Meeting of Legal Aid Ontario Prison Law advisory committee on April 30, 2018
Published: April 30, 2018
1. Committee members
John McCamus (Chair), Nikki Browne, Sean Ellacott, Kathy Ferreira, Melissa Atkinson, Elizabeth Hughes, Adelina Iftene, Dave Jarvis, Lisa Kerr, Amy Lavoie, Lisa Loader, Diana Majury, Michael Mandelcorn, Allan Manson, Ryan Mason, Clara McGregor, Ann McRae, Les Morley, Paula Osmok, Kim Pate, Holly Pelvin, Howard Sapers, Saeed Selvam, Simon Wallace, James McNee (Legal Aid Ontario Board Liaison)
Legal Aid Ontario staff attending: Marcus Pratt, Keith Taller, Simone Bern, 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 25, 2017
The minutes of the October 25, 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.
5. Bail Strategy update
The update on Legal Aid Ontario’s Bail Strategy was provided by Legal Aid Ontario’s Criminal Law Policy Counsel and Bail Strategy lead.
The Legal Aid Ontario‑Ministry of the Attorney General Bail Project uses Ministry funding for 26 new positions, including 16 legal aid positions, to improve the bail process. A Ministry Crown vettor is paired with a legal aid bail coordinator at each of ten project site courthouses. Additionally, the project funds institutional legal aid duty counsel on site at six provincial correctional institutions. These institutional duty counsel are streamlining the bail process and making it work better. They facilitate video bails, and this has a significant positive impact for vulnerable accused who do not like being transported to court. They fill gaps, such as making contact with sureties for accused awaiting a bail hearing. They are also acting as “eyes on the inside” for Legal Aid Ontario, identifying client needs including legal needs that fall outside of bail or criminal law generally.
A data collection process has recently been developed for the institutional duty counsel, specifically to document the other kinds of issues that faced in‑custody accused. It has now been in use for about two weeks and after three to four months results will be reviewed.
Another important aspect of the Bail Strategy involves improving access to bail reviews as a means of changing bail culture. Duty counsel don’t do bail reviews as a matter of course, but the duty counsel best practices bail court project at the 1000 Finch courthouse in Toronto is changing that. Here, duty counsel can provide access to a bail review within ten business days. The approach to bail has changed at 1000 Finch, from “what is guaranteed to get the client out of custody” to “what is an appropriate bail release”. Legal Aid Ontario would like to see the 1000 Finch approach implemented province‑wide.
R. v. Tunney is a recent case that does for bail process what R. v. Antic did for bail theory. It endorses Legal Aid Ontario’s “Newmarket protocol” bail submissions which call for a bifurcated approach to bail in which the justice must decide what is an appropriate release, prior to hearing from a surety. Legal Aid Ontario has been following up on this major success with lunch and learns and tutorials on the Tunney decision.
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.
Support was expressed for expansion of the Institutional Duty Counsel model to more correctional institutions, if at all possible.
The importance of the role of the Institutional Duty Counsel in facilitating access to private bar counsel was raised. This is another important function that they fill, since the barriers people face in remand custody often result in difficulty contacting their lawyer.
The time‑limited nature of Ministry support for the existing Institutional Duty Counsel program was identified as a concern.
6. Prison Law Strategy update and discussion
The update on development of the Prison Law Strategy was provided by Legal Aid Ontario’s Prison Law Strategy lead.
Legal Aid Ontario’s services for persons in correctional custody currently focus on certificates for federal parole and to a lesser extent for disciplinary matters. Duty counsel and legal aid workers visit federal institutions primarily to represent clients at Major Court and take applications. The Queen’s Prison Law Clinic provides a suite of valuable services to inmates of Kinston‑area penitentiaries. The new Institutional Duty Counsel Program is currently the only legal aid program focused on provincial institutions. Given that the majority of inmates are in provincial custody, and specifically in remand custody, the current framework clearly points to a gap in services.
Current environmental factors include, notably, the passing of new provincial correctional reform legislation, Bill 6. The Correctional Health Care Secretariat is conducting a consultation on the future of health care services in provincial institutions. The Honourable Justice David Cole and Professor Kelly Hannah‑Moffat have been appointed as Special Reviewer and Special Expert, respectively, to the provincial government on implementation of the Jahn public interest remedies and on human rights and segregation.
Strategy development activities were reviewed. Consultations and site visits have been taking place and an emphasis has been placed on getting input from around the province and from those who deal with people in incarceration every day. Consultations have emphasized that there is unmet need at every level: youth custody; provincial custody; immigration detention; and federal custody. It is also apparent that existing services are uneven and not well publicized. Even applying for a certificate is confusing for a person who is in custody.
Another important gap in services arises from the fact that many unmet needs of people in custody do not fall under the banner of “prison law”. People bring their existing needs and vulnerabilities with them when they enter custody, and incarceration tends to exacerbate those needs and issues as well as to give rise to new ones. There is a broad array of needs, including in relation to the impact of incarceration on housing, income support, and immigration status. A common fear of women in custody is that they will lose their children. Access to legal advice and information was identified by many as a very significant unmet need.
Three major themes have been emerging as priorities for the new strategy: increasing internal knowledge and building capacity; improving legal aid services for persons in correctional custody; and addressing needs through advocacy, partnerships, outreach and collaboration.
It has become apparent that the success of the strategy will depend on building relationships and partnerships. Another important plank is recognition that one size does not fit all, and that local responses are key. The strategy has been building linkages with important partners and this has been bringing good results. Legal Aid Ontario is being invited to different tables, for example to make submissions to the provincial government’s consultation on correctional health care transformation.
Proposed guiding principles for the strategy were reviewed with the committee. They include prioritization of initiatives that address rights issues, being responsive to local needs, relationship‑building and local partnerships, increasing access, and early assistance and intervention to reduce recidivism, support reintegration, and keep vulnerable persons from entering the correctional system in the first place.
A first draft of the strategy paper is being prepared for submission to the Board in June. However strategy development needs to be an interactive process, with input from committee members. Drafts will be shared and comments sought.
A list of proposed initiatives was shared with the committee, including some initiatives that are already taking shape on the ground. Some of these are onsite lawyer initiatives, involving partnerships with legal clinics, agencies, and Legal Aid Ontario’s Institutional Duty Counsel.
Committee members provided the following input and advice. The views expressed do not necessarily reflect the views of every member.
Legal Aid Ontario’s plans for the strategy as outlined in the materials are a huge undertaking, and in the nature of a five-year program. Efforts should be made to keep all of them moving along, even if it is gradually.
The effort made to reach out and focus on local needs, including in often overlooked areas of the province, as a bedrock of the strategy will contribute to its success.
The geographic limitations of coverage by Queen’s Prison Law Clinic result in a service gap: there are two federal institutions, Fenbrook (Beaver Creek) and Grand Valley, that are outside of the clinic’s catchment area and are unable to access their services.
Most clinics are mandated to provide services within a specific geographic catchment area. This raises an issue when, for example, someone who is incarcerated in Kingston has a housing issue elsewhere in the province. Capacity and levels of service often vary between clinics as well. One way to address gaps is to create regional networks of clinics that can coordinate with each other.
The principles guiding the strategy are important. A strong rehabilitative, restorative focus for service provision is fully supported under Legal Aid Ontario’s mandate, and the strategy’s guiding principles should include language that unambiguously reflects this.
Think about overlaps and opportunities for collaboration. This will be especially important when trying to address the bigger picture that goes beyond individuals who are currently legal aid clients. All ministries and agencies are interested in collaboration. It is important to “de‑silo”. Think about what is being done in youth justice, with its emphasis on diversion.
“Recognition of the importance of local service providers and local partnerships” is an important guiding principle. The language should be further strengthened to reflect that services should be provided in the community by the community, where possible.
The strategy should include a focus on older offenders. Some will die in custody. An aging population raises a variety of issues, including estate issues, that do not immediately come to mind when people think about correctional law.
Younger adults also have specific needs and should be considered.
The strategy should recognize specific needs and issues related to gender. Trans people, for example, have different needs.
The use of people‑first language where possible is preferable. Speaking of people who are incarcerated is less stigmatizing than referring to inmates, offenders, or even prisoners.
The strategy’s focus on education and training should include providing legal clinics or workshops for the staff at correctional institutions. It would be helpful for staff to be able to learn about and understand the role of legal aid, and the legal basis for access to justice advocacy on behalf of inmates, in an environment that is removed from the heat of the moment of case‑specific circumstances.
Provincial parole should be a focus for the strategy. People either don’t know about its availability at all or they are bewildered by the process. Provincial parole would be a good place to have law students providing support. Public legal education materials would also be useful. For example, it would be good if CLEO published a booklet on provincial parole. Online resources could also be explored.
There may be opportunities to expand legal services in provincial institutions under Bill 6. There are many young lawyers who would be enthusiastic about doing this work.
Members indicated that they would appreciate opportunities to provide further input to strategy development and implementation. Some expressed the view that twice-yearly meetings will be inadequate, particularly at this stage of the strategy. If three formal committee meetings per year are not workable, informal sessions, including meetings held by teleconference, should be considered. There should also be regular information exchanges. The possibility of having the committee divide into task groups to work on different issues was also raised.
7. Environmental scan discussion
Two federal bills that are currently before Parliament can be expected to have an impact on the work of Legal Aid Ontario in designing and delivering services to persons in custody. Bill C‑56 deals with the use of segregation. Bill C‑75 includes bail initiatives.
The upcoming provincial election is an environmental factor. In briefing new ministers and deputies, LAO will need to consider whether to be proactive in raising its priorities at the outset of these discussions.
The April 2018 provincial pre‑election budget includes support for anti‑discrimination, housing and mental health. These pieces are all important to Legal Aid Ontario in terms of providing off‑ramps and additional resources.
The debate about the future of health care in provincial correctional facilities and specifically the question of whether to enhance or transfer service delivery may ultimately raise legal issues. “All Ontarians” includes those who are in custody. Bill 6 uses words like equity, equality, and equivalency.
When Bill 6 is fully proclaimed there will be a tremendous learning curve for legal aid service providers and correctional staff alike. There will be new systems, different timeframes, new disclosure requirements and new levels of oversight and accountability. Under the new legislation there will be an increase in the need for, and the opportunity to provide, legal advice and assistance.
8. Action items
Legal Aid Ontario will provide additional opportunities, between meetings, for the committee to provide input to the development of the Prison Law Strategy, and will share its draft strategy paper.
9. Other business