Meeting of Legal Aid Ontario Aboriginal Issues advisory committee on May 23, 2018

Published: May 23, 2018

1. Committee members

John McCamus (Chair), Mary Bird, Christa Big Canoe, Paula Corbiere, Sarah Dover, Barbara General, Audrey Gilbeau, Katherine Hensel, Emily Hill, Arthur Huminuk, Tim Hackborn, Christina Ninham, Josh Payer, Marisha Roman, Derek Stephen, Brenda Young, Nancy Cooper (Legal Aid Ontario Board Liaison)

Legal Aid Ontario staff attending: Marcus Pratt, Cassandra Baars, Heather Morgan

2. Welcome and introductions

Chair John McCamus opened the meeting and welcomed those present.

It was noted, for the benefit of new members, that there are nine Board advisory committees which each meet twice yearly. The work of the advisory committees aligns with the business planning cycle at Legal Aid Ontario, which begins in spring each year with the environmental scan process and ends in December when the business plan for the following year is provided to the Ministry of the Attorney General. The advisory committees are asked at the spring meetings to provide advice on environmental factors that should be considered in planning for the next year. In the fall, as ideas for the new business plan are taking shape, Legal Aid Ontario again seeks feedback from the committees. A Board liaison member sits on each committee and the minutes of all advisory committee meetings are received by the Board.

The Chair noted that the minutes of the advisory committees are public, and are posted on the Legal Aid Ontario website along with the names and brief biographies of members. Committee materials and discussions are not considered confidential unless they are clearly identified as such.

3. Minutes, October 13, 2017

The minutes of the October 13, 2017, meeting were approved, subject to correction of a typographical error on page 5.

4. Legal Aid Ontario update slide deck

The Chair presented highlights of the Legal Aid Ontario Board Advisory Committees Spring 2018 Meetings: Legal Aid Ontario Updates and Environmental Scan slide deck. The deck was not presented in its entirety.

5. Aboriginal Justice Strategy update and discussion

The update on Aboriginal Justice Strategy initiatives and priorities was provided by Legal Aid Ontario’s policy counsel, Aboriginal Justice Strategy.

In December 2017 the Board of Legal Aid Ontario requested an evaluation of the first ten years of the Aboriginal Justice Strategy. The Strategy was formally adopted in 2008, and has now completed two five year phases. The evaluation will focus on the strategy’s achievements and lessons learned, and will identify gaps and areas for improvement.

Legal Aid Ontario is also committed to an independent third party review of Gladue report writing services in Ontario. Legal Aid Ontario would like to work with the Ministry of the Attorney General and the Department of Justice Canada, which also fund Gladue report writing services, in order to develop the most comprehensive review possible. The review process is now at the beginning stage, with the development of a paper that focuses on what Legal Aid Ontario hopes to learn. It will be important to ask the right questions and to ensure that the process is not limited.

The Aboriginal Justice Strategy and Legal Aid Ontario’s Human Resources department are designing a child protection training program geared towards legal aid staff who are assisting Indigenous clients. External consultations on training needs will be held in the next few months.

Advice received from the committee at the last meeting was reviewed. The committee suggested Legal Aid Ontario think about the Aboriginal Justice Strategy from the community perspective and at the local level. This has been the approach taken with the strategy’s local leads initiative, which launched in fiscal year 2016‑2017. The initiative has involved district offices appointing local leads to engage with communities. This approach has supported success at the local level, such as through the recent Hamilton Justice Collaboratory, a Boldness project which has engaged community members, clients, and community organizations, and in which six out of 22 sessions included Indigenous content. The experience with local leads has also pointed to areas where there are disconnects and logistical obstacles. The goal will be to revisit these in order to find solutions and focus on what works.

The committee also provided advice at the last meeting to connect with communities about data collection and how it is used. The Aboriginal Justice Strategy agrees with this advice. The strategy has been involved with and has provided recommendations to the Anti‑Racism Directorate, which considers the Aboriginal Justice Strategy to be a leader in collecting Indigenous identity information.

The committee has also provided advice that the strategy focus on the Truth and Reconciliation Commission’s Calls to Action, particularly in relation to over-representation in the criminal justice and child protections systems, and that the strategy connect with Indigenous academics. The strategy has been working to address issues identified in the Calls to Action and this will also figure into the strategy’s renewal process. The strategy will also be connecting and consulting with academics, including through the upcoming Gladue evaluation.

The Aboriginal Justice Strategy makes and maintains connections with Legal Aid Ontario’s other client strategies and with important external stakeholders and partners. The Aboriginal Justice Strategy has connected with the Indigenous Justice Division at the Ministry of the Attorney General to discuss how their work aligns, and to discuss initiatives like the new Community Justice Centres. The Office of the Children’s Lawyer is interested in connecting with the Aboriginal Justice Strategy on the development of new child protection training. The strategy wants to engage with as many communities and organizations around the province as possible.

Ensuring lawyer competency continues to be an area of focus. Gladue training is a gap that Legal Aid Ontario is aware of. Legal Aid Ontario has heard that the five‑hour Gladue enhancement is not enough for lawyers who are thorough, and too much for those who aren’t doing enough. The Law Society of Ontario has an Indigenous Advisory Group that is also concerned with competency. There are some good resources available, including a guide on communicating with Indigenous clients and a 2015 allyship tool kit that aims to assist non‑Indigenous people who wish to engage on Indigenous issues. These resources can be circulated to the committee.

The meeting materials include an update on test case funding provided through Legal Aid Ontario in 2017‑2018 to support cases that raise Indigenous issues. The committee has expressed interest in receiving regular test case updates.

The Committee was invited to provide input on whether the Aboriginal Justice Strategy and the committee itself should continue to use the name “Aboriginal” or whether “Indigenous”, for example, would be better. It was noted that this issue has been raised by the committee in the past and that this may be a good time to revisit it. Language in the United Nations Declaration on the Rights of Indigenous Peoples suggests that “Indigenous” may be a better term, since it is inclusive and allows Indigenous people to define themselves.

Attention was drawn to the fact that the Hamilton Legal Community Clinic’s I AM AFFECTED campaign, which was discussed at the last meeting, has expanded and been renamed I AM COMMITTED.

Committee members provided the following input and advice. The views expressed do not necessarily reflect the views of every member.

  • A large number of families from Six Nations of the Grand River are involved with Children’s Aid in Hamilton, and the Hamilton Justice Collaboratory did not capture input from Six Nations in looking at child welfare matters.

  • Outreach is needed to spread the word about the availability of legal aid certificate coverage for customary care agreements. Members may be able to do some of this outreach, including to lawyers in their area.

  • The upcoming review of Gladue report writing services should engage all actors in the justice system, including judges, and not just focus on the service delivery perspective.

  • In at least some locations, members perceive Gladue reports being used essentially as a “guilty plea funnel”. The review should examine this issue.

  • Many courts no longer rely on Gladue “reports”; they should really be referred to as Gladue “applications”. The review should look at Gladue principles and not just Gladue reports. A narrow approach should not be taken.

  • The review should also look at all Gladue services, and not just those that are funded by legal aid.

  • Care must be taken in choosing a methodology for the Gladue review. Methodology can make a great difference to the outcome. It was suggested that the strategy circulate its proposed methodology to the committee for advice before committing to an approach. There are resources, such as other reports that may be helpful, that the committee can provide.

  • The Community Justice Centres are being developed to respond to needs assessments in each community. It appears that the Community Justice Centre in Toronto will not focus on serving Indigenous communities, due to the services that already exist in Toronto, but the one in Kenora will have an Indigenous focus.

  • The availability of court time is likely influencing effectiveness in implementing Gladue. The availability of more Gladue writers in the north has resulted in better, and more easily accessible, Gladue reports. However, in fly‑in courts, for example, time is at a premium which severely limits opportunities for meaningful testimony. It would be useful to canvass members on the experience in their area, as a means of exploring the impact of the handling of court time on the development of the Aboriginal Justice Strategy and the effectiveness of Gladue.

  • Legal Aid Ontario needs lawyers who are serving Indigenous clients to have a unique level of competency. A distinction should be made between examining what is being done with the Gladue enhancement, which really has more to do with audits of lawyer billing, and the real challenge which is enforcement of the standards. Lawyers now sign an undertaking that they are cognizant of the local services that are available. A further step could be teaming local communities with legal aid’s local leads to provide mandatory training for lawyers acknowledging certificates for Indigenous clients. This would join local communities and services up with the certificate lawyers receiving the training.

  • The application of Gladue principles has not had the success that was initially envisioned. After almost 20 years, there are still judges that disregard Gladue. It would be a good thing If awareness could be raised in time for next year, the twentieth anniversary.

  • Gladue is often not well understood, and understanding is an important piece. Legal Aid Ontario could concentrate on developing an online tool, such as a video, to educate the public on what Gladue is and how it is applied. As a potential model Legal Aid Ontario could refer to a public‑focused video that has been launched by the Human Rights Legal Support Centre; it uses animation and was developed with community and service provider input. There are also examples of community‑based justice education programs that involve elders and justice workers going out to speak in the community about what Gladue is, so that people have a better understanding.

  • Members emphasized the value of having Gladue services delivered through communities themselves.

  • Legal Aid Ontario can help to support a shift in thinking that supports development of community‑based services in line with Call 42 of the Calls to Action, dealing with sovereign justice practices.

  • Legal Aid Ontario could also help to coordinate and foster discussions that link experts such as academics to communities.

  • The National Self‑Represented Litigants Project at the University of Windsor is an example of a partnership between public engagement and the academic community that has produced solid opportunities for learning. Although it is a large‑scale, national project, it is a good model that Legal Aid Ontario could look at when thinking about building bridges and connecting with Indigenous academics.

  • Engaging service users can be difficult when conducting an evaluation, but is a crucial aspect. Consultants responding to legal aid’s request for proposals should be challenged on how they will get feedback from clients. This feedback would not necessarily have to be obtained from across the province, but could be concentrated in areas where legal aid particularly wants to focus.

  • There are issues to be aware of with the coming into force of the new Child, Youth and Family Services Act. These include raising the age to 18 for extended society care. There are new definitions for Indigenous people and communities that may also make things more complicated. There are provisions that speak to representation for Indigenous communities, raising an issue with respect to funding to enable Bands to be represented, since many Bands lack resources. There are matters on which Bands need to have representation, for example where a child is going to be adopted out but the Band has a family placement ready. This is something that will affect the child for the rest of their life. There should be a way for legal aid to consider a Band as a “person” for purposes of providing a certificate; perhaps this could be brought forward as a test case.

  • Members had mixed views on adopting “Indigenous” over “Aboriginal” or “First Nations, “Métis and Inuit”. It was noted that some groups prefer to continue using Aboriginal because it reflects past history, although there is currently a backlash against it. Others now use Indigenous because they work with government funders who seem to be moving to Indigenous. Some members liked the use of Indigenous while others noted that although they may use Indigenous in dealing with funders they always name themselves in talking with their community. The view was expressed that Original Peoples may also be acceptable. While no clear majority preference emerged, one member noted that Legal Aid Ontario’s awareness of the issue is positive.

6. Action items

  1. Legal Aid Ontario will provide the committee with an up to date list of all Aboriginal Justice Strategy local leads.

  2. Legal Aid Ontario will ask the local lead for Hamilton to connect with Six Nations of the Grand River on child welfare, to ensure that the Hamilton Justice Collaboratory is a continuing conversation.

  3. Legal Aid Ontario will circulate information about the availability of certificate coverage for customary care agreements, so that individual committee members may take it back to lawyers in their area to help spread the word that this coverage is available.

  4. Legal Aid Ontario will share the draft terms of reference, as well as the proposed direction and methodology for the independent Gladue review with the committee for input.

  5. Resource materials referred to at the meeting, including the guide on communicating with Indigenous clients and the allyship tool kit, will be forwarded to the committee.

  6. The committee would like to receive updates on relevant test cases on an ongoing basis, and not just at the twiceÑyearly meetings.

  7. Legal Aid Ontario will follow up on the committee’s suggestion that it explore teaming local communities with legal aid’s local leads to provide mandatory training for lawyers acknowledging certificates for Indigenous clients.

7. Other business

None raised.