Meeting of Legal Aid Ontario Criminal Law advisory committee on May 15, 2018

Published: May 15, 2018

1. Committee members

John McCamus (Chair), Andrea Anderson, David Bennett, Scott Bergman, Mary Birdsell, Sunny Dhillon, Anthony Doob, François Dulude, Annamaria Enenajor, Tameka Francis, Martin Friedland, Jessyca Greenwood, Shaunna Kelly, Matthew McGarvey, Ralph Steinberg, Faisal Mirza, Akwasi Owusu‑Bempah, Emma Rhodes, Sukhpreet Sangha, Yafet Tewelde, Nana Yanful, Ann Marie Yantz (Legal Aid Ontario Board Liaison)

Guest: Holly Pelvin

Legal Aid Ontario staff attending: Marcus Pratt, Simone Bern, Paula Beard, 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 23, 2017

The minutes of the October 23, 2017, meeting were approved.

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.

Committee members provided the following input and advice, including on existing service gaps and potential priorities. The views expressed do not necessarily reflect the views of every member.

  • Given Legal Aid Ontario’s improved financial situation, a question was raised about whether the suspension of criminal law services for vulnerable accused facing a first conviction would be ending.

  • There was also interest in the potential for an increase to the legal aid tariff, which has not been adjusted since 2015 when the memorandum of understanding between Legal Aid Ontario, the Ministry of the Attorney General and the Criminal Lawyer’ Association came to an end. Talks about a new agreement stalled because the financial situation was too difficult to contemplate a tariff increase.

5. Presentation on pre‑trial custody

Guest presenter Holly Pelvin, a member of Legal Aid Ontario’s Prison Law Advisory Committee, presented her research on pre‑trial custody. The research involved interviews with men and women on remand, as well as with staff, at four provincial correctional institutions. The presentation highlighted research findings of particular interest to the committee.

The important thing to be aware of is that people in remand custody do not make an appointment for their arrest. Few anticipate their arrest on the day that it occurs. This has tremendous implications in terms of the disruptive effect of arrest on their lives. While in police custody, a person is only required to be given their right to counsel. If they do not know who their lawyer is or how to contact their lawyer, they are given the number of the 1‑800 Brydges duty counsel hotline. The Brydges duty counsel will simply advise them not to talk to the police and that someone will be in court for them.

Without a phone call to anyone else on the outside, family members and other members of the arrested person’s network may be unaware of their arrest. There will be no opportunity to make contact until the person arrives at the correctional institution. The real issue here is that calls cannot be made to cellphones from the institution. It means that people are unable to contact their private bar lawyers and other people they need to contact. There is a need for advocacy calling for persons in correctional institutions to be able to make calls to cellphones. Also, calls cannot be transferred, which is a barrier to reaching the person’s lawyer if a receptionist picks up the phone or if there is an automated attendant, in which case the call will be dropped. A person in police lockup has the hope that their lawyer will call them back and be able to reach them, but once at the detention centre this will not happen. This access barrier obviously complicates the bail and remand process. In order to use the Access Defence system, a person needs to be able to set up an appointment with their lawyer, but they are unable to do this if they cannot contact their lawyer. These barriers exist at the structural level.

Over 20 per cent of the people interviewed in this research said that the police used force in arresting them. The injuries reported ranged from minor, such as bruises, to major, such as a seizure or ruptured eardrum. Again, the only help available is from the lawyer, who may only say that they will see the person in court the next day. The contact at the Brydges duty counsel hotline service reported that they do not contact people on behalf of a client, for the reason that they do not want to potentially interfere in an investigation. Private bar lawyers who were contacted said that they would make these contacts for a client, so there is a different level of care available to these clients.

Bail is an area of concentrated focus and mobilization for the committee and the criminal justice system. It is important to understand that, for a person going to a court appearance, this is a 12‑hour day. A person is awakened at five in the morning to await transportation to the courthouse. They are not provided with their medications. They are strip searched and sent in the paddywagon, for a trip that can take anywhere from 15 minutes to two hours, cuffed to two other people. They appear in court in the clothing that they were arrested in; for one woman, this meant a bikini. They exist on the “nutrigrain diet”, in which their lunch is a granola bar. They often miss the evening hot tray, which is served at 4:30, if their transportation does not return them in time for it. This experience of going to court impacts their willingness to go to court unless their appearance there is going to be meaningful. While there are problems with making appearances by video, many people said they preferred video, including for making a plea, to going through this experience.

Regarding the phenomenon of bail limbo, some people, when asked where they were in the bail process, indicated that they had no idea. They did not know if bail had been denied or merely delayed. Some said that they were “keeping it open” on advice of counsel, while waiting, for example, for disclosure.

A final point to be aware of with people in remand custody is how health care shapes the remand process. People often come into the correctional institution with health problems and the institution’s health team may ask the court clerk to delay their appearance until a person can be seen by a doctor. This has ripple effects on the court process and the health providers, in turn, feel frustrated by the Ministry and the courts. There is a need for partnership to eliminate these issues.

6. LAO Bail Strategy and criminal law service update and discussion

The update on Legal Aid Ontario’s Bail Strategy and criminal law services was provided by Legal Aid Ontario’s criminal policy counsel and Bail Strategy lead.

There are a number of Bail Strategy initiatives underway, including the Bail Project that is funded by the Ministry of the Attorney General. Through the Bail Project, Legal Aid Ontario has received funding to hire ten duty counsel bail coordinators to work with ten Crown vettors in bail courts. The project has also enabled Legal Aid Ontario to hire 6 Institutional Duty Counsel. In addition to the six Ministry‑funded positions, Legal Aid Ontario has also placed two Institutional Duty Counsel at the Toronto South Detention Centre.

The official role of the Institutional Duty Counsel is to identify remand issues and to ensure that court appearances are meaningful. There are people languishing in custody who have never had a bail hearing, and the Institutional Duty Counsel are “eyes inside the institution”. In addition to this role, however, they have also begun to play a role in gathering data on non‑bail‑related needs and gaps, and are making referrals, including to local legal clinics, to assist people in addressing these other legal needs. This work connects very directly to the work of Legal Aid Ontario’s Prison Law Strategy. Legal Aid Ontario has been putting together best practices for Institutional Duty Counsel and members were invited to contribute to the list, based on their own observations.

The decision of R. v. Tunney in February was a bail review decision from Newmarket. Tunney is essentially the practical application of the theory and tone in R. v. Antic, and is a big decision that is changing bail practice in Ontario. Tunney was argued by Newmarket’s Manager of Duty Counsel. The decision adopts the “Newmarket Protocol”, which calls for a bifurcated approach in which the justice must decide what is an appropriate release prior to hearing from a surety. Legal Aid Ontario has developed supports and resources in the wake of Tunney, including lunch and learn sessions and the “Tunney practice directive” which has been circulated to the committee.

Legal Aid Ontario continues to work on supports for the private bar, including by addressing issues raised through the billing irritants working group and by working to reduce empanelment hurdles. Legal Aid Ontario is working to develop Youth Criminal Justice Panel Standards and Criminal Mental Health Panel Standards. These standards will be developed in consultation with the private bar and other stakeholders.

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

  • Several members emphasized that video appearances should not be viewed as the answer to a broken bail system. Important things are lost in a video appearance, and the real answer is to fix remand. It was pointed out that guilty pleas, in particular, are problematic if conducted by video because counsel must be properly instructed. The risk of using video for a guilty plea is most acute with a plea by duty counsel because, while private bar counsel may be able to go to the institution to get proper instructions from their client, duty counsel are unable to do this. A private, person to person conversation between counsel and client is essential. If an institutional duty counsel can be present to do a full plea inquiry and obtain instructions, then that changes the conversation and is an acceptable way to proceed.

  • Members saw the institutional duty counsel initiative as a very positive development that can help to alleviate many of the practical problems around remand custody. Just being able to make connections for people is so important. Connecting with their larger profile of issues, including their poverty law needs, is important work and can point to why so many people keep cycling through the system. This is a wonderful initiative that can assist Legal Aid Ontario in understanding remand issues. It is clear that the Institutional Duty Counsel are wearing more hats than was originally anticipated. They will text private bar counsel if they have a client who is unable to make contact. Because counsel in court cannot be reached other than on their cellphones, clients in detention are cut off from their counsel and the institutional duty counsel are invaluable in helping to make these connections.

  • There was interest in obtaining data, when it becomes available, to demonstrate the impact of the decision in Tunney. Legal Aid is to be commended for the initiative that led to Tunney. It will be important to see if this culture change reaches the police, so that fewer people are in bail court. Education for front line officers is necessary but there tends to be little police interest in or awareness of the law of bail. The Ontario Court of Justice tracks the number of people arrested and held for a bail hearing, and so many charges are withdrawn or do not result in a conviction. Ontario has the highest rate of withdrawn charges in Canada. It was noted that senior Crowns have the power to create the culture shift that is necessary, and that some senior Crowns are interested. There are two embedded Crown pilot projects underway in Toronto and Ottawa to determine whether having a Crown at the police station to look at charges before they are laid has an impact.

  • Data is also important to knowing how the law is being applied to young persons. Statistics Canada keeps data on youth charged and not charged, which is the closest correlation that exists to tracking the use of extrajudicial measures under the Youth Criminal Justice Act. Some police services do collect data on their use of extrajudicial measures, but would have to be asked directly.

  • It would be helpful and would save time if a private bar lawyer could have the ability to log on to legal aid from court and see whether a certificate is pending for a client.

  • The wait times for new lawyers to be added to the legal aid panel can be long. This may have something to do with errors in the application process, which can be confusing.

7. Other business

None raised.