Board advisory committees

Meeting of the Legal Aid Ontario criminal law advisory committee on October 14, 2015

Committee members

John McCamus (Chair); David Berg; Scott Bergman; Norm Boxall; Anthony Doob; Paul Dray; Evan Flewelling; Martin Friedland; Shaunna Kelly; Matthew McGarvey; Sandy Simpson; Ralph Steinberg; Jacqueline Tasca; Michelle Haigh (LAO Board liaison)

1. Welcome and introductions

The Chair opened the meeting and welcomed those present.

On a motion, the committee moved to have the minutes express the committee’s appreciation for the contributions to legal aid of LAO’s Director General, Policy & Strategic Research over the past 20 years. The committee wished to congratulate him on his new position as Executive Director of the Law Commission of Ontario, and to wish him well.

2. Minutes, March 12, 2015

Subject to an amendment requested, the minutes of the March 12, 2015 meeting were approved. The amendment requested was on page four, to clarify that “some, but not all, members agreed that the ability of staff litigators to assist clients who would not be eligible for certificate coverage because they are financially ineligible or do not meet the loss of liberty test is a positive thing.”

3. Report on the Attorney General’s criminal justice round table meeting; update on the LAO Mental Health Strategy (MHS)

LAO policy counsel leading the development of LAO’s Mental Health Strategy reported to the committee on the September meeting of the criminal justice round table, and provided an update on LAO’s MHS.

The Attorney General has established a general round table and two specialty tables, one focused on criminal law and one on family law.

The first criminal law table meeting was held in September and was focused on mental health. In addition to LAO, the attendees included representatives of the judiciary, legal clinics and groups including the John Howard Society and the Elizabeth Fry Society. The Criminal Lawyers’ Association was also represented.

Some strong themes emerged from the meeting. The group discussed expanding the definition of mental illness; moving away from serious or persistent mental illness as the criterion for diversion; the impact of bail system issues on mentally ill accused; the need to modernize or revisit the Crown’s diversion policy; and the need to establish baseline policies across the province to address the variability that exists at different courthouses in regard to eligibility for diversion, bail, wellness or addiction courts and so on.

The next step for the Criminal Justice Table will be the appointment of two co-chairs, who will establish a working group to explore the themes raised at the first meeting. The next meeting is scheduled for November 16, 2015.

The MHS blueprint is expected to be made public later this year. Pre-release consultations are underway. The strategy is built around the three pillars of advocacy, increasing the accessibility of services, and sustainability.

A significant portion of LAO’s client base has mental illness or addiction issues, and it will be important to ensure that every lawyer has training and competency to work with these clients.

4. LAO business planning slide deck and discussion

The Chair presented highlights of the LAO slide deck. The first part of the deck provides updates on LAO initiatives, and the second part looks ahead to planning for 2016/17.

The biggest story for LAO continues to be the government’s support for increased eligibility for legal aid services. The business case submitted to the government by LAO called for eligibility to be expanded to the low-income measure over an eight-to-10-year period.

The government committed to the first three years of increases in the 2014 post-election budget, and a commitment to a fifth year followed in the 2015 budget.

In order to be eligible for the new funding, LAO must spend it on new clients or new types of cases.

In addition to two increases to the income thresholds since November 2014, LAO has also introduced expanded services. The deck sets out the changes that have been made to eligibility and their impact on certificate issuance.

The uptake has been excellent, and LAO anticipates a 20 per cent increase in certificates issued this fiscal year, which should bring the total to about 100,000.

Legal clinics have also received funding to support expanded eligibility, following a consultation process with the clinics on allocation of the new money within the clinic system.

A number of other initiatives are also underway at LAO. LAO will continue to support the Attorney General’s round table process, and also continues to support clinic-led transformation projects. Both LAO and the Queen’s Prison Law Clinic have been looking to improve and enhance client services through prison law initiatives, and improvements have been made to the process for supporting test cases through the LAO Group Application and Test Case Committee (GATCC).

In the past year, the Aboriginal Justice Strategy (AJS), which was the first of LAO’s priority client strategies, obtained additional funding to expand access to Gladue report writing services across the province. A new round of cultural competency training for staff is also being developed through the AJS.

In the meantime, LAO has embarked on developing a Domestic Violence Strategy (DVS). A consultation paper on development of this strategy can be accessed on the LAO website.

LAO has also been working to improve its provision of French Language Services.

In planning for the year ahead, LAO must take into account provincial priorities, the fiscal environment, and client and service trends. The priorities established for the Attorney General in the Premier’s mandate letter, summarized in the slide deck, align well with LAO’s own priorities. The government has committed a total of $154 million to LAO for expanded eligibility, a commitment that will add $67 million to LAO’s base budget in the fourth year. At the same time, LAO and the province are facing fiscal challenges. The province has embarked on a program review process to identify potential savings.

One trend that LAO has been tracking for some time now has been the decline in the number of criminal charges received in courts. The Chair noted that Professor Tony Doob had made a presentation to the LAO Board on this subject at the last Board retreat. The trend is seen across the western world, and it is not obvious that the decline should be traced directly to the demographic decline in the number of young males. Other factors also come into play, including police behaviour and use of discretion in charging.

Professor Doob observed that reported crime rates and the number of cases going into the Ontario Court of Justice are going down, but the number of appearances per case is on the rise. Based on data current to March 2015:

  • adult cases are down by 18 per cent but the number of appearances is up by 6.6 per cent.
  • youth cases are down by 40 per cent but the number of appearances is up by 7 per cent.

The conclusion to be drawn is that courts are becoming less efficient.

Other client and service trends were also summarized. The number of child protection proceedings is down, but family law certificates are increasing. Refugee law certificates dropped steeply after new federal refugee legislation came into effect in 2012. The numbers are now starting to increase and may reach 7,500 this year.

Continuing to implement and consult on expanded eligibility will be a priority for LAO in 2016/17. Whether or not a second round of legal eligibility increases will be possible will depend on a study of the financial impact of the first round of increases.

LAO will also continue to work on its priority client strategies in the year to come. Other potential initiatives for next year include a focus on transparency and an examination of the potential for tariff reform.

5. Criminal law services discussion

LAO’s Acting Director General, Policy and Strategic Research, introduced the discussion, noting that in expanding legal eligibility for criminal law services, LAO focused on moving beyond the liberty or “probability of prison” test. The initiatives expanded coverage to:

  • first-time accused who are members of vulnerable groups
  • accused facing certain secondary consequences such as loss of a job and
  • accused who need assistance with a bail variation, second bail hearing or bail review.

LAO’s Director of Business Intelligence and Statistics provided information about the impact of the eligibility changes. Data is now available up to the end of September 2015. With only four months of data available since the June implementation of expanded legal eligibility, these early day show that the real increase has been seen in the number of certificates issued to first offenders on minor cases. Expanded financial eligibility, on its own, has not had a significant impact in increasing the number of criminal law certificates. There has not been a big change in the number of certificates issued for serious offences, likely because LAO already issued these certificates in most cases.

There was a question about LAO’s progress towards the benchmark of the low-income poverty line for financial eligibility (the Low Income Measure, or LIM). The LAO Director of Business Intelligence and Statistics explained as follows:

  • For single applicants, the process will require 10 years of annual six per cent increases.

  • Families of two or more will reach the eligibility benchmark more quickly, within five to seven years.

  • Prior to the first increase in November 2014, there were approximately two million Ontarians below the LIM poverty line. Of these, one million would have been eligible for legal aid. As of April 2016, 1.4 to 1.5 million low-income Ontarians will be eligible.

  • LAO is working with the 2011 LIM table, but LIM does increase every year with inflation. In the future, therefore, LAO would like to be able to tie financial eligibility to inflation, as Quebec has recently done.

An introduction to LAO’s next priority client strategy, the Racialized Communities Strategy (RCS), was provided by LAO Policy Counsel, who was co-lead in developing it. She noted that many of the issues faced by racialized communities are similar to those faced by Aboriginal communities. The RCS will follow the model of LAO’s other client strategies, with preliminary consultations feeding into the development of a consultation paper. Some preliminary meetings have taken place, and LAO has already worked on one initiative to support the strategy—a submission to the province on the practice of carding. Timelines for the submission were very tight but, following Board approval, LAO hopes to share its submission with stakeholders.

LAO’s Acting Director General, Policy and Strategic Research, provided a summary of LAO’s draft background paper on bail, and asked for feedback from the committee. The paper outlines the current problems with the bail system, explains how those problems affect LAO’s low-income and vulnerable clients, and identifies some things that LAO is doing, or could introduce as future initiatives, to address bail system issues.

Members provided input and advice as follows:

  • There was interest in how expanded eligibility is assisting Aboriginal clients. LAO was advised to watch these numbers closely, and to consider flexibility in issuing certificates if the numbers are not increasing as expected.

  • Several members expressed their view that LAO’s draft paper on bail is very good. One member said that the list of recommendations at the end of the paper presents a strong framework for thinking about the bail problem, and that LAO should continue to work in this direction. The remand problem was described as a separate problem that exists for a number of reasons, including problems with the court system.

  • It was suggested that LAO and the private bar need to work together to address the need to have bail hearings happen quickly. The Criminal Code provides for an early bail hearing, but it now takes two to three appearances for the hearing to take place, often because private bar counsel are not able to be there for the first two appearances. If a client says they have their own lawyer to handle their bail hearing, duty counsel are reluctant to tell the client that they could do it more quickly. Giving duty counsel the choice to make that offer would essentially be a policy decision for LAO to make.

  • A member noted that another reason for bail hearing delays has to do with eligible clients being sent back to jail because they are not able to get a certificate issued on the day of their arrest. They may spend an additional two days in jail before they are seen. This problem has to do with access to the certificate application process, and it surfaces frequently at the Toronto South Detention Centre. The situation is exacerbated in cases where the client has significant mental health issues and may need assistance in making the application.

  • It was pointed out that bail reviews also need to come forward expeditiously. Clients are so anxious to be released that they will accept any list of conditions that is offered to them. The assurance of an expeditious bail review could make clients more willing to contest unfavourable terms of release instead of simply agreeing to them.

  • It was suggested that LAO’s bail paper be expanded to include more exploration of the use of bail supervision programs. In British Columbia, instead of a surety system, the courts rely on bail supervisors who meet with the accused and ensure that the conditions of release are being followed. It was noted that this system, which relies on use of the probation service and has no entrance or screening criteria to keep people out, seems to work well. In Ontario, the culture is different; bail supervision programs do not accept everyone and Crowns view them as insufficiently tough. New York, in the meantime, successfully uses release on community supervision as an alternative to cash bail for those accused of non-violent crimes. Under this program, more people are released on bail, which has helped the state, which was struggling with the cost of incarcerating people, save money.

  • Some members suggested recommending in LAO’s paper that more bail hearings be conducted by provincial court judges instead of by justices of the peace (JPs). Members noted that hearings conducted by JPs tend to take longer, and that a judge may be more likely than a JP to overturn a joint submission. Other members indicated that both judges and JPs can make bad bail decisions. They felt that better training and more independence could help JPs do their jobs better. One member suggested that JPs could be required to possess a law degree, as is the case in Alberta.

  • Members agreed that there is a need for the Crown policy manual to be revised.

  • Bail in domestic violence cases was raised as an issue. Cases that do not involve serious matters and end up being consent releases can still take up a lot of time. It was noted that the Ministry of the Attorney General’s bail experts table made recommendations on how to handle these cases in the bail phase. The point was also made that Ontario’s “zero tolerance” policy on any case raising allegations of domestic violence could be the subject of a future test case.

  • A number of points were made about mentally ill accused and bail, as follows:

    • There may be opportunities to develop programs and services around bail for mental health clients who are frequently in and out of jail.

    • The judiciary has identified an unmet need for psychiatric assessments prior to bail for some mentally ill accused. These assessments, however, take time and require the assessing physician to have access to sufficient information.

    • An issue that concerns doctors is the inclusion of mental health requirements in bail conditions. These are often too easily entered into. They often reflect Crown or judicial overreach, and are not proper conditions for a bail order.

    • Another issue is the way in which bail is structured; there are competing interests involved and the treating physician has no control over the information presented in court, which may or may not reflect the reality of the situation from a medical perspective.

6. Consultation on advisory committee public postings

The Chair asked for input from the committee on LAO’s proposal to post future committee minutes and slide decks on the LAO website. The public versions of the minutes, which would be circulated to the committee prior to posting, would not include confidential information, would not attribute comments to individuals, and would not indicate which members were absent from meetings.

LAO decided to consult with the committees on making the minutes and slide decks available to the public on a going forward basis after receiving a freedom of information request for several years of past minutes of one of the committees.

The committee was unopposed to the LAO proposal, with the qualifications identified by the Chair. It was noted that everyone is interested in transparency, and these days there is no reason not to make more information available to the public. Members commented that the manner in which the minutes are currently drafted is acceptable, particularly as comments are not attributed to particular participants. It was stated by a member that there appears to be nothing in the minutes that would be upsetting to the public. One member stated that the starting point should be to make the assumption that what is in the minutes can be made public, and then to ask what, if anything, should be withheld.

7. Other business

None raised.