Board advisory committees
Meeting of the Legal Aid Ontario criminal law advisory committee on March 16, 2016
John McCamus (Chair); David Berg; Scott Bergman; Norm Boxall; Anthony Doob; Paul Dray; Martin Friedland; Shaunna Kelly; Matthew McGarvey; Sandy Simpson; Ralph Steinberg; James McNee (LAO Board liaison).
1. Welcome and introductions
The Chair opened the meeting and welcomed those present.
2. Minutes, October 14, 2015
The minutes of the October 14, 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, noting that a number of attachments had also been circulated to the committee, including LAO’s bail strategy paper and submissions to the province on bail and on carding and street checks.
The committee was updated on recent developments at LAO.
The LAO Board has approved the proposal, discussed by the committee in fall 2015, to post minutes of advisory committee meetings on the LAO website. All of the advisory committees were consulted on this proposal in the fall, and the Board has adopted the suggestions made by members, including that the minutes be circulated and approved by members prior to posting, that they not include confidential information and that comments not be attributed to individual members. The website will list the names of members along with brief biographical information, but no contact information will be released. While the initial proposal involved creating two sets of minutes, one of which would be the public version, the two proved to be so similar that likely only one set of minutes will be created in the future, with any confidential information provided to the Board in a separate covering report.
David Field has been appointed as LAO’s new President and CEO, following a search process undertaken after Bob Ward announced that he would be retiring at the end of 2015. David has had a distinguished career at the Ministry of The Attorney General, where he was on the team that established LAO as an independent agency.
LAO is continuing to implement expanded eligibility, which is the biggest new development at LAO. Since the province accepted LAO’s business case for expanded eligibility in 2014, funding has been provided to increase financial and legal eligibility for legal aid services. The third across-the-board 6 per cent increase to the eligibility guidelines will come into effect on April 1, 2016, and LAO is on track to issue an additional 20,000 more certificates this year than it did last year. A regulation change will be required to implement further increases after April 2016, and LAO is hoping to obtain a longer-term commitment to further expansion. Seven years of six per cent increases would raise eligibility for most applicants to the level of Statistics Canada’s Low Income Measure, which was the focus of LAO’s business case.
The LAO updates and proposed priorities for 2017/2018 slide deck shows where certificate increases have been most significant to date:
In criminal law, the greatest increase has been in certificates for adult minor offences, due primarily to legal eligibility expansion starting in June 2015 for first time accused from vulnerable groups and for accused facing serious secondary consequences.
In family law, where services were cut drastically in the 1990s, there have also been significant increases, due primarily to the increases in the income thresholds.
Youth criminal certificates have also increased, but not enough to impact the downward trend in these certificates. LAO funds the majority of youth cases and certificate numbers follow the general trend.
LAO is continuing to monitor the impact of expanded eligibility.
Twenty per cent of the new eligibility funding has been allocated to legal clinics to support increased eligibility for clinic services and to address the underfunding of clinics, whose share of the low-income population has increased over the years.
Announcements have just been made on the allocation of money from a new $3.3 million provincial fund to support clinic projects that provide new services to clients. As income thresholds expand, client needs will change. As a result, new services are being offered in areas such as employment law, where client need is expected to increase.
LAO is involved in a number of justice system improvement initiatives. The Attorney General has established roundtables in criminal and family law, and LAO is participating in both of them. Bail is one of the topics on the criminal roundtable’s agenda. LAO is also contributing to the Ontario Court of Justice criminal modernization initiative. In February 2016, LAO was invited to speak to a Senate committee that is looking at criminal justice system delay.
In December 2015 the LAO Board approved the development of three new LAO client strategies, in relation to bail, prison law, and services for racialized communities. A prison law test case strategy has also been approved. There are other strategies that are focused initiatives to improve service provision to vulnerable groups:
The first was the Aboriginal Justice Strategy.
The new Mental Health Strategy, which has been in development for three years, has just been launched. It has been posted on the LAO website and will be circulated to the committee.
LAO is also currently developing a Domestic Violence Strategy.
The LAO updates and proposed priorities for 2017/2018 slide deck contains highlights from LAO’s current business plan. It includes the business plan priorities that were discussed with the committee in the fall, and a review of the past year’s accomplishments. The latter included the creation of the interim mental health appeals program and the implementation of strengthened immigration and refugee panel standards, which also involved a re-empanelment process. LAO is reviewing and evaluating its experience with the refugee panel to see what aspects might be applied in other areas.
The LAO updates and proposed priorities for 2017/2018 slide deck also provides an overview of the current business plan’s environmental scan. The number of criminal cases has been on the decline for the past several years, and this has had a major impact on certificate issuance. The number of refugee cases, in contrast, is on the increase. LAO’s service statistics show that the “greying” of the legal aid bar is not a serious problem, as there are significant numbers of younger lawyers doing legal aid work.
LAO is no longer restricted in being able to make its business plans available to the public, and expects to post its public business plan on the LAO website in the coming weeks.
It was noted that the recipient of LAO’s Sidney B. Linden Award for 2015 is criminal lawyer Bob Richardson, who was presented with the award at a recent ceremony.
Members provided input and advice. The views expressed below do not necessarily reflect the views of every member:
Quality service was identified by several members as a very important issue. Members were interested in LAO’s experience with the new immigration and refugee panel standards, noting that quality of counsel is particularly important when assisting the most vulnerable clients. It was suggested that quality improvement, rather than a disciplinary emphasis, should be LAO’s primary focus. It will be important not to turn lawyers away from legal aid work, or to make it more difficult, from an administrative standpoint, for them to take legal aid cases. At the same time, the quality of publicly funded services to vulnerable clients must be ensured. While several change of solicitor applications does not necessarily mean that something is wrong, it could be a red flag indicating quality concerns. It was also suggested that LAO’s quality focus should emphasize file management improvement.
Mentoring was identified as important, and linked to quality of service. Not all new lawyers have access to senior lawyers or work in a firm where there is a culture of mentorship. Many are “lone wolves.” Eligibility expansion has made certificates more widely available and may be encouraging people with less experience to take on the work. Often the people most in need of mentoring are those who never seek it out. The advice was that new members of the legal aid panel should be encouraged to work with mentors, including through LAO’s Second Chair mentoring program. Mentorship could be made a condition for panel membership for some lawyers. Also, LAO could have a senior lawyer randomly contact newer certificate lawyers to ask them how they are doing, and what their strategy is for a particular case. It could be very beneficial for a senior lawyer to take someone through a case if that person does not demonstrate the necessary familiarity.
The steady drop in the number of criminal cases may be levelling off. Recent declines have been less dramatic, and the numbers for 2015, when they are available, may show that the declining trend is flattening.
4. Criminal law update and discussion
LAO’s Director, Policy and Strategic Research, provided the criminal law update.
In 2015, LAO implemented three bail expansion initiatives—bail reviews, second bail hearings and bail variations. The numbers to date for these services are not high, suggesting that the bar may not yet be sufficiently aware of the expansion.
The judiciary continues to provide positive feedback and support for the Superior Court of Justice criminal duty counsel pilot project in Toronto and Brampton. This project helps to expedite the Rowbotham (applications for court-appointed counsel) process.
LAO is also working to develop an enhanced inmate services pilot project in Milton, where staff duty counsel are providing early intervention assistance to inmates with mental health issues at Maplehurst and Vanier correctional institutions.
LAO has been working and consulting with justice system stakeholders on developing guidelines for duty counsel on when they can provide assistance to clients who already have a relationship with a lawyer. Meetings have taken place with the Criminal Lawyers’ Association and the Family Lawyers’ Association.
The senior staff litigator program at LAO is fully operational, with no plans to expand the number of litigators. On average, the senior litigators are carrying 25 to 30 open cases.
LAO’s policy work in the area of criminal law has recently been focused on broader justice system improvement efforts. These have included the Attorney General’s Criminal Justice Roundtable and the Ontario Court of Justice’s Criminal Justice Modernization Project. The latter has been looking at mandatory second judicial pre-trials in some locations. LAO has an obligation under the Legal Aid Services Act to proactively advise the government on all aspects of legal aid services in Ontario, including justice system issues that impact legal aid services.
Bail issues have been successfully raised at:
the Senate, where LAO presented and made recommendations to the committee studying justice system delay, and
the Criminal Justice Roundtable, where LAO and the John Howard Society of Ontario (JHSO) made joint recommendations on bail that included ideas for pilot projects.
LAO has also made submissions to the Ministry of Community Safety and Correctional Services on street checks and carding, and these submissions along with the bail submissions and LAO’s submission to the Senate have been circulated to the committee.
Members provided input and advice. The views expressed below do not necessarily reflect the views of every member.
Support was expressed for LAO’s bail strategy paper and its submissions on justice system issues. It was felt that LAO’s submissions, which are practical and well-written, can influence the government and other actors in the system, and lead to change. LAO’s submission on carding is a sensible document that will likely have an impact on future directions. LAO’s Bail Strategy paper is concise and well-written, and is also likely to be influential. The bail pilot project recommendations made by LAO and the JHSO, such as the recommendation for bail beds and for keeping bail courts open later, present good, practical ideas. It will be interesting to see what happens next, including at the federal level. Although LAO’s submission to the Senate does not ask for funding for legal aid, it does ask for support. The federal government can assist in some areas, including in mental health and Aboriginal issues.
LAO should share the information in its update on the senior litigation program with the bar. It would help to build more trust between LAO and the private bar if the bar could see how many senior litigators there are, what they do, and that LAO does not plan to expand the senior litigator program.
Members expressed mixed views on mandatory second judicial pre-trials. While they are sometimes needed, they are not always necessary, and they do not always have the desired effect of reducing the trial collapse rate. The pilot project should be evaluated for effectiveness. LAO was also encouraged to suggest the idea of attendance by telephone as a means of saving time and money and eliminating delays. Attendance by telephone is allowed if the judge approves.
Lawyers may not understand how to bill for a second bail hearing or bail variation, which may account for lower levels of uptake of these services. New calls, in particular, need access to training on proper billing. The committee was advised that LAO will bring back its training on better billing.
LAO staff lawyers should not be getting involved in cases under s.486 of the Criminal Code. These cases do not properly fall under LAO’s mandate, and these clients tend to get representation without the involvement of legal aid. It would be best for staff lawyers to do meaningful work that addresses gaps in access to justice, such as representing people who do not qualify for a certificate because they do not face the likelihood of jail and their case does not meet the test case criteria.
Two hours is not enough time for a bail hearing, particularly when the hearing itself takes two hours because every surety has to be cross-examined. There will never be any real change on this matter unless some direction comes from the Attorney General. A recent story in the National Post (When bail courts don’t follow the law, March 16, 2016) highlights the extent to which the bail system has become dysfunctional.
Members were curious about LAO’s services for victims of sexual assault. Other than LAO’s coverage for O’Connor/Mills (third-party records) applications, all of LAO’s coverage is in the area of family law. The Ministry of the Attorney General is working on an initiative to provide independent legal advice to victims, but LAO is not involved.
Interest was expressed in following up at the next meeting on a new sentencing circle initiative at Old City Hall courthouse in Toronto.
5. Action items
LAO will provide the committee with annual statistics on the number of lawyers removed from legal aid panels. If possible, this information will include the percentage of removals that relate to quality (as opposed to billing) concerns.
The committee will be advised when LAO’s business plan is posted on the LAO website.
LAO will share its update on the senior litigator program with the bar.
6. Other business