Board advisory committees
Meeting of Legal Aid Ontario prison law advisory committee on October 19, 2016
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)
Kathy Ferreira, Adelina Iftene
1. Welcome and introductions
The Chair opened the meeting and welcomed those present.
2. Minutes, March 24, 2016
The minutes of the March 24, 2016 meeting were approved
3. LAO 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 financial picture for LAO is troubling. LAO is facing an operating deficit of roughly $20 million. A dramatic increase in demand for refugee services is a major source of the problem. Additionally, expenditures related to eligibility expansion have been higher than anticipated, exceeding available funding. LAO believes that it can be in a balanced position in about 18 months, because additional funding for eligibility will be coming, but at present there is a problem. LAO has been keeping the Ministry of the Attorney General informed.
Financial and legal eligibility expansion has succeeded in increasing access to justice. LAO issued 24 percent more certificates in fiscal year 2015-2016 than in fiscal year 2014-2015. The greatest impact has been seen in the number of certificates issued for minor criminal offences and for domestic family law matters. Additional funding has been allocated to legal clinics as well. Some of the new funding for clinics was used to address demographic changes that increased the low-income population in certain clinic catchment areas. A provincial fund was also created and used to allocate funding to clinics on a project basis.
LAO continues to work on its client strategies. The first of these was the Aboriginal Justice Strategy. This year the strategy is focusing on an initiative to build stronger local teams. Since the spring 2016 launch of LAO’s second client strategy, the Mental Health Strategy, the focus has been on piloting embedded counsel services and delivering training to staff lawyers working in the area of criminal law. LAO’s training will be made available to other legal aid plans so that it can be adapted by them for their own use. Following successful consultations, LAO continues to develop its Domestic Violence Strategy. Domestic violence awareness training was provided to LAO staff in 2015 and is now being rolled out to duty counsel and others.
LAO has been concerned for some time about bail and remand issues. Bail has been identified as a priority in the Attorney General’s recent Mandate Letter from the Premier. LAO is involved in some bail projects, including a best practices bail pilot at the 1000 Finch courthouse in Toronto, and LAO’s bail paper will soon be posted online.
In the area of family law, LAO is involved in a number of initiatives. LAO has been working with the Motherisk Commission on a plan to provide services to eligible clients who have been affected by flawed Motherisk test results. LAO is working on a submission on costs under Rule 24 of the Law Rules. LAO also made a submission to the Family Legal Services Review on the use of non-lawyers in providing family law services.
In the area of criminal law, LAO is participating in the Ontario Court of Justice’s Criminal Law Modernization Project by funding second judicial pre-trials at selected sites as part of a two-year pilot project. LAO has developed tools and supports for criminal law staff and per diem duty counsel, including an immigration hotline and a plea comprehension inquiry tool.
Increased demand for refugee law services has created financial pressure for LAO. LAO has asked the Immigration and Refugee Board to consider adopting speedier processes for some cases.
LAO is supporting the provincial government’s initiative on transparency and open government. It is likely that the increased focus on transparency will assist LAO by making more data from government ministries available.
LAO is interested in the use of technology to enhance client services and increase access to justice. In September 2016, LAO hosted a one-and-a-half-day conference on “Wired Justice”. Experts from around the world participated by Skype and talked about recent developments in their jurisdictions. In Canada, British Columbia has been leading the way with their new “MyLawBC” program, which is based on an interactive web program that was developed in Holland. Although LAO cannot afford a similar program at this time, LAO is planning ahead and thinks it can learn from the experience of British Columbia.
In planning for fiscal year 2017-2018, LAO is taking the external trends and indicators identified in its environmental scan, and the environmental scanning input provided by the advisory committees, into account. LAO’s strategic objectives for next year are expected to be a continuation of the objectives that were identified for the current year. There will be additional funding for continued implementation of expanded financial eligibility. LAO will also continue to develop and implement its client strategies.
4. Prison law update and discussion
LAO Policy Counsel supporting the development of a prison law strategy for LAO provided an update on the development of the strategy. Consultations are ongoing, and there has been consensus around priority issues and unmet legal needs. There is strong stakeholder interest, particularly around test case opportunities. It is expected that a strategy paper will be completed by the end of March 2017.
It was noted that on October 17, 2016, the Ministry of Community Safety and Correctional Services announced that the province will be appointing an independent external reviewer to further examine the use of segregation in Ontario’s correctional facilities. The review will support the development of a plan that is to be released in spring 2017. As work on this review continues, there will be additional opportunities for consultation and stakeholder input. On October 17, the Ministry of Community Safety and Correctional Services also announced that it is implementing a number of immediate reforms, including: the use of segregation only as a measure of last resort; a limit of 15 consecutive days in disciplinary segregation; and the establishment of a weekly segregation review committee at each institution.
LAO’s Director of Policy drew the committee’s attention to two letters that LAO sent to the Ministry of Community Safety and Correctional Services in May 2016. One letter addressed conditions at the Ottawa-Carleton Detention Centre and the other identified LAO’s concerns about the use of segregation. The letters represent a policy position and not the official position of LAO. LAO would be interested in input from the committee on LAO’s future engagement on these issues. LAO’s letter on the use of segregation recommended that segregation be used as a last resort, oversight mechanisms be established, and a focus be placed on vulnerable clients. Much of what LAO identified in the letter was followed up on in the the Ministry of Community Safety and Correctional Services announcement.
Policy Counsel provided an update on LAO’s in-custody dedicated phone line, which was implemented in March 2016. This initiative provides inmates at provincial and youth facilities in Ontario with direct access to the LAO call centre for making legal aid applications. To-date, the initiative has resulted in increased access, and a reduction in wait times and abandoned calls.
The Director of Policy noted that LAO is involved in a video and remote access pilot project at the Toronto South Detention Centre. The video bail project began in the spring and details are being finalized to have duty counsel on-site to support the project. Having duty counsel on-site at the detention centre means that inmates appearing by video will be able to receive the same support from duty counsel as they would receive at the court site. This makes the process more efficient and means that inmates are not required to travel to court. A similar service may be established for women prisoners at Vanier so that they are not required to travel to the College Park courthouse in Toronto.
LAO’s Director General, Hamilton-Kitchener District, reported on LAO’s enhanced inmate services project. This is a pilot project to provide improved service to vulnerable people in pre-trial detention. It assists inmates who have made multiple video appearances and have not been able to access services through the centre, or find a lawyer. A staff lawyer identifies the client’s legal needs and makes referrals to the private bar, or to other services as needed. At this time, the project’s services are only available to Maplehurst clients who have Milton-based matters, but LAO would like to expand to cover other locations. The project is in-house now, in its early stages, but the plan is to create a team that includes private bar and clinic lawyers to assist these clients. Staff involved in the project find that clients tend to have a cluster of legal needs, and that they cycle through the system as a result.
LAO’s Director of Policy provided an update on LAO’s bail strategy. The bail strategy paper documents the problems with bail in Ontario, drawing on important reports from the John Howard Society of Ontario and the Canadian Civil Liberties Association. The problems include an increase in the use of detention by police, delays in reaching a bail hearing, increasing overuse of sureties, and an increase in onerous bail conditions that are not related to the risk of offending. These problems have a disproportionate impact on LAO’s marginalized clients.
LAO’s bail strategy outlines ways in which LAO can be part of the solution, including by improving the efficiency of the bail process. LAO has improved certificate eligibility for bail, and is working with Aboriginal justice stakeholders to bring Gladue principles into the bail process. LAO is piloting a best practices bail court for duty counsel at the 1000 Finch courthouse and would like to see it replicated in other parts of the province. The new Mandate Letter for the Attorney General identifies bail and remand as a priority, and LAO is hoping to coordinate the announcement of its bail strategy with the Attorney General.
It was noted that the Ottawa-Carleton Detention Centre Task Force identified the growth in remand prisoners as a factor contributing to overcrowding at the this facility. LAO’s Director General, Eastern Region, reported that LAO duty counsel are taking legal aid applications at the Ottawa-Carleton Detention Centre so that people do not have to wait an additional day for video bail, and this has helped to reduce the size of the population there. LAO district staff are also involved in a group that is continuing to look at the Ottawa-Carleton Detention Centre situation.
Committee members provided input and advice. The views expressed do not necessarily reflect the views of every member:
There is a need for follow-up and oversight with respect to the use of segregation. There is a risk that the new limits on segregation announced by the Ministry of Community Safety and Correctional Services may not be enforced or monitored by front-line staff. Historically, much of what is supposed to happen in corrections does not happen, and this applies at both the provincial and federal levels.
It was suggested that LAO refer to the 1996 Arbour Commission report, which emphasized the need for limits to be place on the use of segregation including the establishment of external oversight. The report, Commission of Inquiry into certain events at the Prison for Women in Kingston, was written in the context of the situation of federal women prisoners, but is capable of wider application. Although there was a lack of readiness to respond to the report’s recommendations at the time, the situation is likely different today.
Prisoners have legal needs in different areas of law. Family, criminal, and immigration and refugee law are all distinct areas of expertise. There is a need for an effective referral process to properly address the different legal needs of incarcerated clients. When a legal need is identified, for example in immigration law, the client should be referred to an immigration expert to provide that assistance. The private bar can play an important part in making this process effective.
The time is right to examine whether women prisoners are being underserved in terms of equal access to legal services. Federally sentenced men in the Kingston area have access to a combination of certificate and clinic legal aid services in the area of prison law. Federally sentenced women in Kitchener have access to certificates, but not to prison law clinic services that cover matters such as grievances and human rights complaints.
The number of prisoners over the age of 50 is increasing, and there is a wide unmet need for services for these older prisoners. Many are terminally ill and will not be released before their deaths. They are not able to access assistance with preparing their wills or advance directives, or settling property issues and other legal issues before they die. These matters weigh heavily on their minds. Some prisoners make holograph (handwritten) wills, but these are often thrown away by correctional staff who clean out the cell after a prisoner dies. Some assistance with will preparation is available in the Kingston area through the Queen’s Prison Law Clinic, but otherwise these services are not available. Perhaps LAO could think of how to assist in providing these services, possibly through a partnership initiative.
5. Other business