and all sources indicate that the problems would exist, and possibly be compounded, with three separate funding agreements.

5.3 Efficiency and Economy

The AJAs are economical and efficient. All stakeholders agree that a reduction in federal funding would result in a reduction in services.

The LAP, ACW and JPIP evaluations all conclude that these programs are efficient and economical.

At the territorial level, officials underlined the administrative efficiencies obtained by having one consolidated agreement in the place of three. For the most part, efficiencies are achieved as a direct result of the efforts made by the territorial governments and/or service delivery agencies to maximize the impacts of legal aid and ACW and PLEI services within the current funding levels.

A certain level of economy is achieved at the departmental level as a result of the consolidated agreements. Interviewees from Justice Canada highlighted the financial benefit directly realized by having one agreement to negotiate with each of the territories instead of three, as well as having only one claim to review from each territory rather than three.

6. RECOMMENDATIONS AND MANAGEMENT RESPONSE

Issue 1: Division of Reporting Requirements

Although the expense and timing of performing an audit present one set of challenges, it should be noted that corresponding delays in submitting program component reporting to Justice Canada are also incurred as a result. Some respondents suggested that a possible remedy to this would be to separate the annual claim into two parts: program information and financial. This measure would ensure that Justice Canada receives most of the statistical information regarding the program services in a timely manner, as territories wait for the completion of audited financial statements.

The Access to Justice Services Agreements include both financial and program reporting requirements. The Policy Implementation Directorate will identify changes required to separate claim reporting into separate components.

Issue 2: Communications regarding Performance Measurement and Program Reporting

Although Justice Canada is not responsible for the gaps in communications between territorial officials and service delivery agencies, it would be greatly beneficial to the Department if the program reporting and performance measurement requirements were better understood by all parties involved in the delivery of AJA services.

Perhaps one of the underlying causes of the challenges regarding performance measurement and program reporting is a shortcoming in communications. Evaluation interviews revealed that there is a difference in the level of knowledge concerning the AJA reporting requirements between the territorial government officials who sign the agreements and the service delivery agencies which deliver legal aid and ACW and PLEI services.

Issue 3: Appropriateness of Performance Measurement Indicators

The current performance indicators for the AJAs are in line with the measures used in the provinces for each of the three program components. However, some territorial and departmental officials question whether these measures can accurately represent the unique circumstances in the North and how legal aid, ACW and PLEI services play out there.

However, caution was also expressed by some that changes to these requirements could be difficult to implement given the capacity challenges that are already faced.

Performance indicators will be reviewed to determine if additional measures would better reflect the unique circumstances in the North.

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