Board advisory committees

Meeting of the Legal Aid Ontario prison law advisory committee on October 21, 2015

Committee members

John McCamus (Chair); Bryonie Baxter; Brian Callender; Philip Casey; Seth Clark; Rosemary Gartner; Emily Hill; Elizabeth Hughes; Michael Mandelcorn; Allan Manson; Les Morley; Paula Osmok; Kim Pate; Elizabeth Thomas; : John Liston (LAO Board liaison).

1. Welcome and introductions

The Chair opened the meeting and welcomed those present.

2. Minutes, March 5, 2015

The minutes of the March 5, 2015 meeting were approved as amended.

3. LAO Business Planning Slide Deck and Discussion

The Chair presented an overview of the Update on current and future LAO initiatives slide deck. The slide deck includes an update on what has been happening at LAO and then looks to the year ahead. Feedback from the committee is invited.

The advisory committee meetings are aligned with the business planning process at LAO. The spring meetings focus on an environmental discussion, which feeds in to the business plan’s environmental scan. The fall meetings are used to discuss themes and ideas which are likely to form part of the following year’s business plan.

Expanded eligibility for legal aid has been the biggest story of the year for LAO. In 2014, the provincial government committed to increase the eligibility threshold, which had not changed in 20 years. Based on an eight-to-10-year process that would raise the eligibility thresholds to the low income measure, the province committed to three years of six per cent increases in the 2014 budget, and added a commitment to a fourth year six per cent increase in the 2015 budget. The province also agreed that LAO must use the new funding to provide services to newly eligible clients, and could use it to expand legal eligibility, making more types of cases eligible for coverage.

The presentation provides a description of the eligibility changes that LAO has implemented in 2014 and 2015 and their impact on certificate issuance.

So far, the impact has been greatest in the area of family law, which was hardest hit by cutbacks to legal aid in the 1990s.

LAO believes it will be able to spend all of this year’s new money and that it will issue an additional 20,000 certificates in 2015/16.

As well, 20 per cent of the new funding was provided to legal clinics to support expanded eligibility for clinic services. This distribution followed an extensive consultation process and was focused on two objectives—providing money to support new clinic services, and redressing funding imbalances that had resulted from increases in the proportion of low-income people in some clinics’ catchment areas. New money was also distributed to the Student Legal Aid Services Societies located at law schools.

Updates were provided on other initiatives as follows:

  • LAO has been supporting clinic transformation projects around the province, and this will continue in the year to come. Clinics can re-invest savings achieved through their transformation initiatives in client services.

  • LAO has been participating in the Attorney General’s round table process. In addition to a general round table, two specialty tables have been established, one in family law and one in criminal law.

LAO continues to work on its priority client strategies, which aim to improve services to vulnerable clients, as follows:

  • The first, the Aboriginal Justice Strategy, has served as a model for the others.
  • After a comprehensive consultation process, LAO has finalized its Mental Health Strategy blueprint, which should be released in the near future.
  • A consultation paper on the development of a new Domestic Violence Strategy has been posted on LAO’s website.

Additionally, LAO is working on ideas for improving bail services. Addressing systemic problems in the bail system was highlighted in the Premier’s mandate letter to the Attorney General. Improvements have been made to LAO’s test case program, including the identification of priorities for test cases.

Looking ahead to 2016/17, LAO’s business plan will consider the fiscal environment, provincial priorities, and client and service trends. Significant new funding for eligibility expansion is available, but at the same time LAO and the province both face fiscal challenges. The province has introduced a program review process to identify savings.

Client and service trends that will be included in the business plan include the 20 per cent decline in the number of criminal cases received in the Ontario Court of Justice over the past few years. The trend is not wholly explained by demographic changes.

The number of child protection cases in court has also dropped. LAO has responded by introducing expanded coverage for pre-litigation child protection services. The Aboriginal Issues Advisory Committee recently told LAO that there is a need for a child protection hotline or other easily accessed advice service to assist families facing pressure to enter into agreements with the Children’s Aid Society (CAS).

Refugee certificates, in the meantime, are now on the rise, after a steep decline following the introduction of new federal legislation. LAO anticipates issuing about 7,500 certificates this year, which is approximately half as many as it issued annually prior to the legislative changes.

Implementing expanded eligibility will continue to be a high priority for LAO in the coming year. Whether or not LAO will be able to introduce a second round of eligibility expansion initiatives will depend on the financial impact of implementing the June 2015 initiatives. LAO will continue to work on its client strategies and to support the Attorney General’s round table initiative. Potential new initiatives include a focus on transparency and an exploration of possible areas for tariff reform.

Committee members provided input and advice as follows:

  • LAO should be aware of the Chaudhary case, which was decided by the Ontario Court of Appeal on October 20, 2015. This case opens the door for people in long-term immigration detention to bring a habeas corpus challenge in Superior Court to the legality of their detention.

  • The drop in the number of child protection cases can be attributed to budgetary pressures placed on Children’s Aid Societies (CAS) to:

    • reduce the number of cases that proceed to litigation and
    • lower the number of children in care.

    More emphasis is being placed on voluntary and kinship care agreements, and on keeping children in the community.

    This CAS shift in focus has given rise to greater need for quick access to advice and assistance for families who are involved with the CAS and are facing pressure to enter into agreements, often outside regular office hours such as on the weekend. Often, families have already signed something by the time they are able to talk to someone. Aboriginal families are disproportionately impacted.

4. Prison law planning discussion

4.1 Proposal for a Prison Law Test Case Strategy

LAO’s Regional Manager, Case Management and Litigation Group, who is responsible for managing LAO’s Group Applications and Test Case Committee (GATCC) test case program, introduced a draft Prison Law Strategy document that had been circulated to the committee.

By way of background, LAO’s Board had approved new and expanded guidelines for eligibility for test case funding support from LAO as well as the development of strategic priorities for test cases in different areas of law in October 2014. The first of these strategies to be approved, also in October 2014, was the test case strategy for refugee law. Since then, there has been a significant increase in the number of refugee-focused test case applications made to GATCC. Given the vulnerability of prisoners, a prison law strategy was proposed as the next test case strategy to be introduced.

The draft strategy was based on a review of the advisory committee’s minutes and materials over the past few years, a review of the reports of the Correctional Investigator and meetings with stakeholders. Themes and priorities were consistent from all of these sources.

There are four categories of priorities included in the draft strategy:

  • access to medical and mental health treatment
  • issues related to segregation
  • availability of and equal access to rehabilitative programming and
  • constitutional challenges to provisions in the Correctional and Conditional Release Act (CCRA).

These priorities are intended to provide a mandate, and as a guide to intake staff to help them understand and recognize test case issues. They have not been designed to use as a gatekeeping tool.

The strategy would apply to provincial as well as federally-incarcerated inmates, although the shorter-term nature of provincial sentences raises some practical problems for test case litigation. Based on feedback, the strategy may be amended to make it more clear that it applies to provincial as well as federal inmates.

Subject to feedback from the committee, the strategy will be brought to the LAO Board for approval. It will also be shared with GATCC before being implemented.

In terms of the remand population, LAO has been exploring the potential for a test case around bail issues.

Members were urged to spread the word about LAO’s test case program, and to be aware that, through the program, LAO can offer case management assistance that may not be available through the regular certificate program.

Committee members provided input and advice as follows:

  • The committee was in favour of proceeding to seek approval of the prison law test case strategy, subject to the comments made below. It was noted by a member that the issues identified in the document are some of the most important issues in prison law.

  • Although the draft strategy identifies several current issues, other issues could also arise that would merit test case funding. The strategic priorities should not be considered a closed category, and GATCC should not take a rigid approach, in order that cases that do not fit cleanly into one category or another do not fall between the cracks.

  • Provincial inmates and persons in remand custody in provincial institutions also experience human rights violations and discriminatory practices. There are huge problems, for example, at the Toronto South Detention Centre, relating to the living arrangements of prisoners, and the fact that prisoners are given little contact with family or with counsel; virtually everything is done through video link. This could potentially be the subject of a test case.

  • The issues that affect remand prisoners in provincial institutions are different from the issues that affect sentenced prisoners. This should be considered if LAO intends for the strategy to apply to persons in remand custody.

  • In thinking about potential test case issues and developing trends that could benefit from strategic litigation, LAO should also keep its eye on the recommendations coming out of inquests.

4.2 Planning for a potential prison law strategy for LAO

LAO policy counsel introduced a slide deck outlining current thinking at LAO on the development of a potential prison law strategy for approval by LAO’s Board. The strategy would follow the model of LAO’s other client strategies and would respond to concerns and priorities raised by the advisory committee and by current reports on prison law issues. The overview of the current range of legal aid prison law services, set out in the chart on slide 4 of that deck, is a starting point for thinking about future initiatives

The areas of focus that LAO has provisionally identified for the strategy are:

  • the development of a prison law test case strategy (an area in which work is already underway)
  • reconsideration of LAO’s priorities for non-test case prison law certificates
  • the establishment of priorities for data collection on prison law services by LAO
  • outreach and training/mentoring initiatives to support development of the prison law bar and
  • improved internal processes for dealing with prison law matters at LAO.

Committee members provided input and advice as follows:

  • The Queen’s Prison Law Clinic (QPLC) also provides assistance for parole hearings, judicial reviews, prerogative remedies and human rights complaints. This clinic can support test cases in a number of different ways. Test case work merits a separate line in LAO’s chart of prison law services.

  • LAO should maintain its emphasis on choice of counsel in developing its strategy, in relation to both its test case and non-test case coverage.

  • LAO does not currently issue regular certificates for institutional grievances, but should consider doing so, particularly where counsel feels that they have merit. Frequently, a case raises a good legal issue but it can never be litigated at Federal Court because it is based on grievances that the prisoners drafted themselves, without the capacity or legal knowledge to do so in a manner that will stand up to judicial scrutiny. Grievances that raise systemic issues could qualify for a test case certificate, but those grievances that do not raise test case issues should nonetheless be eligible for coverage.

  • LAO should be aware of unequal gender access with respect to grievances. The QPLC can assist male prisoners in the Kingston area prisons with their grievances, but is unable to assist the female prisoners at the prison for women in Kitchener—Grand Valley Institution. Issuing certificates would allow LAO to address this access problem because there are lawyers in Toronto and elsewhere who could do this work if certificates were available; the problem is lack of coverage. The initiative would fit with LAO’s expansion of coverage beyond the loss of liberty test. LAO would need to estimate the likely uptake and the cost of these certificates, particularly since some expenses for travel would likely be required.

  • There are other federal institutions outside of the Kingston area, such as Fenbrook, where QPLC is unable to assist with grievances.

  • Another area where certificate coverage would be helpful is to provide access to counsel early on to create a record of disciplinary hearings. Although no major impact flows immediately from a decision in disciplinary court, if the record is not created, an inmate’s chances of parole or transfer can be affected later on. Assistance in this area is currently provided by clinics or by duty counsel, but:

    • not all cases come to QPLC
    • the coverage provided at prisons through the duty counsel system can be uneven and
    • it was suggested that duty counsel are not in a good position to create a record on the basis of a five-minute talk with the inmate.
  • The committee discussed how potential new certificate cases might be likely to make their way to the attention of LAO and private bar counsel. LAO staff go to all of the institutions, including Grand Valley. They can be briefed on the identification of important issues that are likely to arise in the context of grievances. This approach has worked well in bringing more applications before LAO’s test case program. LAO was advised that the case identification process should not be used to limit the client’s choice of counsel.

  • An unmet need for mentoring, particularly with respect to prison law test cases, is for lawyers to have access to assistance from a senior civil litigator. LAO’s Second Chair mentoring program provides funding for senior lawyers to work with less experienced lawyers, but the senior lawyer is required to be a member of a legal aid panel. Provided the underlying case is a legal aid case, there may be flexibility for LAO’s directors general to exercise discretion in assigning a senior civil litigator to a panel in an exceptional case. It was noted that LAO’s test case program can play a role in pairing less experienced counsel with a senior litigator on a specific test case.

  • Members supported further development of the prison law strategy proposal. There are gaps in the current coverage that should be explored. As information is shared with stakeholders, clarity should emerge on what the priorities should be.

5. Consultation on advisory committee public postings

The Chair introduced LAO’s proposal to post public versions of future advisory committee minutes and materials on the LAO website. Committee members’ names and potentially their institutional affiliations would be published, but following freedom of information legislation principles, any information identified as confidential would be withheld from the public versions. Comments in the minutes would not be attributed to individual members, and the committee would have a chance to see the public version of the minutes prior to posting by LAO. The LAO Board has asked for a report on the reaction of the advisory committees to this proposal. This meeting is the last of the eight fall meetings. Six of the committees responded enthusiastically to the proposal although the seventh, while not opposed, was not sure that it was necessary.

There was no opposition to this proposal from this committee. Members noted that it is a good idea to be transparent. It was pointed out that there would be a six-month delay in posting, since the minutes are not formally approved by the committees until the next meeting. However, the turnaround would be as timely as a response in the normal course to a freedom of information request.

6. Other business

None was raised.