Board advisory committees
Meeting of Legal Aid Ontario criminal law advisory committee on September 26, 2016
John McCamus (Chair), David Berg, Scott Bergman, Norm Boxall, Anthony Doob, Paul Dray, Martin Friedland, Shaunna Kelly, Matthew McGarvey, Sandy Simpson, Ralph Steinberg, James McNee (LAO Board Liaison)
1. Welcome and introductions
The Chair opened the meeting and welcomed those present.
2. Minutes, March 16, 2016
The minutes of the March 16, 2016 meeting were approved.
3. LAO business planning slide deck and discussion
The Chair presented highlights of the LAO Board Advisory Committees Fall 2016 Meetings: LAO updates and proposed priorities for 2017‑2018 slide deck.
Legal Aid Ontario (LAO) is currently facing around a $20 million operating deficit. Increased demand for refugee services is one reason for this. Another reason is that expenditures for expanded eligibility have exceeded the funding that LAO is receiving for the expansion initiative.
Eligibility expansion itself has been very positive. The province has invested $96 million in expanding eligibility for legal aid over the past three years, and LAO anticipates that this support will continue. The third six percent increase to financial eligibility came into effect on April 1, 2016, and 1.4 million Ontarians are now eligible for legal aid, up from one million prior to the first increase. A proportional share of the new funding has been allocated to legal clinics to address the impact of demographic changes and to implement collaborative initiatives to deliver new services. In 2015, LAO also expanded the types of cases that are eligible for coverage. There have been more of these cases than LAO anticipated. LAO issued 24 percent more certificates in fiscal year 2015‑2016 than in the previous year, and this was mostly as a result of eligibility expansion. The biggest certificate increases were in criminal law, for minor offences, and in domestic family law.
LAO continues to issue certificates at a high rate, exceeding its budget by 415 certificates a day. Over time, as new funding for eligibility comes in, the problem should correct itself if legal eligibility does not increase again. However, the next 18 months present a challenge.
The LAO Board Advisory Committees Fall 2016 Meetings: LAO updates and proposed priorities for 2017‑2018 slide deck highlights news related to LAO’s client strategies. LAO’s first client strategy was the Aboriginal Justice Strategy, which continues to bring new initiatives forward to the Board each year. The Mental Health Strategy was launched in spring 2016, and has been focusing on the development of training for staff counsel. In time, this training, which was partly developed with the cooperation of the Mental Health Commission of Canada, will be made available to the private bar and to other legal aid plans.
LAO has consulted extensively on the development of a Domestic Violence Strategy, and has provided domestic violence awareness training to staff. The training is now being rolled out to per diem duty counsel and clinics.
LAO has developed a Bail strategy, and will be posting the strategy paper on its website in the near future. Work is also underway on the development of a strategy for prison law. LAO’s newest strategy is for racialized communities, and consultations are underway.
In the area of family law, LAO is working with the Motherisk Commission to provide assistance to eligible parents who were affected by flawed Motherisk hair analysis results. LAO has been invited to provide input on changes to the Family Law Rules, dealing with costs, and made a submission to the Family Legal Services Review. Three years ago, LAO received new funding from the province of $10 million per year for three years to improve family law services, and now, with the funding coming to an end, is exploring options for the new services that were introduced with this one-time funding.
LAO continues to make efforts to secure additional funding to meet the increased demand for refugee services, which is responsible for a $10 million shortfall. The federal government has already provided some additional funding. LAO is meeting with members of parliament and staff in the office of the Minister of Immigration, and is also having conversations with the Immigration and Refugee Board about potentially implementing abbreviated, less costly processes for some kinds of matters.
The province has introduced a major initiative on transparency and open government. Agencies are required to provide the government with a list of the data that they create or collect, and LAO has done this. LAO makes a great deal of information available to the public, including its memorandum of understanding with the Ministry of the Attorney General, and the minutes of the advisory committees. LAO believes that there is a benefit in having more government information publicly available.
LAO has been working to make more effective use of technology. In September, LAO hosted the annual meeting of Canadian legal aid plans, and afterwards hosted a “Wired Justice” conference that featured a keynote address by Roger Smith and presentations from experts around the world by Skype. In Canada, British Columbia is leading the way with its interactive "MyLawBC" program, which can generate documentation such as a separation agreement based on a series of questions. LAO is following these developments with interest and is working on its own plan, although it cannot afford to implement a similar system at this time.
LAO’s plan for 2017‑2018 is to continue to develop and implement this year’s priority initiatives, including financial eligibility and LAO’s client strategies.
Members provided input and advice. The views expressed do not necessarily reflect the views of every member:
The open government initiative is interesting. It is difficult to gauge how great an appetite the public at large, as opposed to researchers and other parts of government, has for this kind of information.
Providing funding to LAO to make more active use of technology could solve a lot of problems, particularly in the area of family law. It is more difficult to see how use of an online interactive system like the one in British Columbia would work in criminal law, however.
Members encouraged LAO to look at outcomes of the new legal eligibility certificates to see, for example, whether fewer people are being incarcerated or are obtaining criminal records as a result of having access to full representation. The financial pressures that LAO is facing should cause LAO to look at whether these new certificates are making a real difference and whether they represent the best use of LAO’s funds. There is so much unmet need for legal services in Ontario that a case could be made that this funding should be used for other kinds of cases if the outcomes for these clients are no different than they would be with duty counsel services.
There are only three possible responses to LAO’s financial problems; one response would be to reduce services, another would be to become more efficient, and the third would be to obtain additional funding. The committee has advocated for legal eligibility expansion and it would be a mistake for LAO to reduce services given the value in people having legal representation when they are prosecuted by the state. Providing legal representation is good for the system, and also saves money in the system, by reducing the cost of incarceration. The focus that LAO has placed on increasing efficiency in recent years suggests that LAO has already become more efficient. This leaves the third option. LAO should inform the federal government that their refugee policy changes have had direct financial consequences for LAO.
LAO should think about developing a plan to address the impact that a successful collective bargaining campaign by LAO staff lawyers would be likely to have on the cost of delivering staff services.
It is difficult for LAO to make long-term plans and to meet its budget every year when the new funding that it receives is time-limited in nature, or is linked to special projects rather than to sustaining LAO’s basic operations. The public sees that LAO received increased funding and wonders how it could have financial problems, without recognizing that “flash in the pan” increases are not the same as a commitment to long-term sustainability. Targeted new funding has enabled LAO to make important improvements, but LAO also needs stable funding that will help it to make clear decisions about how its services are to be maintained. No one even knows whether the legal aid tariff will continue to increase, or whether it will be frozen for the next ten years.
Bail hearing creep is a significant problem; even a consent hearing can now take up to two hours. LAO is to be commended for its best practices bail court initiative.
The provision of duty counsel support for video bail appearances from the Toronto South Detention Centre is an excellent idea, and one which can hopefully be expanded to other locations. If duty counsel support is available at the detention centre, it will allow more cases to be resolved, and cases will move more quickly, which will help to save money.
4. Criminal law update and discussion
LAO’s Director, Policy and Strategic Research, provided the committee with an update on LAO’s work in the area of criminal law services.
LAO has been taking on a broader role in providing advice to the government, including through a number of submissions that have focused on the needs of vulnerable communities. Recently LAO made submissions to the Ministry of Community Safety and Correctional Services on the development of a Strategy for a Safer Ontario. LAO’s Strategy for a Safer Ontario submissions have been posted online.
LAO is supporting the Ontario Court of Justice’s Criminal Modernization Project by funding mandatory second judicial pre-trials at pilot locations. The Ontario Court of Justice has data indicating that more matters are resolving and trial collapse rates are dropping as a result of mandatory second judicial pre-trials, particularly in Ottawa and Brampton. LAO is also involved in a pilot project that will involve having duty counsel present at the Toronto South Detention Centre to support effective video bail appearances at the College Park and Metro West courthouses in Toronto. LAO is also in discussions around supporting video access in the Southwest region, so that women at the Vanier institution in Milton will not have to travel to College Park in Toronto for appearances.
LAO has been providing mental health training to its staff criminal lawyers through the Mental Health Strategy. A resource manual has also been produced. The training will be made available to other legal aid plans and to the private bar following the staff rollout.
LAO has been providing new tools and supports to duty counsel, including the plea comprehension inquiry form that has been shared with the committee. The form is being piloted in several courts and has been well received. LAO has also introduced an immigration advice hotline for staff and per diem duty counsel.
LAO’s Senior Counsel program is now well established with 13 criminal litigators, including three who work in LAO’s Major Case Management Office, and there are no plans to further expand the program. A report on the program will be posted on LAO’s website in the near future. The senior counsel are handling more trials, providing representation to vulnerable and hard-to-serve clients who would otherwise be unrepresented. They are taking fewer s.486.3 appointments.
LAO has piloted the use of licensed paralegals in four criminal courthouses, The paralegals are assisting duty counsel as part of duty counsel office teams. A second phase of the pilot will involve another five staff members who have paralegal licences.
Members provided input and advice. The views expressed do not necessarily reflect the views of every member:
Counsel should be able to appear at mandatory second judicial pre-trials by telephone. This would be more efficient, save travel time, and encourage take-up by defence counsel. The aim is to have everyone in place to make a decision on that day, but there is no reason why this cannot happen over the telephone, or by Skype.
LAO’s plea comprehension inquiry form is well done and will be very useful. Some counsel have developed their own version of a form or checklist but may like to use this one. The form is very detailed, and that is a plus. The only problem will be going through it in a timely manner, since duty counsel will be under pressure from courts to go through it quickly. It might be helpful if the form included space for duty counsel to include one or two sentences about the facts making out the elements of the offence, as this kind of information would not be remembered later on and having it on record would be an added protection for duty counsel. LAO may want to consider sharing their form with LawPRO.
There are some issues relating to LAO’s five-hour Gladue enhancement that should be looked at. The number of clients who self-identify as First Nation, Métis and Inuit has been increasing. It would be interesting to see how these numbers compare with the number of Gladue block fee enhancements that are billed to LAO, and the number of Gladue submissions being made.
5. Action items
LAO will bring to the attention of the Ontario Court of Justice the committee’s suggestion that defence counsel should be able to participate by telephone at mandatory second judicial pre-trials.
LAO will follow up on the question of how the Gladue block fee enhancement is being used.
6. Other business