Meeting of Legal Aid Ontario Aboriginal Issues advisory committee on October 3, 2018

Published: October 3, 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: Rod Strain, Marcus Pratt, Jessica Wolfe, Jaimi O’Hara, Simone Bern, Keith Taller

2. Welcome and introductions

Legal Aid Ontario’s Vice President, Strategic Planning and Compliance opened the meeting and welcomed those present.

3. Minutes, May 23, 2018

The minutes of the May 23, 2018, meeting were approved.

4. Legal Aid Ontario update slide deck

The Vice President of Strategic Planning and Compliance presented highlights of the Legal Aid Ontario Board Advisory Committees Fall 2018 Meetings: Legal Aid Ontario Updates and Environmental Scan slide deck.

  • A member asked about the Hamilton Justice Collaboratory, specifically whether LAO is aware of, or had worked with, the 3 Fires: the Hamilton, Niagara, and Fort Erie Friendship Centres. LAO will confirm.

5. Bail Strategy Update

The Bail Strategy update was provided by Legal Aid Ontario criminal law Policy Counsel. The strategy is changing the way in which Legal Aid Ontario provides bail services, both through duty counsel (DC) and private lawyers.

The bail review application procedure has been changed for the private bar, so that authorization is now guaranteed, if the lawyer feels the bail review has a medium or strong chance of success, or in the case of a low chance of success, if there is a public interest reason for proceeding. Previously, most clients would have to wait in custody for the legal aid application process to proceed. Ultimately 90% of these applications were authorized. The new process will minimize delay by enabling a lawyer to order the transcript and schedule a bail review that day.

Duty counsel bail reviews are also being encouraged. Legal Aid Ontario has developed criteria, similar to the criteria for private bar authorizations, to determine whether a bail review should be taken forward by duty counsel. Legal aid Ontario is presenting two lunch and learn sessions later this year, encompassing the decision to have a bail review, and the conduct of a bail review.

Legal Aid Ontario has established bail coordinators, working with ten Crown bail vettors, in ten courthouses. Institutional Duty Counsel (IDC) are working at seven correctional institutions to better serve clients in the bail process, and to make bail faster and fairer for clients in custody. 18 months into this initiative, there have been excellent results and services are increasing for these clients.

Legal Aid Ontario is introducing a new in‑custody same‑day application process in court. The process is lawyer driven. A lawyer can ask for an assessment to get a certificate on the same day if they are ready to proceed in court in a meaningful way (i.e. not for an adjournment). The client no longer has to go back to the jail to make an application. The lawyer can complete and present the form to the Legal Aid Ontario Manager of Legal Services (MLS) or designate at the courthouse. The goal is to decrease in‑custody adjournments, and stop clients from bouncing back and forth from court to jail.

Criminal policy counsel indicated she was available for any further questions about this.

  • There was a question about the availability of same-day in-custody assessments in Northeastern and Northwestern Ontario, since the process is lawyer driven. A lawyer at any court will be able to initiate the process; the issue in Northeastern and Northwestern Ontario is that there are fewer lawyers. Legal Aid Ontario is reassessing all in‑custody applications to streamline the process, and a framework will be in place by the spring.

  • There was a question about what the lawyer must be ready to do to initiate the process. The form states “bail hearing or resolution, etc.” There is some discretion on the part of the Manager of Legal Services to account for local practice. There is a requirement to report the result (for example, is the client still in custody?) as a measure of accountability. Legal Aid Ontario is clear that this process is not meant for getting on the record and adjourning.

  • There was a question about dissemination of information concerning this new process. The internal and external communications are being drafted. Frequently Asked Questions, training, and guides will be available by the end of the week. There is also a criminal law page on Legal Aid Ontario’s website that will be going live in the next few weeks, which will also feature this program.

  • LAO is also assessing the viability of trusted intermediary applications. The committee suggested that agents of court be considered as trusted intermediaries.

  • The committee asked whether this would result in more or faster bail reviews. The answer is both—faster, fairer, and more. The committee asked whether this might bring about systemic change such that unreasonable conditions are not placed on the accused. Only a few cases are required to let the Crown know that legal aid is ready to oppose these conditions.

6. Aboriginal Justice Strategy update and discussion

Legal Aid Ontario’s Director of Policy and Strategic Research welcomed interim policy counsel for the Aboriginal Justice Strategy, who provided an update on strategy initiatives and priorities.

Legal Aid Ontario is focusing on a ten-year evaluation of the Aboriginal Justice Strategy, and is interested in feedback from the committee. The strategy began in 2008, and has recommended improvements including on‑reserve services, the Gladue certificate enhancement, the introduction of the Gladue panel with quality standards and resources for lawyers, and cultural competency training, which was developed and rolled out to over 500 staff.

A number of important reports have changed the political landscape since the Aboriginal Justice Strategy began. These include the Iacobucci report, Howard Sapers’ reports on corrections, the report of the Truth and Reconciliation Commission of Canada, and the interim report of the National Inquiry into Missing and Murdered Indigenous Women and Girls. There has also been important case law, including R. v. Jordan and R. v. Antic. It has been established that Indigenous people experience the impact of delay disproportionately.

The number of Indigenous people in custody is increasing, and the impact is greatest for women, girls, and youth. 60% of girls and 40% of women in custody are Indigenous. Case law indicates that Gladue applies in bail but it is not being done correctly. Legal Aid Ontario has been working on material that emphasizes the importance of not doing further harm to indigenous people through the criminal process, and of understanding the impact of colonialism and viewing the criminal record through this lens. This document has been shared with the committee, and feedback is sought.

Legal Aid Ontario will be recommending to the Board an independent third party review of the effectiveness of Gladue funding mechanisms, and geographic or demographic disparities in terms of access. The process is currently piecemeal, funded by Legal Aid Ontario and other justice partners.

Legal Aid Ontario would like to increase uptake of third-party and early intervention child protection certificates. It has been working on ways to increase awareness of these services, and will share its draft outreach materials with the committee.

A project to develop training for Legal Aid Ontario staff assisting Indigenous families in the area of child protection is underway, and consultations will be taking place.

Legal Aid Ontario is making improvements and expansions to the Aboriginal Self‑Identification Question (ASIQ), which will lead to improvements in the way data can be used. With the passing of the Anti‑Racism Act, the Ministry of the Attorney General (MAG) will need to collect more fulsome information about aboriginality. Legal Aid Ontario collects this data and as a leader in the field has been approached about Indigenous justice experiences. The only area of service where ASIQ information is not fully collected is family law. Each new bail initiative has the ASIQ built into it. The ASIQ also formed the basis for Project Rosemary’s race-based question. How to utilize the data, and the repatriation of that data to the community, will be discussed and hopefully addressed in the renewal of the strategy.

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

  • There has been some positive change in the area of bail in Northeastern Ontario. More people are being released, partly due to Justice of the Peace education. Even so, there is a huge gap in what we can expect of a population that has been living so long in disadvantaged conditions—the income gap, the socioenvironmental gap, particularly in the child protection system. There is only so much the criminal justice system can do. The justice system is never going to resolve the problems resulting from systemic failings that clients and communities have lived with for generations. There is a gap there, and we need to look at that gap in a serious way.

  • We need to understand that every step is connected and can lead to dangerous offender status and no parole. Restorative justice programming is the solution—to divert people out of the criminal justice system as early as possible. While we can work to improve bail, we can try to educate the courts about how these things have contributed to overrepresentation of indigenous people. Every submission is an opportunity to educate the courts.

  • It’s not just the criminal justice system, it is children in care, and institutionalization of youth offenders who are still involved in the child welfare system, and exclusion from the school system through suspension and expulsion. What is the data starting with children in care moving through youth in custody moving to the Youth Criminal Justice Act (YCJA) moving to adult offenders? Is there work that looks at this continuum?

  • More outreach and education are needed for the family bar. Criminal courts seem to get priority, at least in Northeastern Ontario, and in the North there is a shortage of court time to begin with. There are few Indigenous lawyers practicing in family law. An equivalent of residential schooling is essentially happening with child protection. There is a distinct disadvantage for people who lack resources for representation, especially in adoption or removal of foster children, and these people really need representation. Also, Children’s Aid Societies have taken to avoiding the court process and are asking people to sign agreements without legal advice.

  • Members discussed self-identification. There is a lot to think about in relation to the Aboriginal Self Identification Question. Who are we serving, who are we missing? Most people indicate that they would most like to identify at the first contact with police. Data is scarce in the family court system, particularly in Northwestern and Northeastern Ontario. A member raised an issue with persons identifying who are not Aboriginal. Legal Aid Ontario is not in a position to make that determination, and its staff and panel lawyers do not question a person’s self‑identification. Another member indicated that the Ontario Federation of Indigenous Friendship Centres (OFIFC), which has 44 court workers across the province, approaches the issue of identification as an agent of the court. Another member advised that if traditional Indigenous principles and values were used from the beginning, it would easily weed out people who are identifying as Indigenous when they are not. A council of elders would provide a validation process. The real solution is community-driven alternative dispute resolution and healing.

  • We have to think about whether we are providing the right service in the right place. Services should not be one size fits all. Things are not the same in a clinic as compared to a duty counsel office, or in Kenora as compared to Toronto.

  • As a player in the criminal justice system LAO has access to more levers than those who have no seat at the table, and is privileged not to be siloed. LAO needs to maximize this opportunity to lead. Perhaps housing family and child welfare legal services at Aboriginal Legal Services (ALS) is the way to go, this model exists elsewhere in the province.

  • Another member discussed the gap between the criminal justice system, which is punitive, and the traditional Indigenous justice system, which is based on love and healing. All justice participants need to commit to training. The judges are key stakeholders; their perspective is important.

  • A member noted the division between family law and child protection law is problematic. In Toronto, Indigenous family law is child protection law.

  • Thought should be given to assisting communities by providing them with funding to address needs.

  • A test case should be considered to make Charter arguments for access to a service akin to the Brydges hotline service for families that are facing child apprehension or being pressured outside of court to sign an agreement. If parents had to be provided with an opportunity to obtain legal advice before apprehension, they would be more likely to reach out to Friendship Centre parenting programs or pursue other options. If people were empowered to assert their rights, Children’s Aid Societies might think twice and take a different approach. It was noted that a help line is available to children in crisis, and the Child Advocate’s Office will intervene in the apprehension, but the child needs to know about the number. More policing is required at a community level. In Australia there is a right to have a member of an accused’s Indigenous community come down to the jail. This may also be worth looking at.

7. Strategic Planning

The Vice President, Strategic Planning and Compliance provided an update on development of the new strategic plan.

Slides 18 and following in the slide deck identify the themes and strategic goals that have emerged from the strategic plan consultation process, on a high level. The strategic goals relate to having a client‑centred focus; engaging staff; emphasizing innovative services; demonstrating value for money; and effective collaborations. A client‑centred focus includes looking at clients’ unique needs and providing solutions for unique communities. It means not expecting all solutions to be the same or making assumptions about what is best for the client. Legal Aid Ontario also wants to collaborate with others to advocate, provide information, share information, and work on systemic reform.

8. Action items

  1. Legal Aid Ontario will provide the committee with the internal and external communications about the in‑custody same‑day application initiative.

  2. Legal Aid Ontario will inform the committee whether 3 Fires was involved in the Hamilton Justice Collaboratory.

  3. Legal Aid Ontario will explore options for a Brydges hotline equivalent or other resource for Indigenous families facing apprehension of their children.

9. Other business

None raised.