LAO Board Advisory Committees fall 2016 meeting: Updates and proposed priorities 2017/18
Presented to the fall 2016 Legal Aid Ontario (LAO) Board advisory committee meetings
Prepared by Policy & Strategic Research Department
1. LAO financial picture
LAO is facing around a $20 million deficit of which the increased demand for refugee services is a significant component.
LAO has also spent more on the Financial Eligibility program than it has received in funding. LAO hopes to balance this within a few years.
LAO continues to work on various initiatives to balance its budget by April 1, 2017.
2. Financial eligibility update
On April 1, 2016, financial eligibility for all legal aid services increased by six per cent. This was the third six per cent increase to financial eligibility since November 2014. As a result of the three 6% increases to date, 1.4 million people in Ontario are now eligible for legal aid, up from 1 million people prior to the first increase.
In June 2015, LAO implemented an ambitious expanded legal eligibility initiative , making new services available in the areas of family, criminal, refugee and mental health law.
The eligibility increases have been made possible by a $96 million investment by the Province over three years, and support a commitment in the 2014 provincial budget to increase eligibility thresholds by six per cent each year over multiple years.
3. Legal clinic eligibility expansion
2015‑2016 Provincial Fund allocations
As part of the $10 million in additional funding provided to clinics in 2015‑2016 to support financial eligibility expansion, in March 2016 LAO allocated a total of $3.3 million in new funding, through the Provincial Fund 2015‑2016, to support clinics in providing new legal services to more clients and communities.
A total of 79 applications were made to the Fund. Funding was allocated to 17 lead clinics, which will carry out a total of 23 collaborative initiatives. 16 of the initiatives will receive permanent funding.
The funded initiatives cover:
Employment law and Workplace Safety and Insurance Board
French language services
Mental health/medical-legal partnerships
Innovative approaches to service delivery using technology
In 2015‑16 LAO issued 24% more certificates than in 2014-15 — mostly as a result of financial and legal eligibility expansion.
The biggest impact of expanded legal and financial eligibility has been among certificates for minor criminal matters and domestic family law.
Impact of expanded financial and legal eligibility— by the numbers
Comparing the period of June 2015 to March 2016 to that of the previous fiscal year shows:
33% (or 7,500 certificates) increase in the number of certificates issued for minor criminal matters (first time offenders, simple assaults, etc.);
56% (or 4,000 certificates) increase in the number of domestic family law certificates where domestic violence was identified;
51% (or 2,000 certificates) increase in the number of domestic family law certificates where no domestic violence was identified;
Increases of less than 10% in the number of certificates issued for: serious criminal matters, child protection and civil matters.
LAO continues to issue certificates at a very high rate – current daily average exceeds budgeted amount of 415 certificates per day.
June 2016 response to pressure from expanded legal eligibility
The increase in new legal eligibility certificates has exceeded the money allocated by the provincial government for certificate expansion, resulting in financial pressures for LAO.
Over the past year, LAO found that too many of the new certificates were being issued by front-line staff based on general open-ended criteria, without a consideration of whether the client's particular circumstances required a certificate.
In June 2016, LAO clarified its expanded legal eligibility criteria to ensure that expenditures align with provincial funding and to ensure continuation of access to the certificate program's new categories for the intended recipients. As a result, the range of certificates that can be automatically issued by front-line staff has been narrowed, and clients who may be eligible for some new certificate services are now directed to duty counsel for service and to determine whether the client's circumstances meet the expanded criteria.
Clients who qualify under LAO's clarified criteria continue to be referred to the certificate program. Duty counsel have been provided with training to assist in making the determination. LAO is continuing to monitor the issuance of certificates.
4. LAO strategies and services
Aboriginal Justice Strategy
Aboriginal Justice Strategy (AJS) Local Leads are being developed by LAO this fall, as an effective way to build and sustain local expertise. The Local Leads will be a part of LAO's new AJS Working Group, which aims to increase the effectiveness of AJS initiatives and strategic priorities, and to increase participation of both LAO district staff and the broader Aboriginal and Justice community. The Working Group and Local Leads will also play a role as LAO begins work on Canada's Truth and Reconciliation Commission's (TRC) Calls to Action, by helping LAO to identify pilot projects.
As of June 1, 2016, all legal aid service providers, including duty counsel, are required to ask clients if they identify as an Aboriginal person. The Aboriginal Self Identification Question (ASIQ) is asked so that LAO has better data on the First Nation, Métis and Inuit clients that it serves.
Work is ongoing on development of cultural competency training for LAO staff. Staff training has also been provided on the use of the ASIQ.
The Ministry of the Attorney General is hosting a Gladue summit in November, with invitations being extended to 100 participants. The focus is on increasing the application of Gladue in courts, including at bail and sentencing. LAO has a seat on the organizing committee.
Mental Health Strategy
A two-year "embedded counsel" initiative is underway at Sound Times, a community mental health agency in Toronto. It provides integrated on-site legal aid services and referrals to high needs clients in the areas of immigration and refugee, criminal, family, and in some cases civil and administrative law. An additional component of the project provides duty counsel services to clients facing "street tickets" (for example, for panhandling or trespassing) at Provincial Offences Court at Toronto's Old City Hall Courthouse.
LAO and the Hamilton Community Legal Centre (HCLC) have collaborated to offer community based legal services for clients with mental health issues in the Hamilton area. Staff lawyers from LAO and the clinic conduct community based legal clinics at several sites including a food bank and a youth shelter.
LAO is moving forward with training:
In May, 2016, LAO offered two days of mental health training to criminal staff lawyers. The focus was on providing substantive and hands on training on issues that arise while assisting clients with mental health issues and addictions.
On July 7th, 2016, the MHS held a full day criminal law mental health training session for 25 district leads. The training included education about the mental health advocacy movement; how to identify the needs, options, and consequences of clients with mental health issues in criminal court; accommodation and communication skills. A resource manual was included with the training.
Mental Health First Aid Training, developed by the Mental Health Commission of Canada (MHCC), is also being delivered to LAO staff by a senior counsel and staff paralegal. Participants receive a certificate from the MHCC after successful completion of the course.
LAO is continuing to work on the Mental Health Appeals Program, which is being revised to incorporate consultation feedback.
LAO continues to follow-through on commitments made with the release of the Mental Health Strategy (MHS) in March 2016.
MHS "District Leads" for criminal law are being developed by LAO this fall to build local communities of practice, roll-out new practice support tools, and support ongoing mental health training and peer support for criminal practitioners.
Two to three practitioners volunteered from each district to act as leads and received "train the trainer" education on July 7, 2016
At the core of the training are new practice support tools developed with the input of an external advisory group consisting of private bar, staff lawyers, clinic lawyers, academics, and persons with lived experience
These tools include a model intake sheet and a guided interview resource that helps lawyers better identify needs, options and secondary consequences for their clients
This curriculum additionally includes education about the mental health rights advocacy movement in Ontario; how to identify the needs, options, and consequences for clients with mental health issues in criminal court; accommodation and communication skills; and wellness in the profession
LAO is sharing this training with any interested organizations, including the Association of Legal Aid Plans of Canada
This "core" curriculum is complimented by two other MH training initiatives at LAO: a two-day introductory substantive criminal mental health law program developed in 2015; and development of in-house capacity to train staff on the Mental Health Commission of Canada Mental Health First-Aid Program
Domestic violence strategy
Domestic Violence Strategy consultations are ongoing. A strategy document is expected to come to the LAO Board for approval in December 2016. A public launch of the strategy is anticipated by the end of the fiscal year.
Following a successful round of domestic violence awareness training for LAO staff (completed in September 2015), training is now being rolled out to per diem duty counsel, legal clinics and private bar lawyers who are on LAO's domestic violence panel.
Work continues on LAO's review of its domestic violence policies and protocols, including the two-hour domestic violence authorization program.
LAO's bail strategy paper will be posted on its website in fall 2016.
LAO and the John Howard Society of Ontario (JHSO) partnered in a funding request to the Law Foundation of Ontario for a Youth Bail Project Study. The study has been approved for funding, and will in part rely on qualitative data collected by LAO staff in relation to youth bail matters.
A two-year duty counsel Bail Project got underway in June 2016 at the 1000 Finch courthouse in Toronto. Its goals are to develop a "best practices" bail service, to address the issue of overly onerous bail conditions, and ultimately to reduce the number of times that bail conditions are breached.
An advisory committee has been formed to guide the project.
The project has a data collection aspect that includes taking information about language preference and racial or ethnic identification.
Racialized Communities Strategy
LAO has a new public website page, legalaid.on.ca/RCS, dedicated to the Racialized Communities Strategy. As of end of August 2016, LAO has had interviews with over 55 distinct key informant agencies/individuals.
Through the RCS, LAO is currently developing an initiative to make legal assistance available to Black students who are facing suspension or expulsion from school under the Education Act.
The RCS strategy team is working with the 1000 Finch Bail Pilot team to implement a pilot at that location to collect race-based data about bail clients.
Next steps include:
Consultation Paper to be published in March 2017
Province wide community consultations will begin April 2017
Assessing feasibility of collecting race-based information from applicants and clients of Legal Aid Ontario
Template and tools for outreach about legal aid services to agencies serving racialized communities being piloted
Racialized Communities Strategy: Questions for the Board advisory committees
Stakeholder consultations to support community engagement and the development of the strategy are continuing. LAO would appreciate input from the advisory committee on thes questions:
With regard to LAO's current services and procedures:
What is working?
What is not working?
Are there unmet needs? If yes is this:
Due to a lack of services in a particular area of law
Related to service delivery i.e. service accessibility as a result of geography, language, cultural or other barriers
Is the community aware of the availability of LAO services and service enhancements? Does more need to be done in order to reach the community?
What are the legal needs of the community in the following areas of law:
Prison Law Strategy
Strategy development is continuing with consultations.
LAO engagement on prison law issues:
Letter sent to the Ottawa-Carleton Detention Centre (OCDC) Task Force in May, 2016, identifying LAO's concerns about the safety and security of prisoners, their conditions of confinement, and the impact that conditions at the OCDC have on prisoners' access to counsel and to legal aid services.
Letter sent to the Ministry of Community Safety and Correctional Services (MCSCS) in May, 2016, providing background on legal aid services for prisoners and outlining LAO's concerns about the use of segregation in provincial correctional facilities, particularly in relation to vulnerable groups including persons with mental illnesses, women, young persons and members of over-represented groups.
LAO has started an enhanced inmate services project to improve access to lawyers for vulnerable inmates in pre-trial detention in Halton region. The project employs a holistic approach. It will identify vulnerable persons, including those who:
have not been able to apply for legal aid or find counsel
have legal issues in addition to their criminal matter—for example, family, housing or immigration issues
have mental health or addiction issues, or experience barriers such as language
The project will make referrals to the certificate program (if the client is eligible) or to LAO staff services.
Family law services
LAO has been working with the Motherisk Commission, which was established in January 2016 to support and assist persons affected by flawed Motherisk hair analysis test results, and is developing a plan to provide services to eligible clients. The tentative plan involves issuing a 45-hour opinion certificate, with the goal of exploring options for reconnection and reconciliation.
LAO will be responding to a request from the Office of the Chief Justice (OCJ) for input on potential changes to Rule 24 of the Family Law Rules, dealing with costs.
LAO continues to explore options for new family law services that were introduced with one-time three year funding, which is now in its final year. These services include new family law services provided by Student Legal Aid Services Societies (SLASS). LAO has approached the Ministry of the Attorney General to discuss ongoing sustainability of the SLASS family law services.
LAO submission to the Family Legal Services Review consultation
In April, LAO made a formal submission to the Ministry of the Attorney General's Family Legal Services Review consultation on whether family legal services should now also be delivered by people who are not lawyers, such as paralegals, law clerks and law students.
The submission outlines LAO's experience in providing legal services by non-lawyers and the lessons learned from various projects.
LAO's conclusion is that "with the proper safeguards and an appropriate framework in place, persons other than lawyers, such as paralegals, are capable of providing—and should be permitted to provide—some legal services in certain family matters."
LAO is supporting the Ontario Court of Justice's Criminal Modernization Project:
Two hours of funding are provided by LAO for a second judicial pre-trial (or similar second case management event) at 15 selected sites, in a two-year pilot project that concludes on March 31, 2018.
LAO is also involved in a 12-month pilot project that involves having a duty counsel presence at Toronto South Detention Centre to support meaningful, effective video bail appearances at the College Park and Metro West Courthouses in Toronto. Clients appearing by video will have the same support from LAO that they would receive at the court site. The pilot will commence in fall 2016.
LAO has developed a plea comprehension inquiry tool for use by duty counsel representing clients who wish to make a guilty plea.
LAO has also introduced an immigration advice hotline for staff and per diem duty counsel who have a client who is not a Canadian citizen and who wishes to plead guilty. The hotline provides immediate access to an immigration lawyer who can identify the potential consequences for duty counsel to relay to the clients.
LAO's criminal law paralegal pilot project has received a positive evaluation. The project involved five existing LAO staff at four criminal courthouses in Hamilton, Ottawa, Brampton and London. The participants received extensive training and now are exercising their paralegal licenses, providing more comprehensive services and increased support to duty counsel as part of duty counsel office teams.
Refugee law services
LAO continues efforts to secure additional funding needed to provide refugee services.
LAO has completed its implementation of refugee and immigration panel standards.
LAO implemented a Summary Legal Advice Refugee and Immigration (SLARI) service located in the GTA that supports the Province. SLARI provides, by phone:
Summary advice to clients on matters related to humanitarian and compassionate applications, stays, deferrals, and other immigration matters
Summary advice to duty counsel regarding secondary consequences for clients of criminal proceedings
Merit assessment of basis of claims and immigration matters to determine coverage
LAO's legal services staff (Refugee Law Office-Toronto, Hamilton, Ottawa) have been actively engaged in systemic improvements to detention of refugees and immigrants by Canadian Border Services Agency with a focus on persons with mental health challenges, children, and long term detainees in correctional institutions.
Over the past quarter LAO has met with several community advocacy organizations (e.g. John Howard and Elizabeth Fry) and a group of speciality clinics to better coordinate test case work.
More test cases aligned with strategic priorities as a result of proactive promotion.
The program continues to arrange successful partnerships between and among members of the private bar and LAO staff, including Senior Criminal Counsel and Duty Counsel, to promote cost effective and successful litigation of test cases.
Beneficiaries of Test Cases unded from January 2016 to July 2016
5. Supporting transparency and open government
LAO supports the province's Open Data Directive, which instructs ministries and agencies to release government data that they create, collect or manage. The directive requires data to be "open by default" unless exempted from release.
Also in April, LAO partnered with the Law Commission of Ontario and the Canadian Forum for Civil Justice to host a one-day open data, open government conference that brought Canadian open data experts together with representatives of various justice sector institutions and actors in Ontario.
The paper is the first step in a wider consultation process that will take place in September‑October 2016. LAO will share what it heard in consultations by the end of the calendar year. The results of the consultation may inform the development of a long-term strategy for transparency and open government at LAO.
Transparency: Questions for the Advisory Committees
What data or information should LAO publicly disclose that is not currently available?
What kinds of justice sector data sets are of public value, academic or scholarly interest, or would contribute to greater transparency and accountability?
Is it important to release raw data sets with supplemental information to ensure that it is given appropriate context and not misinterpreted?
What kind of a balance should the justice sector continue to strike between openness and "privacy by obscurity"? What are some ways to strike this balance?
LAO has developed a new electronic worksheet and bring-forward system for LAO staff and per diem duty counsel working in criminal courthouses. It will be possible for users to view, track, monitor and update information including assists, referrals, and outcomes
A pilot project is currently operating in eight sites: Barrie, Windsor, Sudbury, Brockville, 311 Jarvis Courthouse in Toronto, Brampton, Timmins and Oshawa
LAO anticipates fully rolling out the project, beginning in November 2016, to 350 users at 136 locations. Implementation will be completed in 2017
The anticipated benefits include:
Improved access to justice
More meaningful appearances
Clients not having to re-tell their story
Consistency and continuity of service
Wired Justice Conference
LAO hosted a "wired justice" conference on September 8th and 9th, 2016. The conference featured panel discussions, demonstrations and presentations by leaders in the field of access to justice and technology.
Conference topics included:
Digital delivery of legal services to low-income people
Computer-mediated education and its impact on legal education
Online legal forums and document assembly tools
7. 2017-2018 business plan: Proposed priorities
7.1 Environmental scan: External trends and indicators
The number of criminal cases received in Ontario courthouses is a good indicator of demand from legal aid certificates.
In 2015-16 the number of cases received remained the same as in 2014-15, diverging from the decreasing trend that has been observed over the last five years.
The number of new proceedings initiated at Ontario's family courts continue to decrease for child protection and domestic family law matters.
Over the last four years, there has been a 15% decrease in new proceedings in Ontario.
LAO has observed continued growing demand for refugee certificates.
Since issuing a low of 5,300 certificates in 2013-14, the number of refugee certificates has increased by 75% to 9,300 in 2015-16.
This is still lower than LAO's historic levels of refugee certificates at 13,000 from four years ago.
7.2 Environmental scanning input from the Board advisory committees
There are many intersections and points of connection between LAO's priority strategies
Youth, including youth in custody and youth with mental health issues, are particularly vulnerable
People living in rural and remote areas face additional barriers to access
Low literacy skills create barriers and add to vulnerability; the issue is more prevalent among Francophone than Anglophone Ontarians
Client needs are changing as financial eligibility increases: for example, more clients need assistance with employment law issues
Service trends and systemic issues
The number of refugees arriving in Ontario will likely continue to rise
The declining trend in the number of criminal cases may be levelling off
A shift away from trials is occurring in family law
The over-representation of Aboriginal and racialized children in care continues to be a major issue
Opportunities for LAO
Opportunities for advocacy
Potential test cases
Opportunities for partnerships and collaborations
Working with law students, including training and involving students at an early stage
7.3 Planning for 2017-2018
In the next year, LAO will continue to develop and implement the plans and initiatives identified in its business plan for 2016-2017.
LAO's priorities for the coming year fall within four strategic objectives:
value for clients
value for taxpayers
service provider support
Strategic objective: value for clients
Under this objective, LAO will focus on expanding access to justice for clients through:
Continued implementation of expanded financial eligibility
Continuing to develop and implement strategies to support vulnerable clients: Aboriginal justice; mental health; domestic violence; racialized communities; bail; prison law
Advancing the use of client focussed technology
Strategic objective: value for taxpayers
Under this objective, LAO will:
Enhance governance and improve data collection
Strengthen panel management
Continue to support and incent clinic transformation
Develop a strategy to meet LAO's commitment to transparency and open government; support the province's Transparency and Open Government initiative
Strategic objective: insitutional enhancements
Under this objective, LAO will:
Continue to create and sustain an inclusive and diverse workplace
Seek administrative efficiencies to assist in addressing financial pressures
Continue to strengthen the Client and Lawyer Support Centre (CLSC)
Integrate technology into strategic planning to support LAO's strategic directions
Continue to support staff development and training
Develop a long term strategic plan and vision for legal aid services in Ontario with input from employees and stakeholders
Strategic objective: stakeholder supports
Under this objective, LAO will:
Continue high-level stakeholder consultations
Continue to develop new district and regional networks to engage communities and stakeholders
Use media and other public communications methods to inform stakeholders of LAO's programs, successes and future direction
7.4 Questions for the advisory committees
What advice on 2017-2018 priorities can the committees provide?
How well do the proposed priorities for 2017-2018 support and advance LAO's strategic direction?
In the context of LAO's financial picture and budget pressures, what advice do the committees have for prioritization, cost-saving, and maintaining momentum on priority initiatives?
Appendix: Report-back to the committees on Spring 216 meetings
Aboriginal Justice Strategy and services for First nation, Métis amd Inuit clients
LAO was encouraged by the Aboriginal Issues committee to maintain a focus on access for young First Nation, Métis and Inuit people.
The committee suggested that LAO look at the possibility of not applying financial eligibility testing in Gladue courts.
LAO has a role to play in "hub and spoking", to help lawyers and communities to connect and network.
It was suggested that LAO consider using Indigenous instead of Aboriginal. There is a growing preference for the use of Indigenous.
Lawyers working in child welfare need more resources and tools.
Aboriginal over-representation needs to continue to be a priority for LAO. Conversations need to be facilitated in order to break down silos, and LAO can play a leadership role in this.
Youth representation has been included on the Aboriginal Issues Advisory Committee, to ensure that this perspective is heard and taken into consideration.
Eligibility testing currently occurs in Gladue courts, but LAO will take this advice under consideration for potential future rounds of financial eligibility expansion.
LAO's AJS Working Group and Local Leads will be helping to bring communities and lawyers together, building networks on the ground and increasing the flow of knowledge.
This is an important question that LAO will be exploring. Input will be sought at the local level through the AJS Working Group process, as local leads liaise between communities and the AJS.
Child protection is a priority area. LAO has been focusing on its new services in this area and on raising awareness of its upfront coverage for child welfare matters .LAO is also aware of the need to develop more tools and resources for lawyers.
Over-representation continues to be a priority for LAO and the AJS.
Mental Health Strategy and services for mental health clients
The Mental Health Law committee advised that training on mental health and addictions is extremely important.
Service providers need to be aware of intersecting issues where mental health is involved. An example of this would be a case involving involuntary status where there is domestic violence. An accused person may also be a victim, particularly in long-term care homes where increasing numbers of seniors are being charged with assault. These kinds of issues are surfacing more frequently now.
Persons in the community on Community Treatment Orders (CTOs) tend to be an invisible population. They rarely seek to go before the Consent and Capacity Board (CCB). The issue may be lack of awareness of their rights. One way to address this issue could be to make lawyers more accessible in the community in places like community centres.
Training is a priority focus for the MHS. In spring 2016, LAO delivered three full days of training to legal aid lawyers working in criminal law. In July 2016, LAO delivered the core Mental Health Training Program curriculum, introducing new practice support tools for criminal lawyers and establishing District Leads across the province to lead ongoing training initiatives, support a community of practice, and establish quality improvement as an everyday practice.
This training framework is intended to be adapted to other practice areas.
LAO agrees with the importance of being aware of intersecting issues. The new practice support tools place intersecting issues at the heart of the training and guide counsel in identifying client cues and options, as well as integrating other tools such as the clinic Legal Health Check-Up.
LAO's embedded counsel projects are intended to make lawyers more accessible in the community, in places where clients are more likely to go. This is specifically to make resources available to clients living in the community. LAO has also developed a client satisfaction and legal needs assessment survey specifically for in-patients, which includes questions about access to legal assistance in the community
Domestic Violence Strategy
Domestic Violence Strategy and training
The Family Law committee advised LAO to ensure that certificate lawyers have access to domestic violence awareness training. The training should be mandatory as a panel standard or panel competency, and LAO should accelerate this process as much as possible. LAO has a leadership role to play in this area.
The Aboriginal Issues committee advised that LAO's Gladue panel needs to include a focus on bail; alternatively LAO could consider creating an Indigenous bail panel.
LAO has a role to play in intentionally developing the law on the application of Gladue principles at bail. Creative approaches are needed.
Certificate lawyers on LAO's domestic violence panel will be required to take domestic violence awareness training. This is the next phase of training that will be rolled out by LAO.
LAO agrees that it is important to promote the application of Gladue at bail. This will be one of the area of focus at the Ministry of the Attorney General's Gladue summit in November 2016. LAO has a seat on the organizing committee for this summit.
LAO agrees with this approach, and is supporting it through its test case program.
Prison Law Strategy
The Mental Health Law committee advised that the strategy should include persons in remand custody and persons who are in custody awaiting mental health assessments.
The Family Law committee advised that a focus on youth should form part of LAO's prison law strategy, and that the needs of people held in youth custody facilities should be considered under the strategy.
The Prison Law committee advised that some kinds of advice services for prisoners may be best suited to limited-scope certificates because of the complexity of the issue, the need for a full review of the file, and the intersecting issues that are involved.
The committee advised that telephone advice services for prisoners are problematic due to concerns with privacy and confidentiality.
The number of habeas corpus applications funded by LAO has been increasing, but it can be very difficult to prepare for these and the three hours allowed for under the tariff is often not enough.
The development of the strategy will adopt the perspective that it should include, wherever possible, persons in detention who have not been sentenced.
LAO agrees that youth need to be considered as part of the strategy, and has been consulting on the needs of youth.
All advice on non-test-case prison law services will be considered by LAO as the strategy is developed.
Prison Law Test Case Strategy
The Prison Law committee supported a focus on segregation, noting that youth in segregation are particularly vulnerable and isolated.
Reclassification of prisoners raises issues that could potentially be addressed through a test case. Grievances are important because they often set the stage for a test case. The grievance backlog at some institutions goes back years, and this effectively denies access to the courts.
The Aboriginal Issues committee advised that LAO's prison law and prison law test case strategies should include a priority focus on Indigenous inmates, given their over-representation in the system. There are many issues that affect Indigenous clients that would be appropriate for test case litigation, including issues of classification, denial of programs, separation from family members, and the fact that these inmates are less likely to be granted parole. LAO should not simply assume that the Indigenous perspective will be raised in cases that deal with these issues, and should make sure that it is specifically addressed
Segregation is one of the identified priorities identified in the Prison Law Test Case Strategy.
LAO agrees that these are potential issues for future test cases.
LAO has been applying this perspective through its strategic approach to test case work.
Test case and advocacy work
The Prison Law committee advised of opportunities for LAO to partner with agencies and organizations on test cases. Many of these groups are interested in working with LAO. Working in partnership can help in finding the right test cases and also can help to avoid duplication or undermining of each other's work. Regular communication will be important. Some groups should always be involved if there is a test case that touches on their area of expertise.
The Prison Law committee also advised that public interest agencies can play an important role at inquests. The concerns of the families may or may not be aligned with the issues that affect the broader rights of prisoners. For this reason it is important that LAO is able to fund representation for public interest agencies as well as for families at inquests.
The Aboriginal Issues committee suggested that LAO do an advocacy piece around over-policing as this is a key driver of over-representation.
LAO believes that working in partnership with subject matter experts and having access to their input is a sound approach that can strengthen LAO-supported public interest litigation. Through its Group Application and Test Case Committee (GATCC) Program, LAO encourages this approach.
LAO regularly funds public interest agencies to intervene at Inquests.
LAO has made a submission to the Ministry of Community Safety and Correctional Services regarding the development of A Strategy for a Safer Ontario (police services reforms). The submission , which LAO has posted online, deals with issues that contribute to over-representation.
Other vulberable/underserved client groups
The Prison law committee identified a service gap with respect to people living in rural and remote areas. These people face particular issues around access due to geographical considerations, and fewer services tend to be available in rural communities.
The Family Law, Prison Law and Aboriginal Issues committees identified youth as a vulnerable client group.
The French Language Services committee suggested that LAO may wish to consider low-income Ontarians who are challenged by low literacy skills as a vulnerable client group. Literacy challenges affect all client groups, but a 2015 research report shows that Francophone Ontarians as a whole fall behind their Anglophone counterparts in literacy.
Improving services for clients in rural and remote areas is important to LAO. Collaborations with other service providers, the use of satellite services and expanding opportunities to improve client service utilizing technology are some ways of improving access for these clients.
Youth are being given particular consideration through several of LAO's client strategies. LAO recognizes that youth have unique needs and vulnerabilities.
Language and literacy barriers are recognized as factors that increase client vulnerability and contribute to complexity in providing client services. These factors are taken into account in triaging clients to appropriate services.
Clinic services and funding
Employment law needs were identified by the Clinic Law committee as important for LAO to be aware of. The higher that the financial eligibility thresholds climb, the more likely it is that clients will have employment law and workplace safety issues.
There is a need for an evaluation of clinic transformation initiatives, focusing on the impact of transformation on client services, community boards and community involvement.
The process of advising clinics about the availability of new funding needs to occur as early as possible in the fiscal year, to assist clinics in making decisions.
LAO agrees that as financial eligibility levels increase, the services that clinics provide will evolve to include areas of law like employment law. In March, 2016, LAO funded eight new clinic employment law and Workers Safety Insurance Board (WSIB) initiatives for a total of $1,290,000 per year through the Provincial Fund to Expand Clinic Law Services. Most of these initiatives are partnerships between multiple clinics and involve shared staffing to deliver employment law and WSIB services on a regional or sub-regional basis. LAO and clinics will need to work together to continue expanding clinic law services to meet the needs of newly eligible clients.
It is important to LAO to evaluate funded initiatives to understand their impact and value. Most transformation initiatives are not yet in the implementation phase, meaning that they are not yet delivering client services. Once LAO and clinics participating in transformation agree on each region's implementation plan and client services start to be delivered, an evaluation can be undertaken.
LAO will make best efforts to have this information and provide it to clinics as early in the year as possible.
Family law services
The Family Law committee was concerned about the sustainability of the family law services being offered through the Student Legal Aid Services Societies (SLASS). There is a recognized need and the work of supervised law students has value.
The domestic family tariff is no longer in alignment with the practice of family law. A shift away from trials is occurring, and the LAO tariff needs to be able to respond. LAO could look at whether it is paying less for trials than it used to, and if it is then this could be a source of savings that would make expanding the tariff for summary judgment motions and other matters a cost-neutral change. The tariff should incentivize effective use of conferences. LAO should continue to work with its stakeholders and partners on the best and most effective way to move forward with tariff reform and incentivization.
There is support for articling students, law students and law clerks playing more of a role in family law. If articling students were able to do more, it might enable more family lawyers to hire them. However, there are concerns about what paralegals might do, particularly without supervision. There would be a need for clarity and definition around their role. There would also be a need for more stringent educational requirements for paralegals.
LAO agrees that these are important services, and is exploring options to make the family law services at SLASS sustainable.
LAO has been meeting with the Family Lawyers Association and will take this advice into account in reviewing the domestic family law tariff.
The Criminal Law committee provided advice that the pilot project for mandatory second judicial pre-trials should be evaluated for effectiveness; a second pre-trial is not always necessary and does not always have the desired effect of reducing the trial collapse rate. LAO should also suggest the idea of attendance by telephone as a means of saving time and money, and eliminating delays.
The committee encouraged LAO to share its update on the senior litigator program with the private bar.
The committee suggested that LAO staff lawyers should not be getting involved in cases under s.486 of the Criminal Code because these cases do not properly fall under LAO's mandate and the clients will get representation without legal aid having to be involved. Staff lawyers could be better employed representing people who do not qualify for a certificate; this would be meaningful work to address gaps in access to justice.
The committee also advised that two hours is not enough time for a bail hearing, particularly when the hearing itself takes two hours because every surety has to be cross-examined.
The second judicial pre-trial pilot project, in which LAO is participating, is underway at 15 selected locations. It is a two-year project to implement the new Ontario Court of Justice Judicial Pre-Trial Best Practices, and will be evaluated for effectiveness . The results of the pilot will be used to determine whether LAO funding will be used to expand this coverage across Ontario.
LAO will be posting a public report on the senior litigator program on its website in fall 2016.
LAO is aware of the bar's concerns in this area. However, LAO is involved in very few s.486 cases now. Senior counsel usually become involved in circumstances where it is difficult to find another counsel or the court wants a particular lawyer involved. As suggested by the committee, staff litigators primarily assist clients who are ineligible for a certificate or are hard to serve for other reasons.
LAO is aware of this concern. One of the goals of LAO's Bail Strategy is to tackle practices that lead to prolonged bail hearings.
Immigration and refugee law services
It was suggested that the new panel standards and quality supports can help LAO to reduce its costs, over the longer term, for provision of refugee law services by eliminating the need to do remedial work on cases that have been handled badly.
It was suggested that LAO could reduce its translation costs and address quality issues by moving to a centralized translation service. There would be additional economies of scale if the service was made available across the board and not just to refugee lawyers. Ideally, a centralized translation hub might include not only LAO but also social services, courts, and the police.
LAO continues to monitor the impact of its refugee law supports, including mentorship, on the quality of service and outcomes. LAO is hoping to implement a mandatory billing field in the near future which will require service providers to input outcomes on all refugee and immigration proceedings.
LAO's executive management team approved, on August 17, 2016, a process for identifying a service provider(s) to provide centralized translation services. LAO hopes to implement this service in the Fall/Winter 2016.
Panel management and quality assurance
The Criminal Law committee identified quality service as a very important issue. Quality improvement, rather than a disciplinary emphasis, should be LAO's primary focus. It will be important not to turn lawyers away from legal aid work, or to make it more difficult, from an administrative standpoint, for them to take legal aid cases. At the same time, the quality of publicly funded services to vulnerable clients must be ensured. LAO's quality focus should emphasize file management improvement. Where a lawyer is the subject of several change of solicitor applications it does not necessarily mean that something is wrong, but could be a red flag indicating quality concerns.
The Criminal Law committee also advised that mentoring is linked to quality of service. New panel members should be encouraged to work with mentors, and mentorship could be made a condition for panel membership for some lawyers. LAO could have a senior lawyer randomly contact newer certificate lawyers to ask them how there are doing, and what their strategy is for a particular case.
The Mental Health Law committee suggested that LAO consider consulting on and establishing a specialized panel for youth and mental health. It was noted that the needs of youth are different from those of adults.
The Family Law committee advised that training is a very important component of quality assurance. The committee also suggested that heightened scrutiny be applied where lawyers are working with youth.
The Immigration and Refugee Law committee asked LAO to look at whether the re-empanelment process for the refugee bar may have discouraged some experienced, high quality lawyers from re-applying. There is an access to justice concern if good lawyers have been turned off by the process and have decided not to re-apply.
The Immigration and Refugee Law committee suggested that LAO consider deferring panel removal for lawyers who might benefit from mentorship.
The committee suggested that LAO should be cautious about equating successful outcomes with high quality of legal representation. Other factors can have an impact on whether or not an outcome is successful; for example, there can be tremendous variance depending on which country the client is coming from.
The committee raised the issue of whether it is difficult for clients who do not speak English or French to make complaints to LAO, noting that the LAO website's anonymous ethics and compliance hotline page for reporting quality issues does not appear to be very user-friendly.
LAO has started to develop a plan for a new approach to panel standards that follows the approach recommended by the committee. Under this plan, service standards and practice management expectations will be supported by training and resources that are organized and clearly connected to each area of practice.
Mentorship, including through LAO's Second Chair Program and the availability of support from senior lawyers, will play a key role in the plan.
LAO has received advice from several of the advisory committees about the special needs of youth and the need for additional supports and quality standards for lawyers working with youth, and will follow up on this advice. LAO has been consulting with stakeholders about the needs of youth and is involved with the Cross-Over Youth Project, a four-year pilot project
LAO has no evidence of an access to justice issue for refugee claimants unable to retain high quality legal aid lawyers. LAO has a roster of 350 lawyers many of whom are experienced (5-10 years or more).
LAO takes a remedial approach to panel members when at all possible, including offering mentorship. Panel Standards removals are only initiated in circumstances where the quality of work can reasonably be expected to adversely impact clients, the administrative burden to LAO of adopting a remedial approach is too great, and/or the panel member is non-co-operative.
LAO agrees with this observation. Outcomes are only one factor to be considered in quality standards assessments.
LAO's Refugee & Immigration Division has raised this issue with the Director of Compliance who is responsible for the hotline.
Billing and alternative fee arrangements (AFAs)
The Immigration and Refugee committee suggested that LAO could increase the number of lawyers entering into AFAs by reducing administrative burdens. LAO needs to ensure accountability but should rethink the amount of administrative work that lawyers on AFAs have to do.
The Criminal Law committee suggested that lawyers may not understand how to bill for a second bail hearing or bail variation, which may account for lower levels of uptake of these new services. New calls, in particular, need access to training on proper billing.
One of the intended benefits of AFAs is the reduction of administrative burdens for both lawyers and LAO staff. LAO is committed to a positive AFA experience for lawyers, and will continue to look for improvements to the program.
LAO agrees that training and support for newer lawyers, including training on how to work effectively with LAO, is very important. LAO hosts regular billing seminars for lawyers working in criminal, family and refugee law. Materials are also posted on the LAO website and are updated regularly. LAO has also created a manual for new panel lawyers, the "Road Map for Certificate and Duty Counsel Lawyers", available online at http://www.legalaid.on.ca/en/info/manuals/Welcome-to-LAO-Manual-EN.pdf. The new bail services are not new certificates, but are available enhancers on regular certificates. When the new bail services were rolled out, an "LAO in Brief" communication was issued that explained how to bill for them. A reminder will be included in an upcoming "Better Billing Bulletin" from LAO.
Data collection and transparency
The Mental Health committee advised that the over-representation of Indigenous and racialized children in care is a matter of concern, and that having and sharing data is important to understanding this issue. LAO was encouraged to share data it collects.
The Clinic Law committee noted that there can be vast discrepancies in the way that clinic staff record the provision of services but that the Clinic Information Management System (CIMS) will help to change this. While SLASS will not have access to CIMS, the committee advised that it would be good for SLASS to have access to the new statistics categories that CIMS will be using.
There was interest in whether LAO or clinics are able to track social return on investment as a result of the provision of legal aid and clinic services. An example would be showing how much money was saved as a result of preventing evictions. It was noted that some clinics do this individually.
The Immigration and Refugee Law committee advised LAO to be cautious about moving to a SunShine List type of disclosure of clinic lawyers' salaries and private bar lawyers' earnings from legal aid, citing privacy concerns and concerns that disclosure of this kind on the certificate side could identify specific cases and clients.
LAO shares this concern and is pleased to share its data on First Nation, Métis and Inuit clients
LAO recognizes the value of consistency in reporting for clinic law services provided by both clinics and SLASSs. LAO will consider SLASSs statistical reporting categories once CIMS has been fully implemented across all clinics.
Although LAO does not currently monitor this metric, it is a valuable and concrete way of showing the impact of clinics' work. LAO is in the process of engaging clinics in its environmental scanning, business planning and annual reporting process and part of that engagement will be identifying good news stories, additional metrics and other performance measures arising from clinics' work.
LAO continues to consult on disclosure of information as part of its transparency directive. LAO appreciates the Committee's concerns. No decision has been made with regard to disclosure of private bar legal aid earnings.
Technology collaboration and working with partners
The French Language Services committee noted that making information available and easily accessible online is important, and that this information is in demand.
Collaboration and working with partners
The Immigration and Refugee Law Advisory Committee suggested that LAO consider a joint funding request with a partner, such as the Alliance for Sustainable Legal Aid (ASLA), to seek more federal resources for refugee matters.
The French Language Services committee recommended collaboration between partners as a means of enhancing ability to provide French language services. For example, LAO may be able to leverage the network providing literacy and life literacy training through pilot projects using simple public legal information materials to provide basic "legal literacy" education.
The Mental Health Law committee identified an opportunity to work with law students and get them involved at an early stage. It was suggested that LAO's mental health training could be shared with law students.
Leveraging technology to improve client services and expand access is a priority for LAO. LAO's FLS projects rely on collaboration and, wherever possible, the project partners work to maximize each other's websites.
LAO values this offer and will keep it in mind should funding remain a challenge.
Collaboration is a key component of LAO's strategy for FLS.
LAO welcomes opportunities to engage and interest law students in areas of legal aid practice. LAO's mental health training for staff has been recorded and LAO hopes to post it to the LAO website so that it will be available to lawyers and to law students.