Criminal and family legal aid services are provided under the Prince Edward Island Legal Aid Program. The program is administered under the general powers of the Department of Justice and Public Safety. The scope of services covered by the program and financial eligibility for assistance are determined by government policy. Prince Edward Island does not have specific legal aid legislation.
The criminal legal aid services provided by the program are cost-shared by Canada under a federal-provincial agreement implemented in 1973, and renewed from time to time since then. The federal contribution agreement applies in all provinces and territories. It is intended to promote uniform access to a minimum level of service throughout Canada and as a result, coverage in each province and territory is determined to some extent by the details of the agreement.
The province receives no direct federal funding for family and civil legal aid.
Criminal Legal Aid
The objective of the Criminal Legal Aid Program is to promote access to legal representation in the criminal trial process. Under the program, lawyers are made available to persons who would otherwise be unable to afford legal representation in serious criminal matters. As a minimum, legal aid will be provided in situations where a court applying the Canadian Charter of Rights and Freedoms would consider the assistance of counsel to be essential for a fair trial.
Eligibility for legal assistance is determined by a flexible means test. The test is conducted by intake workers and reviewed by staff lawyers who assess the seriousness of the legal proceedings and determine whether the applicant’s present means should be sufficient to actually obtain private counsel within the required time frame.
Family and Civil Legal Aid
Coverage in family law and related areas of civil law was added to the Prince Edward Island Legal Aid Program in 1980. The term “civil legal aid” is used collectively to refer to all areas of service that do not directly involve criminal law. Civil legal aid is now available everywhere in Canada but the type and amount of assistance that may be provided, varies from one province or territory to another. The provinces and territories are responsible for the operation of their own civil legal aid plans. They determine the types of legal problems that will be covered, the eligibility criteria for applicants, and the systems by which services will be delivered. Family matters account for the majority of civil cases in all jurisdictions.
Additional civil legal aid coverage areas include child protection law, and involuntary hospitalization or residential orders under mental health and adult protection laws. The provision of legal aid in these areas of law is often required under the Charter of Rights because the litigation involves action by government that may affect individual rights of liberty or security of the person.
Priority for Assistance
The objective of family legal aid is to provide legal assistance to those who cannot afford the services of a lawyer in the most urgent family situations. Legal needs are prioritized on two levels. Level One, the highest priority, refers to cases where domestic violence has occurred or where the personal security of applicants or children in their care is endangered in a family situation. Level Two describes the need for essential legal services in family situations where there has been no domestic violence or present threat to the security of the applicant or a child in his or her care. Divorce coverage is provided only where it is determined to be the most effective court procedure for addressing one or more of the foregoing objectives.
In Level Two situations, applicants who require legal assistance to meet the needs of dependant children are given priority. Legal needs in this category include: custody, access, financial support, and housing. Due to the high demand for those services, only very limited resources remain available to assist applicants with legal needs that do not relate directly to the support of dependant children.
Where an applicant’s legal needs do not qualify for full service under Level Two, summary advice may be provided. Summary advice generally involves a brief telephone or office consultation with a staff lawyer, with the opportunity for further assistance if the applicant’s legal needs change or increase.