Vincent C. Yang

On January 17, 2023, Prof. Vincent Yang, Senior Associate of ICCLR, gave a lecture at the 180^th International Senior Seminar hosted by UNAFEI in Japan on “Criminal Legal Aid in Canada”.  Justice officials from Bosnia and Herzegovina, Brunei, Cambodia, Dominican Republic, Indonesia, Kenya, Laos, Maldives, Nepal, Somalia, South Sudan, Sri Lanka, Uganda, Uzbekistan, Viet Nam, Zimbabwe, and Japan attended the seminar. In his lecture, Prof. Yang shared his observation of the strengths and features of the Canadian system.

First and foremost, the Canadian system of criminal legal aid is based on the core values of fairness and equality in Canadian society. Prof. Yang pointed out that, unlike in some countries where “defending the criminals” is still a public perception issue, the Canadian public is generally supportive of legal aid for the poor and vulnerable people. The system is also a reflection of the belief in the rule of law and human rights amongst the government, the legal profession, and the public in Canada. Although the status quo is often criticized in Canada, the purpose of such criticisms is mainly to secure more funding for legal aid, to use the funds more effectively, to reduce the cost and improve the services.

Secondly, unlike a unitary state, Canada has a decentralized legal aid system based on the division of powers between the federal government and the provinces and territories. In his view, the provinces and territories in Canada have far more decision-making powers than those in a unitary state. As a result, the 13 jurisdictions in Canada have developed 13 different legal aid plans to serve their particular needs and conditions. Therefore, Canada has one of the most diversified and complicated legal aid systems in the world.

Thirdly, Dr. Yang indicated, the various Canadian legal aid plans are compatible with international standards and consistent in the following basic principles and norms: (1) recognizing access to criminal legal aid is a legal right of poor and vulnerable persons, and providing legal aid is a government responsibility; (2) legal aid is mainly funded by the government; (3) the federal government provides funding to all the provinces and territories primarily for criminal legal aid, making it possible to apply and maintain basic national standards; (4) creating and funding legal aid plans are a part of the provincial and territorial responsibility in “the administration of justice”; (5) there is a designated legal aid organization to manage and operate the legal aid services in each province and territory, and such organizations are mostly independent from but accountable to the government; (6) legal aid organizations deliver the services with the support of other stakeholders, especially the provincial/territorial law societies and lawyers providing pro bono services; (7) criminal legal aid is for the accused persons and as Dr. Ab Currie et al. rightfully pointed out, not for victims of crime; (8) victims can access free legal information and assistance, which is not legal representation but can greatly facilitate access to justice; (9) all legal aid plans apply two types of eligibility guidelines in assessing the needs of criminal legal aid clients, i.e., gravity of the offence and financial need; and (10) in all the legal aid plans, criminal legal aid covers both indictable offences and subject to certain conditions summary conviction offences, and it may cover the entire criminal process or a part of it, e.g., the pre-trial, trial, and/or post-trial stages.

Last but not the least, Dr. Yang admitted that the legal aid system in Canada faces constant challenges, including the growing demand for aid vs. the limited and sometimes reduced funding, the need to improve services to Aboriginal peoples and some other vulnerable communities, geographic barriers in the vast North, cultural and communication barriers among new immigrants. Canadians are making the effort to address these issues by testing and implementing better and more innovative ways to improve the system.

To help the seminar participants better understand the Canadian system, Prof. Yang referred to the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, R. v. Brydges and R. v. Bartle in Canadian case law, relevant legislations and guidelines in Ontario, BC, and Alberta, examples of eligibility guidelines regarding income and assets, application approval rates, statistics of legal aid funding and resources, the Canadian Victims Bill of Rights, programs of victims services in BC, etc. He introduced a classical comparative study published by Professors Peter Burns and R. Reid in 1981 regarding the benefits of the judicare vs. the staff lawyer models.

In his conclusion, Dr. Yang briefly referred to the CIDA-funded projects to promote legal aid in China that ICCLR and the Canadian Bar Association successfully implemented during the 1990s-2000s. He then recommended to the UNAFEI seminar participants some of the most recent government and legal services society reports and other readings for further studies of the Canadian legal aid system. Sharing of best practices in this important field is always welcome.

Photo by Chelsey Faucher on Unsplash.