Board advisory committees

Minutes of Legal Aid Ontario Aboriginal issues advisory committee, on March 17, 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).

Guest

Chelsea Krahn

1. Welcome and introductions

Chair John McCamus opened the meeting and welcomed those present.

2. Minutes, September 21, 2015

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

3. LAO business planning slide deck and discussion

The Chair provided an overview of the LAO updates and proposed priorities for 2017/2018 slide deck. The deck outlines the advisory committee process, through which the committees focus on environmental scanning in the spring and look at ideas for the business plan in the fall. The deck also provides highlights of the current business plan and its environmental scan.

Updates were provided on recent developments at LAO.

LAOs Board has approved the proposal to post public minutes of advisory committee meetings on the LAO website. The Board adopted the suggestions made by the committees when they were consulted about this proposal at the fall 2015 meetings, including that:

  • minutes will be circulated and approved by the committees prior to posting
  • confidential information and members contact information will not be included
  • comments will not be attributed to individual speakers
  • attendance at meetings will not be recorded.

It is intended that the names of members will be listed on the website, along with a brief biographical statement or listing of their organizational affiliation. While the initial proposal involved the creation of two sets of minutes, they are so similar that only one set will likely be prepared in the future, with any confidential information being provided to the Board in a covering report.

After nine years as LAOs President and CEO, Bob Ward retired in December 2015. Following a search process, David Field was appointed as LAOs new President and CEO. During his career in the public service, David was on the team that drafted the legislation that created LAO, and he has been a vice-president at LAO. Since his appointment, he has been meeting with many stakeholders.

Expanded eligibility for legal aid continues to be the biggest new development at LAO. The eligibility standard was reduced in the 1990s and was not adjusted for 20 years. The Wynne government was concerned, and in 2014 responded to LAOs business case for gradually raising eligibility to the level of Statistics Canadas Low Income Measure over a period of seven to 10 years. On April 1, 2016, LAO will implement the third six per cent increase to the eligibility guidelines since November 2014. In 2015, legal eligibility was also expanded, with the result that legal aid is now available for more kinds of cases. The impact so far has been very positive, with LAO on track to issue an additional 20,000 certificates this fiscal year. LAO hopes for a commitment for another three or four years of eligibility increases.

The LAO updates and proposed priorities for 2017/2018 slide deck indicates the areas where certificate increases have been most pronounced. In criminal law, where the loss of liberty test was relaxed to allow certificates to be issued to some first-time accused not facing incarceration as well as to accused facing serious secondary consequences, the greatest increase has been in certificates for adult minor offences. In family law, where coverage was severely cut in the 1990s, the greatest increase has been seen in cases involving domestic violence. It was noted that the upward trend in certificates issued has been similar for both Aboriginal and non-Aboriginal clients.

Twenty per cent of the new funding has been allocated to legal clinics. This year, $6.7 million in base funding was distributed, in large part responding to the underfunding of clinics whose proportional share of the low-income population has increased over the years. An additional $3.3 million was awarded through a provincial fund for proposals for new services. The clinic community has reacted positively to the new funding.

LAO is actively participating in a number of justice system improvement initiatives now underway. The Attorney General has established criminal and family justice roundtables, and LAO is involved in both. The criminal roundtable is focusing on mentally ill accused, and bail is one of the topics on the agenda. The Ontario Court of Justice has a criminal modernization process underway, and the current focus is on pre-trial preparation. In February, LAO was invited to make a presentation to a Senate committee on criminal justice system delay.

LAOs approach to examining and improving services to priority client groups through the vehicle of client strategies is continuing:

  • The Aboriginal Justice Strategy (AJS) was the first client strategy

  • The second client strategy, the Mental Health Strategy, has just been released, with a public launch at Sound Times.

  • LAO has been consulting on and is currently working on developing a Domestic Violence Strategy.

  • In December, the LAO Board approved the development of new strategies focusing on bail, prison law, and racialized communities.

  • A test case strategy for prison law, with strategic priorities for test case litigation in this area, was also approved in December.

The LAO updates and proposed priorities for 2017/2018 slide deck includes highlights of the current years business plan, including the business plan priorities that were reviewed with the committee in the fall. The overview of the business plan also includes highlights of the environmental scan, including LAO service trends and statistics.

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

  • Several members suggested that LAO consider using Indigenous instead of Aboriginal in the future. Although LAO has been encouraging the use of First Nation, Mtis and Inuit, this terminology leaves out some groups of people previously referred to as not having status. Other organizations have changed their names to reflect the growing preference for the use of Indigenous.

  • The committee was interested in staying informed about LAOs development of a prison law strategy. LAOs prison law and prison law test case strategies should include a priority focus on Indigenous inmates, given their over-representation in the system. There are many issues that affect Indigenous clients that would be appropriate for test case litigation, including issues of classification, denial of programs, separation from family members, and the fact that these inmates are less likely to be granted parole. LAO should not simply assume that the Indigenous perspective will be raised in cases that deal with these issues, and should make sure that it is specifically addressed.

  • LAO was encouraged to maintain a focus on access for young First Nation, Mtis and Inuit people. LAOs recent expansion initiatives have expanded access for youth, and many youth also receive representation through s.25 orders, but it was noted that the s.25 process creates a barrier for young people. There is a risk that, instead of navigating the s.25 gauntlet, a young person will simply plead guilty. It was noted that financial eligibility is a greater bar to access for young people in geographic areas where the cost of living is high.

  • Members felt that LAO has a role to play in intentionally developing the law on the application of Gladue principles at bail. There is crossover here between the AJS and LAOs strategies for bail and prison law, as well as the prison law test case strategy. Creative approaches are needed. LAOs Gladue panel needs to include a focus on bail; alternatively, LAO could consider creating an Indigenous bail panel.

4. Aboriginal Justice Strategy update and discussion

LAOs Aboriginal Justice Strategy Policy Counsel and Operational Business Analyst updated the committee on Aboriginal Justice Strategy (AJS) initiatives.

Over the past two years, Gladue report writing services have been made available to most of the province. LAO will be extending its contracts with Aboriginal Legal Services of Toronto, Ground Council Treaty #3 and Nishnawabe-Aski Legal Services Corporation for the provision of these services in their respective catchments. LAO is planning to work with the Ministry of the Attorney General and the Department of Justice Canada to conduct an evaluation of Gladue report writing services in Ontario.

LAO is continuing to build partnerships with local communities to support the development of a localized, responsive model for delivering legal aid services. Through the AJS, legal advice clinics are now available in six new community locations, bringing the total number of these clinics to 26. LAO also continues to support community justice initiatives such as alternative dispute resolution programs.

LAO is also working to improve its understanding of legal needs and to strengthen its internal capacity to provide services to First Nation, Mtis and Inuit clients. LAO has been sharing information and obtaining feedback from the Aboriginal Issues Advisory Committee. District advisory committees have also been formed, and Indigenous participation on these committees has been encouraged.

Beginning in June 2016, LAO duty counsel will be giving their clients the opportunity to self-identify as First Nation, Mtis or Inuit. LAO is working on ways to be more inclusive in asking the self-identification question, although it has been written into the system and is difficult to change for that reason. The committee was thanked for its feedback on LAOs training for duty counsel and LAO staff taking applications.

LAO has been assessing how its work aligns with the recommendations and calls to action of the Truth and Reconciliation Commission:

  • For example, in regard to the first call to action, which is focused on keeping children within families, LAO funds Aboriginal alternative dispute resolution and has introduced new client services in the area of child protection. LAO is developing materials to raise awareness about the new services.

  • LAOs development of cultural competency training aligns with call to action 27.

  • Call to action 30, which addresses the over-representation of Aboriginal people in custody, is a top priority for LAO and the AJS in the area of criminal law services. The election of a new federal government may lead to legislative changes that will help to address the issue of over-representation. The only real data on over-representation that is available comes from the prison system, but more statistics are needed, particularly on bail and length of sentence. The provincial governments recent release of an open data directive may be a catalyst that provides an opportunity to learn more.

The national association of Canadian legal aid plans, ALAP, has adopted a more advocacy-focused mandate and they are interested in Aboriginal issues and perspectives.

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

  • LAO has a role to play in hub and spoking, to help lawyers and communities connect and network on important Indigenous issues. The law in this area is developing, and exciting conversations are taking place, but no network is visible and accessible to all participants. For legal aid practitioners, a Gladue panel intranet could, possibly, do this. The question is how big a structure is needed to allow all of the communities of practice to come together.

  • The committee was supportive of LAOs work in the area of child welfare, including the development of front-end advice services. More resources and tools are needed for lawyers working in child welfare.

  • Over-representation needs to continue to be a priority for LAO. Perhaps LAO can assume a leadership role because there does not seem to be an intergovernmental plan or vision in relation to what has to change to address Aboriginal over-representation. These conversations need to be facilitated in order to break down silos.

  • Ontario is currently reviewing the Police Services Act and over-policing is a key driver of over-representation. It would be good to do an advocacy piece around this, as LAO is doing with bail through its Bail Strategy. LAOs submission on carding and street checks addresses issues of over-policing.

  • It was suggested that an access to justice initiative under the AJS could be to not apply financial eligibility testing in Gladue courts. People who do not meet the eligibility test are going unrepresented in Gladue court.

5. Action items

  1. LAO will share its 2015 submissions to the Ministry of Community Safety and Correctional Services (MCSCS) on carding and street checks with the committee. The submission is on LAOs website.

  2. LAO will look at how financial eligibility is being applied in Gladue courts.

6. Other business

None was raised.