Evaluation of Criminal Law Office
Second Year Executive Summary
Posted on: April 13 /2007
With funding assistance from the Federal government, Legal Aid Ontario (LAO) has funded three Criminal Law Offices (CLOs). These CLOs are staff offices with a mandate to supplement the judicare (certificate) service delivered by the private bar. They provide criminal representation to financially eligible accused in Barrie, Brampton and Ottawa.
LAO has committed to ensuring that a major (three-year) independent evaluation of these CLOs is undertaken and made available to the general public. Previous reports ("First Interim Progress Report: Evaluation of the Criminal Staff Offices" and the "First Year Report: Evaluation of Criminal Staff Offices") are available on the LAO web site.
Both the processes leading to and the formats of the First and Second year reports are very similar. Both are based on intensive and extensive rounds of interviews in each of the sites, focusing on judges, crown attorneys, duty counsel, non-governmental organizations, the private bar, CLO staff, and others who have had experience working with the CLOs and observing their impacts on clients and the criminal justice system. The evaluation team also spent considerable time working with LAO staff to extract a considerably wider range of data from Legal Files, the main automated data base utilized by the CLOs and LAO to record, store, and report data on CLO operations. In addition, the evaluation obtained and analyzed additional important data from the PeopleSoft system that records information on certificates that are issued to clients to cover legal aid services provided by the private bar. As well, the evaluation has obtained data from the LAO financial systems, from a special database maintained locally at the Brampton CLO and from a database of form 50's for certificate cases from the Barrie CLO.
Focus and Purpose of this Interim Report
All of this information considerably extends the information available to the evaluation and which is presented in this report. However, it is important to note this is an interim report-for a number of reasons.
- First, the CLOs, as organizations, are still developing and it will not be until the final year of the evaluation that they can be observed and evaluated after having reached a mature and fully operational state.
- Second, despite major efforts by LAO to respond to the evaluation's observations and recommendations about the shortcomings of data being collected by the CLOs to describe their operations, many of those efforts did not bear fruit until the very end of the second year of operation-in particular those related to improving the LAO automated information system (Legal Files). Data necessary to address certain important issues will therefore not be available until the third year.
- Third, efforts continue to obtain information from sources outside LAO-in particular from the private bar describing comparable work of private law offices and from the courts. At this time, it is unclear whether or not this information will be available for the final year three report.
Finally, certain of the challenges have continued from the First to the Second Year Report. In a few areas, the Second Year Report has not been able to extend its depth of analysis beyond that of the First Year Report-and in those areas, the Second Year Report has had to be content with exploring whether the findings and trends have continued through the second year of operations. A major purpose of this report is thus to identify the gaps in information and the priority issues that must be addressed in the next and final report.
Interim Findings and Issues
CLO Objectives and Direction
Chapter 2 describes in detail the four main groups of CLO objectives and comments on the degree to which these objectives have been clearly articulated and have been incorporated into ongoing planning and management structures within each CLO and in their communications with the various stakeholders, within each CLO community. Key observations and conclusions include:
Clarity and Understanding of Objectives
- Although the different objectives of the CLOs have been elaborated, there is still ambiguity within LAO (CLO directors and staff; the Area Directors and the LAO head office) regarding the priorities among the objectives, and the specific manner in which those priorities should be operationalized (these include the desired mix of specific certificate and non-certificate cases, optimum caseload levels, and priorities to be assigned to law reform and community legal education activities)
- Different CLOs seem to have placed different priorities on different objectives.
- Different stakeholder groups have different understandings of both what the CLO objectives are and what they perceive that they should be.
- The analysis also showed some major differences in key areas of operations among the three CLOs. These areas include the mix of certificate vs. non-certificate cases, the offence types of cases handled, the way in which staff are assigned to cases, and the frequency with which different processes are used to resolve cases. This diversity may be beneficial. On the other hand, the diversity seems to have evolved from practice, not from explicit policy.
(Recommendation) A clarification of policy and operational direction by LAO in consultation with the CLOs would be beneficial.
Areas in Which Specific Direction Required
- Clarifying the role and mandate of the CLOs is not clear to many criminal justice officials at their local sites.
- Clarifying the role of LAO personnel in the planning and managing of the CLOs.
- Establishing caseload priorities, specifically respect to the extent to which CLOs should be specializing in mental heath, Indigenous and youth cases;
- Clarifying the extent to which the CLOs should be handling certificate cases;
- Determining the proportion of the CLWs time that should be allocated to systemic law reform/ outreach vs. support for individual case work?
- Clarifying how responsibilities should be allocated among all CLO lawyer, CLW and administrative staff for achieving expectations and responsibilities with respect to outreach and other non-specific casework activities
- Develop quality assurance and supervision of client services;
- Addressing budgetary and human resources issues.
- Clarifying working hours and lieu time of lawyers, CLWs and administrative staff
- Clarify the CLO's role in test case litigation, community legal education and networking with other providers of legal and social services;
- Interaction with other providers of legal services to low income citizens - Area director, duty counsel, community clinics; and judicare providers.
- The CLOs should continue to be encouraged to work more closely with local NGOs, such as the Canadian Mental Health Association, Native Courtworkers, the Elizabeth Fry Society, and groups concerned with youth justice in developing local and regional agendas that address policing and the administration of justice as they impact on these vulnerable communities.
Each of the next three Chapters describes CLO activities, the challenges that have been faced, and the successes that have been achieved with respect to substantive objectives.
Levels of Service and Meeting Unmet Needs
Chapter 3 focuses on overall objectives related to providing better access to legal services for clients on individual cases.
Numbers of Clients Served
- >Caseloads (i.e. services provided to clients for specific court cases) have continued to grow in each CLO, to the point where the CLOs are approaching (or in some cases, have reached) capacity. Brampton and Barrie are currently handling caseloads above those of Ottawa.
Improving Client Access to services at Critical Stages in the Litigation Process
- Criminal justice officials at the three sites are generally of the view that the CLOs are filling a gap in their regions, providing assistance to accused who would otherwise have been unrepresented, and therefore would have either put the court and its officers through a difficult and time-consuming trial process, or would have pled guilty even though there may have been a viable defence and triable issues. The Brampton and Barrie CLOs have effectively targeted non certificate accused and Barrie has developed a successful outreach program to reach both Indigenous and mentally disabled accused.
- The CLOs generally continue to meet their target groups of clients. For instance, Barrie has had considerable success in meeting the needs of mentally challenged and aboriginal accused persons, while Brampton and Ottawa focus on the needs of non-certificate clients generally.
Quality of Service Provided
- The evidence available, both from interviews and from the various automated information systems show no significant differences between the CLO certificate work and that of the private bar with respect to:
- Assignment of lawyers to cases
- Time spent on cases (if anything, the CLOs spend fewer hours)
-The time elapsed from opening to closing of certificate files
- In Barrie and Brampton there is no evidence to support the concern that the CLOs would be more likely to enter a guilty plea for certificate cases than would the private bar. Whether or not the current higher percent in Ottawa of certificate cases continues will be monitored during the next year of the evaluation.
- CJS officials (e.g. judges, Crowns, duty counsel) were mostly of the view that the quality of the CLOs' work was for the types of cases they handle of the same or, in some instances, higher quality than that of the local private bar.
Providing Services to Specific Groups of Client
- The report provides considerable information on the types of clients currently accessing and receiving CLO services, including: gender, language, ethnic origin, types of offences, and whether the cases exhibit special legal issues such as problems with disclosure or layered legal issues such as immigration, refugee or domestic disputes.
- There are significant differences among the CLOs with respect to the certificate/ non-certificate split of their caseloads.
- In Brampton and Ottawa, caseloads are overwhelmingly made up of "non-certificate cases".
- In Barrie, certificate cases represent the majority-and include in-custody and returning clients and accused with mental health issues.
Important Issue related to Non-certificate cases
- The high percents of non-certificate cases handled by the Brampton and Ottawa CLOs which are withdrawn or stayed strongly support the argument for having legal assistance available in such cases. (Previous research in this area suggests that if they had continued to be unrepresented, a high proportion of these accused would have pled guilty and been convicted.) Judges and Crowns in all three communities have expressed the need for the CLOs to take on more of the unrepresented accused, many of whom are believed to be financially eligible for legal aid services.
(Recommendation) That recognition be given to the demonstrated need for legal services for clients who meet the financial need criteria, but do not meet other criteria for obtaining legal aid assistance in Ontario.
Non-Casework (Outreach and Law Reform) Objectives
Chapter 4 (Systemic Law Reform) focuses on enhancing services to potential clients and client groups through non-case specific, outreach and law reform activities (and through work on specific cases to achieve system reform objectives).
Appropriate Variation in Overall Strategy
- Each of the CLOs has to-date chosen strategies for addressing the non-casework objectives that have been tailored to their own particular environment and specific objectives. This has resulted in differences among the strategies chosen. Examples during the last two years included special efforts: in Barrie, to work closely with mental health and Native courtworkers and to place a priority on representing mentally disabled accused and Aboriginal accused; in Brampton, to address systemic challenges related to the flow of cases through the Peel courthouse and to represent the mentally disabled; in Ottawa, to continue to develop links with their target communities.
- All CLOs made significant outreach efforts towards establishing the desired contacts and partnerships with the community during the first year. Unfortunately during the second year, the CLO staff--particularly the CLWs--have only been able to allocate limited time to non-casework activities. Community outreach, law reform and community legal education have all suffered. This is particularly the case in Brampton where the loss of their experienced CLW (since replaced) saw a decrease in law reform and community legal education activities. A similar situation developed in Ottawa because other litigation support and administrative work demands significantly reduced the time available to the CLW to undertake outreach and law reform activities.
Recommendation) That LAO examine the role of the CLWs, particularly the allocations of their time and priorities among law reform and outreach activities, administrative duties (e.g. entering data in Legal Files) and litigation support activities.
Operational Impact on different elements and stakeholder groups within the CJS
Chapter 5 focuses on issues related to the impact of the CLOs on the institutions, processes and workloads of the different key stakeholder groups within criminal justice system.
Impact on the Court System
- This year and last the evaluation was most interested in interviewing people who had actually interacted on cases with the CLOs in the larger court environment. Therefore, the bulk of interviewees were Criminal Justice System (CJS) respondents - Crowns, judges, duty counsel, other court workers, and NGO workers who serve the courts' "clients". The officials who spoke to us from these stakeholder groups are overwhelmingly in favour of the existence of the CLO in their area, probably more so now than they were at the time it was just starting.
Impact on the Work of the Bar
- Each of the CLOs has been implemented in an environment of moderately increasing trends in criminal certificates issued.
- In our interviews last year, most members of the private bar were opposed to the CLOs. Although there continues to be considerable resistance to the CLOs from the private bar, there is some evidence that the resistance is easing-at least to a limited extent.
- The majority perception is that the CLOs have not had a significant impact on the certificate work available to the bar. CLO certificate caseloads represent less than 1% of certificates issued to the private bar in Brampton and Ottawa. However, in Barrie the percentage is considerably higher, at 9%.
Value for Money
Chapter 6 focuses on a number of process objectives-each of which impacts on value of services provided and the degree to which the CLO represents an effective and efficient organization for achieving the previous substantive objectives. Specific Process Objectives relate to: leadership and direction, organization and responsibilities, tactics and procedures, resources, and support systems. In most of these areas, CLO performance was adequate or more than adequate.
Overall Value of Services Provided
- The report provides estimates of the "imputed" fees earned by the CLOs for non-certificate and certificate cases. The report also provides expenditure budgets for the CLOs. As would be expected during the early years of a legal office, the imputed fees are still less than the expenses. (Although the average costs per case have fallen quite steadily over the past year.) However, the evaluation will continue to monitor the value-for money aspects of the CLOs.
- At the same time, the CLOs tend to handle individual cases within roughly the same (or fewer) number of hours as compared to the private bar.
- The more quickly the CLO can get "on the record" for an accused, the greater the benefits for both the accused and the courts.
(Recommendation) LAO should begin addressing ways in which referrals can be streamlined. Particular attention should be devoted to the low tolerance which many accused have for processes which may seem simple to others.
Resources and Support Systems
- The CLOs feel that they are nearing capacity.
(Recommendation) Guidelines regarding what constitutes "capacity" should be developed, and the impact this will have in client services.
- The staff of each of the CLOs have received positive feedback from CJS officials interviewed.
- Legal Files has provided considerable information to support CLO management and this evaluation. However, there are still a number of technical and organizational areas in which improvements are still required to ensure a cost-effective method for collection of certain types of data. Some of these improvements apply to Legal Files procedures per se, but others apply to the communications and networking systems that support this multi-site system. As well, issues remain as to what role Legal Files should play in the supporting day-to-day management and operations of CLO.
(Recommendation) LAO should undertake a review of the role of Legal Files in the operational and planning needs of LAO with respect to the CLOs, and to define the changes in organizational and technical procedures that are needed to ensure that it fulfils that role.