Board advisory committees

Meeting of the Legal Aid Ontario prison law advisory committee on March 24, 2016

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; James Yakimovich (LAO Board liaison).

1. Welcome and introductions

The Chair opened the meeting and welcomed those present.

2. Minutes, October 21, 2015

The minutes of the October 21, 2015 meeting were approved.

3. LAO business planning slide deck and discussion

The Chair presented highlights of the LAO updates and proposed priorities for 2017/2018 slide deck. It was noted that the advisory committee meetings are aligned with the business planning process at LAO and that the spring meetings focus on environmental scanning.

Updates were provided on recent developments at LAO. It was reported that the LAO Board has approved the proposal to post advisory committee meeting minutes on the LAO website. This proposal was discussed with the committees at the fall meetings, and the Board has adopted the suggestions that the committees made at that time, including that:

  • the minutes be circulated and approved prior to posting
  • confidential information not be included and
  • comments not be attributed to individual members.

LAO would like to post the names of committee members on the website as well, accompanied by a short biographical statement or institutional affiliation. While the initial proposal before the Board involved the creation of two sets of minutes (a public version and a committee version), in practice the two versions were so similar that only one version may be created going forward, with any confidential information being reported to the Board separately.

LAO has a new President and CEO. David Field was appointed following a search process undertaken after Bob Ward announced that he would be retiring. David has been a vice president at LAO and was responsible for LAO’s business plan; before that, he had a long career at the Ministry of the Attorney General, where he was involved in the establishment of LAO as a statutory agency.

New funding from the province to support expanded eligibility for legal aid continues to be the biggest new development at LAO. LAO’s eligibility standard was reduced in the 1990s and was not adjusted for two decades. The result was that only half of Ontarians with income below Statistics Canada’s Low Income Measure were eligible for legal aid in 2012, although nearly all had been eligible in 1996.

LAO presented a business case to the province that was based on a series of six per cent increases over a period of eight to ten years. The province agreed to this plan, and committed to the first three years of funding, with the third six per cent increase to financial eligibility coming into effect on April 1, 2016. LAO is hopeful that there will be a commitment to additional increases. The province also supported LAO’s proposal to expand legal eligibility, and new services were introduced in June 2015.

As a result of expanded financial and legal eligibility, LAO anticipated that an additional 20,000 certificates would be issued in 2015/16, representing a 20 per cent increase. As the end of the fiscal year nears, LAO believes that the final number will be higher than the original estimate.

Twenty per cent of the new funding is being provided to legal clinics. This represents historical allocations to the legal clinic system. This year $6.7 million was distributed with a particular focus on under-resourced clinics. An additional $3.3 million is being allocated through a provincial fund to support new services.

LAO is participating in various justice system improvement initiatives, including the Attorney General’s family and criminal justice roundtables and the Ontario Court of Justice’s criminal modernization process. LAO’s CEO and LAO’s Director of Policy and Strategic Research were also invited to speak before a Senate committee that is looking at criminal justice system delays.

LAO continues to focus on service improvements through its priority client strategies, as follows:

  • The first priority client strategy was the Aboriginal Justice Strategy, which is currently focusing on Gladue panel standards and cultural competency training.

  • After two years of consultations, LAO introduced its Mental Health Strategy, which had its public launch at Sound Times earlier this month.

  • A Domestic Violence Strategy is currently being developed, and consultations have been held province-wide. Staff have received domestic violence awareness training and LAO will be making the training accessible to interested clinics and per diem duty counsel.

  • LAO’s Board recently approved a prison law test case strategy and the development of a Racialized Communities Strategy, a Bail Strategy and a Prison Law Strategy.

The LAO updates and proposed priorities for 2017/2018 slide deck includes highlights of LAO’s 2016/17 business plan, including an overview of the business plan’s environmental scan and the business planning priorities that were discussed with the advisory committees at the fall meetings. LAO is planning to post a public version of its business plan in the near future.

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

  • The committee supports LAO’s bail strategy and would like to be kept up to date and involved in new developments. LAO’s leadership has made a difference and has helped to ensure that the work of the Attorney General’s criminal justice roundtable will include the development of a pilot project focused on bail.

  • There are connections and intersections between prison law, criminal law and immigration and refugee law that LAO should consider in the context of its bail strategy. For example, two people have recently died in immigration detention.

  • One issue on LAO’s radar is a service gap that was identified about people living in rural and remote areas. These people face particular issues around access due to geographical considerations. Fewer services tend to be available in rural communities.

  • The committee identified a nexus between interactions with the criminal justice system and homelessness. There appears to be an increase in landlords asking for criminal records checks and denying housing to prospective tenants on that basis. Nothing legally prevents landlords from asking, but it is cause for concern considering the rate of homelessness. There is also an issue with eligibility for surety release for people who are living in public housing.

4. Prison law update and discussion

LAO’s Policy Counsel supporting the development of a prison law strategy for LAO and LAO’s Manager of Test Case Programs provided an update on planning for development of a prison law strategy.

In December 2015, the LAO Board approved the prison law test case strategy that had been discussed with the advisory committee at the fall meeting, along with a proposal to develop a broader strategy for prison law services. LAO has been meeting with internal and external groups to discuss these initiatives.

The test case strategy provides LAO with the opportunity to proactively develop cases. The list of priorities is not, however, exhaustive. Members were encouraged to connect with LAO if they become aware of a potential test case or test case issue.

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

  • There are opportunities for LAO to partner with agencies and organizations on test cases. Many of these groups are interested in working with LAO. Working in partnership can help in finding the right test cases and also can help to avoid duplication or undermining of each other’s work. Regular communication will be important. Some groups should always be involved if there is a test case that touches on their area of expertise (for example, the Elizabeth Fry Society should be involved in any test case that involves women prisoners).

  • Public interest agencies can play an important role at inquests, because the families are naturally most concerned with finding out what happened to their loved ones. The concerns of the families may or may not be aligned with the issues that affect the broader rights of prisoners. For this reason, it is important that LAO is able to fund representation for public interest agencies as well as for families at inquests.

  • Increasing numbers of persons with developmental disabilities are being incarcerated. These people are almost always held in segregation, which may be given a different name such as “direct observation.”

  • Youth in segregation are particularly vulnerable and particularly isolated. The issues that affect them include lack of telephone access to the Office of the Provincial Advocate for Children and Youth or to agencies like the John Howard or Elizabeth Fry societies.

  • Reclassification of prisoners raises issues that could potentially be addressed through a test case. Through the two year rule, prisoners can be reclassified and granted an earlier return to the general population. The problem is that it takes more than two years to get there.

  • Grievances are important because they often set the stage for a test case. The grievance backlog at some institutions goes back years, and this effectively denies access to the courts.

  • Some kinds of advice services for prisoners may be best suited to limited-scope certificates. For example, advising on waiver of a parole hearing would fit into this category because of the complexity of the issue, the need for a full review of the file, and the intersecting issues involved.

  • The number of habeas corpus applications funded by LAO has been increasing, but it can be very difficult to prepare for these, and the three hours allowed for under the tariff are often not enough. It was noted that LAO’s two-hour opinion certificates are quite limited.

  • Telephone advice services for prisoners are problematic due to concerns with privacy and confidentiality.

  • The new dedicated telephone line for inmates contacting the LAO call centre is good news, but with the call centre, the general experience has been that the call is likely to be cut off if there is any kind of hold or transfer.

5. Action items

  1. A report on LAO’s bail strategy will be a standing item at future committee meetings.

  2. LAO will share the ORB training kit for counsel.

  3. LAO will provide a list of locations where Gladue services are provided.

  4. LAO will confirm whether there have been problems with prisoners being cut off when they call the toll-free LAO call centre, and will confirm whether the number to call for the new dedicated line for inmates is different from the regular 1-800 number.

6. Other business

None raised.