Board advisory committees

Meeting of Legal Aid Ontario Aboriginal issues advisory committee on September 12, 2016

Committee members

John McCamus (Chair), Mary Bird, Christa Big Canoe, Paula Corbiere, Sarah Dover, Margaret Froh, Barbara General, Katherine Hensel, Arthur Huminuk, Jason LeBlanc, Stacia Loft, Christina Ninham, Celina Reitberger, Karen Restoule, Brenda Young, Nancy Cooper (LAO Board Liaison)


Chelsea Krahn

1. Welcome and introductions

Chair John McCamus opened the meeting and welcomed those present.

2. Minutes, March 17, 2016

The minutes of the March 17, 2016 meeting were approved.

3. Legal Aid Ontario business planning slide deck and discussion

The Chair presented highlights of the LAO Board Advisory Committees Fall 2016 Meetings: LAO updates and proposed priorities for 2017‑2018 slide deck.

The current financial picture is complicated. Legal Aid Ontario (LAO) is confronting around a $20 million deficit, of which the increased demand for refugee services is a significant component. Higher than anticipated costs related to eligibility expansion are also contributing to LAO’s financial pressures. LAO is working on initiatives to increase administrative efficiency and is doing what it can to address the deficit.

LAO received new funding from the province, beginning in 2014, to expand financial eligibility. The province has demonstrated strong support for legal aid in a difficult time. There have now been three increases of six percent each to financial eligibility, making 1.4 million Ontarians eligible for legal aid, up from one million prior to the first increase. New money has also been allocated to the clinic system and there are a number of new clinic initiatives that are receiving funding. In June 2015, LAO made funding available to cover new types of cases. As a result of the expansions to financial and legal eligibility, certificates increased by 24 percent in fiscal year 2015-2016 compared to the previous year. LAO has taken steps to clarify the criteria for the new legal eligibility certificates but is still issuing certificates well over budget.

The slide deck outlines developments on LAO’s client strategies. The first of these was the Aboriginal Justice Strategy. The Mental Health Justice Strategya> came next, which was launched in March 2016. A major focus for the Mental Health Justice Strategy to-date has been the development of training. An extensive training program has been developed and provided to LAO staff lawyers working in criminal law. In time, it can be adapted to other areas of law and provided to other legal aid plans across the country, as well as to the private bar.

LAO has been working on developing a Domestic Violence Strategy and the public launch is expected by the end of 2016. Staff training on domestic violence awareness has gone well.

In the fall, LAO expects to post its Bail Strategy paper. LAO is also working on initiatives related to bail, including a best practices pilot project at the 1000 Finch Avenue courthouse in Toronto.

LAO has done work to improve its test case program and take a more strategic approach to its support for test case work.

A Racialized Communities Strategy is in the early stages of development at LAO. The slide deck includes some consultation questions that relate to the development of this strategy, and members are invited to provide their input.

LAO is also developing a Prison Law Strategy. A pilot project to enhance services to inmates in Halton Region is being launched. LAO has also engaged on prison law issues by sending letters to the Ministry of Community Safety and Correctional Services to voice concerns about the use of segregation and about conditions at the Ottawa-Carleton Detention Centre.

In the area of family law, LAO is working with the Motherisk Commission to determine its role in providing services to parents affected by flawed Motherisk hair analysis test results. LAO also made a submission to the Family Legal Services Review, which is looking at the potential role of non-lawyers, such as paralegals, in providing some family law services. LAO is also working on options for new services that were funded with one-time, three-year funding that was provided by the province to improve family law services. This funding is now in its final year. LAO would like these services to continue, if possible.

In the area of criminal law, LAO is supporting the Ontario Court of Justice’s Criminal Modernization Project. LAO is funding mandatory second judicial pre-trials at selected pilot sites. LAO is also providing duty counsel support at the Toronto South Detention Centre to support meaningful and effective video bail reviews from that location. LAO has developed tools and supports for duty counsel, including an immigration advice hotline.

The province has identified transparency and open government as a priority, and LAO supports this initiative. A lot of information has been posted on LAO’s website, including advisory committee minutes and LAO’s public business plan. Information that is protected by solicitor-client privilege cannot be disclosed.

LAO is interested in making better use of technology to enhance client services. An electronic duty counsel worksheet has been introduced on a pilot project basis. Last week, LAO hosted a “Wired Justice” conference which featured guest speakers making presentations by Skype from the United States and Europe. In Canada, British Columbia has recently launched an interactive website called "MyLawBC".

The LAO Board Advisory Committees Fall 2016 Meetings: LAO updates and proposed priorities for 2017-2018 slide deck includes an overview of environmental scanning input and LAO’s proposed priorities for 2017-2018. LAO’s plan is to continue its focus on the priorities that were identified last year, including financial eligibility expansion and the ongoing development and implementation of LAO’s client strategies. LAO is also looking to develop a long-term strategic plan over the next 18 months, focusing on where LAO wants to be in five years’ time.

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

  • From the perspective of public accountability, it would be good if LAO’s data on service provision, including to First Nation, Métis and Inuit clients, was more available to the public. The aim should be for the public to be able to see how LAO is spending its money. A geographic breakdown would make the data more accessible to the public; not just a percentage of clients, but how many and from where.

  • Making LAO’s data publicly available could also support initiatives including the province’s Poverty Reduction Strategy. LAO’s data could help to drive the work of the province in these larger strategies.

  • There are opportunities for test cases in the area of bail.

  • LAO should identify strategic priorities for funding test cases that raise Aboriginal issues, as it has done in the areas of refugee law and prison law. It was noted that test case work often addresses intersecting issues; for example, a correctional law case may also raise Aboriginal issues.

  • LAO’s test case committee needs members who are experts on Aboriginal test case issues. The difficulty is that the experts are unable to sit on the committee if they are also the people who are litigating the cases. LAO may need to look outside the province to find an expert with relevant practice experience.

  • Several members were interested in whether LAO might be able to play a role in the national inquiry into Murdered and Missing Indigenous Women and Girls by providing legal support to families. Funding is available from the government for some things but so far, there is no indication that legal representation will be funded. Members felt that funding for legal representation should be provided by the federal government. As the scope of the inquiry is being determined, members were concerned that families may not have support in seeking the process they want.

  • It was noted that the province has established an independent review of the Special Investigations Unit, the Office of the Independent Police Review Director, and the Ontario Civilian Police Commission. The review will be led by Justice Michael Tulloch. There will be community engagement sessions, including with ethnic and linguistic legal clinics, and a number of clinics that serve marginalized populations will be making joint submissions.

  • The Ontario Human Rights Commission has been holding consultations with groups, as has Ontario’s new Anti-Racism Directorate. There are opportunities to provide input and potentially seek funding.

4. Aboriginal Justice Strategy update and discussion

LAO’s Aboriginal Justice Strategy Policy Counsel provided an update on the Aboriginal Justice Strategy and related initiatives.

There is a lot going on right now, including in response to the Truth and Reconciliation Commission’s Calls to Action. LAO is developing LAO employees as local leads and is forming a working group to increase the effectiveness of AJS initiatives and priorities. There will be a local lead in every courthouse. The working group will be meeting monthly. LAO is looking to become a leading force in bringing people together as opposed to working in silos. The idea is to identify the people who have the knowledge and strong community relationships, and to build on those strengths.

As of June 1, 2016, it became mandatory for all legal aid service providers, including duty counsel, to ask clients if they identify as an Aboriginal person, using the Aboriginal self-identification questions. Duty counsel and call centre staff have received training, and the rollout went well. This information will help to build understanding of how clients are interacting with legal aid. Trends will not become apparent for at least six months, but some information should be available for sharing at the spring 2017 committee meeting.

LAO continues to develop its cultural competency training for staff. The online portion is nearly completed in draft form and will be sent out for review. The training will be a starting point for people to understand issues and realities. The Ministry of the Attorney General and the Law Society of Upper Canada are also working on training initiatives.

The Ministry of the Attorney General is hosting a Gladue summit with 100 invitees in Thunder Bay this November. The focus will be on increasing the use of Gladue in courts. There is a real need for a shift to the bail stage. So far, the focus has been on the criminal law side, although there is some thinking on how Gladue might apply in child protection matters. There are still issues with access to Gladue report writing services. Funding for Gladue is complicated, and involves the Ministry of the Attorney General, LAO and the Department of Justice Canada.

LAO has updated and expanded the legal education requirements for its Gladue panel standards. The new requirements include more legal memoranda prepared by LAO LAW. These memoranda will be updated every six months. A draft of the updated requirements has been shared with the committee and LAO would appreciate the committee’s input. More supports for panel members will be added in the future.

At the last meeting, some members indicated that they would be interested in seeing the name of the committee changed to the Indigenous Issues Advisory Committee. LAO would like to bring the issue to its working group and local leads, and learn more about how communities feel and what term they would prefer LAO use. LAO believes at this point that opinions are likely divided.

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

  • Members were interested in learning about LAO’s local leads in their areas.
  • Six months of data collection is a short timeframe. It will probably take a year to see real trends emerging from use of the Aboriginal self-identification question by duty counsel.
  • Money spent on gathering statistics and learning about the needs of the regions and the communities being served is money well spent.
  • Training has become a huge focus. The Ministry of the Attorney General is increasing its training, particularly for Crowns. There is a growing emphasis on issues of violence and sexual violence.
  • More emphasis needs to be placed on Gladue at bail. The legal community is still caught up in sentencing and needs to get into a creative space when it comes to Gladue. Good academic work has been done in this area.
  • There are mixed feelings in the community on the use of the term Indigenous versus the term Aboriginal. Some organizations have adopted Indigenous but others do not prefer it. Some organizations are now wondering whether the term First Nation is even appropriate. It was suggested that there are so many big issues at stake today that too much time should probably not be spent engaging in a debate about names.
  • Concern was expressed about inconsistency in how financial eligibility testing for duty counsel services is applied in Gladue court. It was reported that some duty counsel are administering the test and others are not.

5. Action items

  1. LAO will share available data on mandatory use of the Aboriginal self-identification question by duty counsel at the spring 2017 meeting.

  2. LAO will share with the committee the LAO LAW memoranda that are included in the updated Gladue panel education requirements.

  3. LAO will look at the issue of inconsistency in the application of financial eligibility testing for duty counsel services in Gladue court.

6. Other business

None raised