Meeting of Legal Aid Ontario Criminal Law advisory committee on October 22, 2018

Published: October 22, 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)

Legal Aid Ontario staff attending: Marcus Pratt, Simone Bern, Jessica Wolfe, Paula Beard, Heather Morgan

2. Welcome and introductions

Chair John McCamus opened the meeting and welcomed those present.

3. Minutes, May 15, 2018

The minutes of the May 15, 2018, meeting were approved, subject to a revision to clarify the discussion point about the need for advocacy to ensure inmates can make phone calls to cellphones, in order to be able to contact their private bar counsel and family members.

4. Legal Aid Ontario update slide deck

The Chair presented highlights of the Legal Aid Ontario Board Advisory Committees Fall 2018 Meetings: Legal Aid Ontario Updates and Business Planning slide deck.

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

  • It was noted that the decline in youth charges may also relate to the fact that police are starting to put their Extra‑Judicial Measures programming in place.
  • There was interest in whether Legal Aid Ontario had observed any impact resulting from the Ministry of the Attorney General’s establishment of new legal SWAT teams at courthouses to prosecute cases involving gun crimes. A member noted that in these cases a bail hearing will not happen quickly and private counsel will be required.
  • The committee was interested in Legal Aid Ontario’s collection of demographic data, both race based and Indigenous, and asked to see statistics when these become available.
  • Legal Aid Ontario’s financial commitments to its client strategies are important. The committee was hopeful that the current freeze on new initiatives will not have a lasting impact on the progress of the strategies.
  • The work coming out of the April 2018 Hamilton Justice Collaboratory is potentially very important and should be watched. Some solutions to big overall problems are actually quite small things that most people are unaware of or don’t consider important but which are brought into the light through initiatives like this. An example of how this can work is the idea of the Institutional Duty Counsel, which must have come up years ago although no one ever talked about it; now that the idea has been followed through on, suddenly the Institutional Duty Counsel are revealed as the key. Getting the right people together and then following up to make change happen is important. The committee would be interested in seeing the upcoming report and learning about specific initiatives arising from the Collaboratory. It could also be worthwhile to go back and look again at the 1999 Ontario report of the Criminal Justice Review Committee, which recommended more coordination, including at the local level, between actors in the justice system.
  • The strategic plan for Legal Aid Ontario should take into account the private bar, and Legal Aid Ontario’s relationship with the private bar. Although this relationship is not identified explicitly in the overview slides provided to the committee, it needs to be part of effective collaboration and transparency, and followed up on as the plan is implemented.
  • Advice was provided that raising the age of protection to include 16 and 17 year olds in the Child, Youth and Family Services Act should not have an impact on Legal Aid Ontario as parents are not entitled to counsel and there does not appear to be a role for legal aid.

5. Appeals reconsideration policy

A member raised Legal Aid Ontario’s policy on reconsidering an appeal certificate refusal decision, where the matter in question has been sent back by the Ontario Court of Appeal. The case of R. v. Josipovic, 2018 ONCA 1999, appears to suggest that legal aid’s stance is that once an application is refused this is to be treated by the Court as a final decision, not subject to reconsideration. It was pointed out that reconsideration would not oblige legal aid to make a different decision, but rather just to take another look. If Legal Aid Ontario does not have a blanket policy to refuse reconsideration of a refusal in these circumstances, this should be clarified for the Court of Appeal.

Legal Aid Ontario’s Director, Policy and Strategic Research, indicated that Legal Aid Ontario’s position is not that it will never reconsider a refusal if it is sent back by the Court of Appeal. There is no policy of blanket rejection. A matter will be reconsidered by legal aid, but only if new information is available or new circumstances have arisen that may result in a different decision on an application. A case by case assessment determines whether or not there is new information or circumstances. It was pointed out that the test for the Court of Appeal on making a s.684 order is whether it would be in the interest of justice. Although there is overlap, the Court applies a different and broader test than the test for legal aid, which focuses on the appeal’s likelihood of success. Legal Aid Ontario can follow up with the Court to ensure that its reconsideration policy is clearly understood.

6. Criminal law services 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.

The Bail Strategy’s Bail Coordinators and Institutional Duty Counsel are all in place. In addition to their duty counsel work, the Bail Coordinators work behind the scenes to proactively address bail system issues. New data shows that the Institutional Duty Counsel are not just doing bail work. They are providing summary legal advice, helping unrepresented people, and connecting clients with their private bar counsel. They are working with mainly vulnerable clients, including those who are mentally ill, or who have been unable to contact counsel and have no idea what is going on with their case. The connection between Institutional Duty Counsel and private counsel has proven to be a major benefit, and advice on how best to get the word out to more private counsel would be appreciated.

A new webpage for criminal lawyers can be accessed by Googling “Legal Aid Ontario for criminal lawyers”. This webpage is meant to provide the bar with information in one place about Legal Aid Ontario’s criminal law pilots, initiatives, and other relevant information.

Two lunch and learn sessions aimed at facilitating duty counsel bail reviews are being presented in October and will also be recorded and made available to the private bar on LAO LAW’s bail resources section. These sessions are step‑by‑step bail review resources.

The committee has received a copy of a comprehensive and in‑depth analysis of Gladue and bail prepared by policy counsel for the Aboriginal Justice Strategy. The paper will be the basis for developing training for duty counsel that will also be available to the private bar.

As of September 17th, Legal Aid Ontario has introduced a three‑month pilot project to provide immediate automatic authorization for a bail review where counsel is of the view that there is a medium or strong chance of success, or where there is a public interest reason to proceed. As of this week, the number of bail review applications received has gone from 9 to 14. Legal Aid Ontario will be surveying counsel afterwards, to learn what happened at the bail reviews. The bail review survey will likely be sent out in December, or in January if the pilot is extended beyond three months.

In another pilot project, Legal Aid Ontario is supporting s.684 applications to assign counsel and will immediately issue a certificate for these applications in murder or dangerous offender appeals.

A new same-day eligibility assessment for in-custody applicants whose lawyer is in court and ready to proceed on a matter in a meaningful way has gone live. This new streamlined process is meant to eliminate adjournments to obtain a decision on a certificate application.

Other streamlining initiatives are also underway or planned. There is a pilot project at the Toronto South Detention Centre that enables counsel to make applications for clients. A reassessment of all in-custody application processes has begun, with the goal of decreasing or eliminating adjournments for decisions on applications. Conceptualization and development of an online application for out of custody clients is in the initial stages. An update will be provided at the spring meeting.

Other new initiatives under consideration include looking at the feasibility of in‑house transcriptionists for bail reviews and other time‑sensitive processes, looking at the potential for a mental health enhancement for non‑block fee matters set down for trial, and notifying counsel when an accused has made an application in their name.

As of July 2018, mentors are no longer required for new panel applications in the Greater Toronto Area. A new online form for empanelment is being piloted in the Greater Toronto Area.

Legal Aid Ontario is phasing out its Alternative Fee Arrangement pilot.

Work is ongoing on the development of new criminal mental health and youth criminal panel standards. Many people have been assisting Legal Aid Ontario and providing input from around the province. An important component will be making sure that supports for the private bar are in place. Steering committee and working group meetings will start to be set up in the next few weeks.

Legal Aid Ontario is refocusing on its discretionary certificates for vulnerable clients. These certificates have been available since December 2016 but there has not been significant uptake. Front line staff have been reminded and encouraged to identify vulnerable clients who qualify for these certificates.

A draft and confidential risk to liberty policy has been circulated to members of the committee for consultation purposes. It is not to be circulated beyond the committee but feedback from all members is sought. Members were asked to email policy counsel with their feedback on the draft policy.

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

  • The Institutional Duty Counsel do great work. They provide tremendous assistance to private bar counsel, and act as point persons for the private bar. For example, if a mentally ill client in custody refuses to attend court for an important appearance, the Institutional Duty Counsel will talk to the client, and to mental health workers at the institution, to make arrangements for the client’s appearance. This is incredibly valuable.
  • There is a need to get the word out to the private bar about what the Institutional Duty Counsel can do. Their presence and role may not be sufficiently well known. Lawyers who are unaware of them are not able to rely on them. Putting up signage in the bail courts and in the cells may help: “Is your client in custody? Is there a problem bringing them to court? Please see duty counsel if you need to contact somebody in the jail.”
  • The Ministry of the Attorney General should be more informed about the importance and application of Gladue at bail; perhaps Legal Aid Ontario’s paper could be shared with them. The paper may benefit from the addition of more specific examples of bail conditions that should not be included.
  • Tracking the results of the bail review authorization pilot will be important. A bail review authorization covers ten hours, so four days in custody effectively pays for a bail review. The pilot does not have to have a high success rate in order to be cost‑effective from a public purse perspective. Lawyers are unlikely to bring bail reviews that have a low chance of success, since bail reviews are a huge amount of work and most private bar lawyers dislike doing them.
  • Same-day in‑custody assessments cannot be accessed at court locations where there is no duty counsel available that day to take the application forms from counsel. While this is more of a risk at smaller courthouses, it happened at Old City Hall courthouse one day last week.
  • Out-of-custody youth face barriers accessing certificates. By law, they have to be in school until 3:00 or 3:30, leaving only a brief window for them to apply for legal aid. This narrow window becomes even harder for them to access if their parents are working. It can result in delays of one or even two months.
  • While working with trusted intermediaries can help to increase access, the use of non‑lawyer intermediaries can give rise to a situation where a referral is made and the client’s lawyer is not onboard or has never even met the client. This initiative would need to dovetail with the initiative to ensure counsel is notified where an accused makes an application in their name.
  • Members were interested in any follow up coming out of the Alternative Fee Arrangement pilot, such as a report on what was learned from the pilot and whether or not Legal aid Ontario may be willing to experiment with alternative payment methods again in the future.
  • There was a question about the process for accessing the discretionary certificates for vulnerable clients. If private bar counsel has a client who meets the criteria, they should approach duty counsel and advise them of this.
  • There was a discussion about the confidential draft risk to liberty policy that had been circulated to members. The focus of the policy is improving client service. It was noted that getting the details right will be paramount. There are a lot of questions to be looked at. One problem to be aware of is that there is difficulty in getting charge screening forms from the crown; sometimes it is difficult to obtain even a synopsis. Also, crown positions can change, and there are risks involved in pressing crowns for a position. Crown position should be just one factor. Members were invited to send further thoughts on the draft policy to Legal Aid Ontario’s criminal policy counsel.

7. Action items

  1. At the next meeting Legal Aid Ontario will provide the committee with demographic statistics collected through both Project Rosemary (for race‑based client data) and the Aboriginal Self Identification Question (for Indigenous client data).
  2. Legal Aid Ontario will circulate its draft Racialized Communities Strategy paper to interested committee members.
  3. Legal Aid Ontario will share reports and next steps arising from the Hamilton Justice Collaboratory with the committee.
  4. Legal Aid Ontario will follow up with the Ontario Court of Appeal to ensure that its reconsideration policy for appeal matters is clearly understood.
  5. Legal Aid Ontario will update the committee on any reports or follow up coming out of the Alternative Fee Arrangement pilot project.

8. Other business

None raised.