Board advisory committees
Minutes of Legal Aid Ontario Aboriginal issues advisory committee, on September 21, 2015
John McCamus (Chair); Mary Bird; Christa Big Canoe; Paula Corbiere; Sarah Dover; Margaret Froh; Katherine Hensel; Arthur Huminuk; Jason LeBlanc; Stacia Loft; Christina Ninham; Celina Reitberger; Karen Restoule; Brenda Young; Tim Murphy (LAO Board liaison).
1. Welcome and introductions
Chair John McCamus opened the meeting and welcomed those present.
2. Minutes, March 3, 2015
The minutes of the March 3, 2015 meeting were approved.
3. LAO business planning slide deck and discussion
The Chair provided an overview of the LAO business planning slide deck, Update on current and future LAO initiatives. At this point in the year, LAO is getting closer to drafting the following year’s business plan, and the slide deck outlines several LAO’s ideas for that new plan. Advice from the committee would be welcome, particularly on major initiatives like eligibility expansion and LAO’s priority client strategies.
Expansion of eligibility for legal aid services has been the biggest new development at LAO in the past year. The 2014 post-election provincial budget included a significant financial commitment to eligibility expansion, and additional funding in the 2015 budget means that the province has committed to four years of eligibility increases. The new money is intended to support the provision of services to newly eligible clients. In addition to annual six per cent financial eligibility increases for all legal aid services, LAO has also implemented legal eligibility expansion. The impact of the eligibility increases on the issuance of legal aid certificates is shown in a series of charts in the presentation.
Following an extensive consultation process, new funding has been allocated to legal clinics and Student Legal Aid Services Societies to support eligibility expansion. A higher proportion of new funding will go to clinics with a low-income population that has increased the most. LAO also continues to support clinics’ transformation initiatives.
LAO continues to work on its priority client strategies, as follows:
The first was the Aboriginal Justice Strategy (AJS), which has been established for a number of years.
The Mental Health Strategy (MHS) is coming to the LAO Board for approval in October, and is expected be made public soon afterwards. Work is underway on several initiatives related to the MHS, including the new mental health appeals program.
A consultation paper on developing LAO’s Domestic Violence Strategy (DVS) has been posted on the LAO website. LAO has also been focusing on providing domestic violence awareness training to its staff; 88 per cent of staff have receiving training.
LAO has a number of initiatives underway to promote French language services, and these have received positive feedback from the province.
Other areas of focus for LAO include addressing systemic issues related to bail, continuing to sharpen the focus of LAO’s support for test case work through its Group Application and Test Case Committee (GATCC), and embarking on a planning process with the prison law community in relation to prison law services.
LAO’s next business plan, which will be for fiscal year 2016/17, will be submitted to the province by the end of the calendar year. The new plan will take a number of environmental factors into account, including the fiscal situation, provincial priorities which intersect with LAO’s work, and client and service trends. A significant trend continues to be the overall decline in criminal cases filed in the Ontario court system, which coincides with a drop in the number of criminal certificates issued by LAO, although expanded eligibility, particularly for first time criminal accused, has resulted in additional new certificates.
LAO’s direction and likely priorities for 2016/17 will likely prioritize continuing to implement expanded eligibility and to evaluate the impact of the expansion initiatives. If funding is available, there may be potential for additional expansion initiatives to be introduced.
Additional likely priorities include developing the next steps for LAO’s client strategies, contributing to the Attorney General’s Justice Round Table initiative, focusing on increasing transparency, and exploring the potential for tariff reform.
LAO will also continue to work on a strategy for addressing bail system issues. LAO’s Director General, Policy and Strategic Research, said that although bail has not been identified by the Ministry of the Attorney General as an initial area of focus for its criminal justice round table, LAO and justice system stakeholders including the John Howard Society of Ontario and Canadian Civil Liberties Association believe that addressing systemic bail issues is critically important. LAO is looking at taking a more aggressive approach to bail problems, through such means as expanded eligibility for bail services, bail reviews, test cases, Gladue at bail hearings, and a potential “bail blitz” approach. Bail system issues have particular implications for First Nation, Métis and Inuit clients across the province. LAO will be talking with the advisory committee and others as it works on this strategy.
Committee members provided input and advice as follows:
On the ground, the family law area has seen the biggest impact of expanded eligibility. In some areas there has been a noticeable increase in the use of independent legal advice (ILA) for child welfare matters.
Members supported LAO’s plan to focus on bail issues. They noted the disproportionate impact of these issues on First Nation, Métis and Inuit accused as well as the fact that more incarcerated people are in remand than serving actual sentences in Ontario. This is also true in Manitoba. If one separated northern and southern Ontario statistics, northern Ontario’s numbers would likely be worse than Manitoba’s. Restrictive bail conditions tend to have a discriminatory effect, are frequently treatment-oriented, and are often culturally inappropriate. Also, the emphasis placed on sureties in the bail process does not take into account the socio-economic realities of life for most First Nation, Métis and Inuit. There is a need for an approach to bail that is meaningful and non-discriminatory. LAO was advised to proceed carefully with the bail strategy, to focus on the discriminatory impact on First Nation, Métis and Inuit clients, and not to frame the strategy in the context of specific cases at the outset.
LAO could consider organizing a “bail blitz” type of approach to sentence appeals. It is not difficult to appeal a sentence on the basis of Gladue, particularly in the North, and some lawyers would be willing to take on these appeals on a pro bono basis.
Tariff, coverage and case management issues exist in the child protection area. Crown wardship trials can last six weeks and ought to be case-managed like Big Case Management (BCM) trials. Too many pre-trial conferences can stretch a matter out for so long that by the time the trial takes place, the child may be considered to have been settled with a foster family and therefore is not likely to be returned. First Nations are usually unrepresented at child welfare trials, and are the only party there that does not have publicly funded counsel.
4. Aboriginal Justice Strategy (AJS) update and discussion
LAO’s Aboriginal Justice Strategy Policy Counsel and Operational Business Analyst updated the committee on AJS initiatives. As noted, LAO continues to monitor the financial impact of expanded eligibility to determine whether further legal eligibility expansion is possible. If further initiatives are introduced, there are two additional areas where LAO has heard that expansion would be beneficial:
- assisting with the record suspension (former pardons) process
- issuing certificates for Aboriginal and Treaty rights (i.e., harvesting rights).
LAO is interested in hearing about other gaps that need to be filled.
Reviewing and updating LAO’s Gladue panel standards is a priority for the AJS in 2015/16. In order to be successful, new Gladue standards will need to be:
- rooted in awareness of local services and local practices
- detailed enough to hold panel members accountable, but also incorporate flexibility
- resource-based, providing access to supports and best practices. The resources that are currently available focus on the law and do not touch on non-legal aspects such as cultural competency.
Proceeding first with the Gladue standards, where there is already a precedent, will be helpful to break the ice. LAO is aware that there is also a need for child protection panel standards, and will be reaching out to the committee as it works on a framework for introducing standards and making more resources available in this area as well.
LAO is developing cultural competency training for staff. It will consist of an online training module followed up by an in-person session. LAO is working with local partners and is canvassing community leaders to speak at the in-person sessions.
Other priorities for the AJS this year include developing local models for delivering legal aid services to communities, and improving relationships and engagement with communities. LAO has been working on building structures and frameworks to encourage communication. Documents have been circulated to the committee, supplemental to the meeting package, outlining LAO’s community engagement work across the province as well as its staff engagement activities, and detailing all LAO-funded services, programs and staff positions that connect with the AJS.
Committee members provided input and advice as follows:
There is a significant service gap in accessibility of on-call telephone advice for First Nation, Métis and Inuit clients on child welfare matters. This service could potentially be modeled on the Brydges duty counsel advice line. There are cases where child welfare authorities have told people to “sign this, and we won’t take your kids.” People need to be able to call someone, and right now there is no one that they can talk to who is not in a position of conflict. Having a phone number could make a difference.
Over-representation in child welfare matters is a very serious problem. Aboriginal children make up 80 per cent of the docket in any jurisdiction where a reserve is nearby. There could be room here for test case litigation. The Aboriginal-specific provisions of the Child and Family Services Act (CFSA) are frequently ignored and the least intrusive measures are often inadequately considered. An argument based on a Charter right to access to advice could also potentially be pursued through a test case.
Members emphasized the importance of effective panel standards for lawyers doing both child welfare and criminal work for First Nation, Métis and Inuit clients. Competency, including cultural competency, is an issue for both panels. CFSA matters are not vigorously litigated, and many lawyers representing parents have no knowledge of the Act’s Aboriginal-specific provisions. While members agreed that there are practical reasons for proceeding to “break the ice” with the Gladue standards first (because a framework and structure for these standards already exists), the need on the child welfare side is acute. The removal or threatened removal of a child is even more serious than being arrested, and resource gaps are more serious in the child welfare area than in criminal law. LAO was encouraged to move forward with both Gladue and CFSA standards simultaneously.
As LAO develops its resources and training programs, it should keep in mind the need to ensure opportunities to keep building on the work that has been done. It is also important to make sure that materials and resources are updated and added to as needed in order to keep them current.
It was suggested that LAO should not have to re-invent the wheel when it comes to providing online access to cultural training and awareness resources. For example, Cancer Care Ontario has released internet-based Aboriginal Relationship and Cultural Competency Training, as part of its new Aboriginal Cancer Strategy. The training consists of nine online modules, developed in collaboration with First Nation, Métis and Inuit advisors. As only one of the nine training modules is cancer-specific, a lot of material could likely be useful to LAO.
The bi-annual committee meetings are excellent for providing information about what LAO is doing, but more in-depth and meaningful feedback could be provided if time was made available for follow-up conversations about key issues raised at the meetings. It often seems as if only the surface is scratched on some issues. Perhaps one-hour teleconferences for subcommittees or working groups could be scheduled for more in-depth discussions of, for example, the top three high-priority issues.
5. Consultation on advisory committee public postings
Members were asked for feedback on a proposal to post information about the advisory committees on the LAO website. Recently LAO received a freedom of information request for past minutes of one of the advisory committees and posted them on its website, as is usual with freedom of information requests. The Board is now considering, subject to feedback from the committees, making all committee minutes and other information about the committees available to the public on a going-forward basis. The information would be posted on a dedicated webpage on the site and would be likely to include the committee terms of reference, meeting materials such as the slide deck, and a public version of the meeting minutes that would include members’ names.
Members felt that creating public versions of committee minutes and materials is a good idea that speaks well of LAO and the work done by the committee, and could result in other stakeholders finding things of value and reaching out. There are good reasons for sharing committee information, although some information needs to be protected. In preparing the public materials and minutes, LAO should follow the usual approaches to privacy and information protection.
One concern that was raised was that information flow to the committee from LAO needs to be preserved. There is information in the committee meeting materials (for example, related to the development of the LAO business plan) that LAO would not be likely to include in a public document. It should also be kept in mind that the advice the committees provide is advice intended for the LAO Board. These concerns could be addressed if the meeting materials were structured to show clearly what information is intended to be made public and what cannot be made public. LAO should also circulate the proposed public versions of minutes to the committee prior to posting them.
6. Action items
LAO will follow up on the committee’s proposal regarding access to on-call telephone advice on CFSA matters for First Nation, Métis and Inuit clients.
Committee members were asked to identify their top three issues from the meeting for further discussion with LAO (follow-up teleconference to be arranged).
7. Other business