Chapter 1: Introduction

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THE ORIGINS AND PURPOSES OF THIS REVIEW

The Ontario Legal Aid Review was established by the Attorney General of Ontario on December 13, 1996, with a mandate to undertake a thorough analysis of the various programs that comprise the current legal aid system in the province and to make recommendations regarding the future direction those programs should take. Although the various aspects of legal aid system in Ontario have been the subject of numerous studies over its three decades of existence, recent events suggested a fresh examination-for the first time since 1965, on a comprehensive scale-would be timely and appropriate. An understanding of the purposes of this Review rests on an understanding of the origins and nature of the legal aid system in Ontario.

When the Ontario Legal Aid Plan was established in 1967, its structure reflected three cardinal principles. First, the program services to be made available to low-income Ontarians were to be delivered according to what has come to be known as the judicare model. That is, services would be provided by private members of the practising bar in Ontario on the basis of certificates issued by the Plan to persons eligible for legal aid. Lawyers delivering services on this basis would be compensated by the Plan at legal aid tariff rates.

The second important principle was that the legislation creating the Plan envisaged that eligible individuals are entitled to legal aid. Thus, the enabling legislation conferred a right to legal aid upon eligible persons. As a result, the cost of the legal aid system to the provincial government was demand-driven. The more eligible people who sought and obtained certificates, the greater the expenses of the Plan in any particular fiscal year. In this respect, legal aid was not unlike a number of other benefit programs established in Ontario and elsewhere during this period.

The third principle was that the Plan operated as a partnership between the province, which funded the Plan and the Law Society of Upper Canada, the governing body of the legal profession, which was assigned responsibility for administering the Plan.

These central features of the Ontario legal aid system had obvious implications for the way in which the Plan functioned. The Law Society ensured that the Plan issued certificates to eligible persons and that its members provided services to low-income Ontarians on the basis of those certificates. For its part, the province paid all of the accounts rendered by service providers during each fiscal year. Although the costs in any particular fiscal year might exceed, perhaps dramatically, the resources allocated to legal aid in a previous year, this would not result in the plan being "over budget" in any meaningful sense. The notion of a "cost overrun" simply has no meaning in a demand-driven entitlement system of this kind.

During the past thirty years, methods of delivering legal aid services other than the certificate system have been devised. At an early stage, the Plan implemented and later expanded a series of duty counsel operations which typically provide advice at the courthouse in criminal law and family law cases. As well, beginning in 1971, a system of community clinics was instituted in the province offering what is often referred to as "poverty law" services in fields of law, other than family law and criminal law, which have significant impact on the lives of low-income Ontarians. Unlike the certificate program, the community clinics have always operated under funding caps: both for the system and for individual clinics. For the most part, however, provision of services on a judicare basis has remained the central feature of the Plan and the legislation upon which it is founded.

The demand-driven, entitlement nature of the certificate part of the Plan had serious implications for the way in which the Plan was managed and for the arrangements concerning its annual budget. For example, as the Plan did not attempt to maintain accounts of accrued liabilities for work done but not yet billed, at any particular time, the Plan would not be able to estimate precisely its outstanding liabilities. There was simply no need for such information under a Plan with open-ended funding and for which, the province simply paid, on a cash basis, the accounts rendered during a particular fiscal year. From the perspective of the provincial government, of course, social programs of this kind complicated its own budgeting and planning exercises.

Economic downturns at the opening and closing of the 1980s weakened the enthusiasm of many governments in Canada and elsewhere for open-ended funding for programs of this kind. It is increasingly the case in Ontario and elsewhere that such programs are being brought under fixed annual budget allocations, or "caps". The moment for capping the legal aid system in Ontario arrived rather abruptly in 1994, when, after a period of dramatic escalation in the annual cost of the judicare side of the system, the province of Ontario imposed a cap on the funding of the certificates program. At that time, a Memorandum of Understanding (MOU) was entered into between the Law Society, as manager of the system, and the government of Ontario. The MOU was to govern the relationship between the Society and the province with respect to legal aid for a five-year period, until March 1999. Under the MOU, it was agreed that there would be a fixed annual budget for the provincial contribution to the Plan during this period. The annual provincial contribution was specifically identified and the amount of those contributions was to decline throughout the five years covered by the MOU.

The transition, on short notice, from an open-ended system to a capped system could not be expected to be smooth and, indeed, it was not. As we document in this Report, the imposition of a budgetary cap sent a series of shock waves through the administration of the Plan and its service-delivery systems. After an initial period of uncertainty regarding the ability of the Plan to cope with such a dramatic change in its structure, the situation stabilized inasmuch as it became apparent that the measures being undertaken by the Plan would likely enable it to meet the budgetary objectives set out in the MOU.

With the legal aid system having reached a period of stability in financial matters at least, and with a further twenty-seven months before the expiry of the MOU in March 1999, this Review was established at the end of 1996 with a mandate to consider all aspects of the legal aid system in Ontario and, more particularly, to evaluate what implications the imposition of capped funding would have on the system's future design, administration and governance. The Review was set up as an independent task force in the sense that its members are employees of neither the public service nor the Plan, and in the sense that no constraint was placed on the nature of the advice we might give in carrying out our mandate. The members of the Review include a judge of the Ontario Court (General Division); three practising lawyers, one of whom has since become a judge of the Ontario Court (Provincial Division); one of whom practices criminal law and another of whom practices family law; an accountant who currently serves as the Ministry of the Attorney General's monitor of the Plan; a community development worker associated with a community health centre; and, as Chair, a law professor who recently served as Chair of the Ontario Law Reform Commission. The Review was asked to complete its work by the end of June 1997.

THE TERMS OF REFERENCE OF THE REVIEW

The Terms of Reference of the Review are both comprehensive and, especially in light of the short timeline established for the completion of its task, rather challenging. The mandate and scope of the Review were described in the following terms:

Mandate

A comprehensive review of legal aid in Ontario will be undertaken. The review will consider all legal aid programs in the province with the objective of identifying aspects that should be reduced, maintained, or enhanced, including new ideas in the management and delivery of legal aid in order that the current and future legal needs of low-income residents of Ontario can be met in the most effective and efficient way possible within the existing funding allocation.

Scope

The legal aid system will continue to have a fixed, not open ended, budget from the provincial government. The legal aid system should be flexible enough to adjust to the possibility that provincial and federal resources currently dedicated to legal aid could be reduced, maintained, or enhanced as well as to the fluctuations in the need for legal aid services.

The government has initiated a fundamental transformation of the justice system in Ontario in order to create more focused, better integrated institutions and procedures. Examples of these changes include the Criminal Investment Strategy and the Ministry's Business Plan. The report will ensure the legal aid program reflects this new direction without compromising the program's independence or client interests.

As well, the Review was invited to consider the existing needs for legal aid services; the range of possible delivery models, or combinations of them, that might be responsive to those needs; the problem of establishing priorities for the delivery of legal aid services within and among various areas of substantive law; and finally, various issues relating to the administration and governance of the legal aid system, most particularly, the question of what body is the most appropriate to be responsible for the governance of the legal aid system. In addition, the Terms of Reference of the Review suggested a range of methodologies that might be used to carry out this assignment and, further, undertook to provide the necessary support for a program of research and consultation.

THE ORGANIZATION OF OUR WORK

In an attempt to inform ourselves as fully as possible about the current challenges facing the legal aid system in Ontario, and to obtain as broad a range of advice as possible regarding the potential means of meeting those challenges, we adopted three strategies.

First, we extended an open invitation to all interested parties to make written submissions to the Review. Second, we organized a series of public meetings and meetings with key stakeholder groups across the province. Third, we engaged the services of a Director of Research and, in collaboration with him, retained a number of consultants to prepare background papers on various topics related to the mandate of the Review. A brief description of our implementation of these strategies follows.

In order to facilitate wide participation in our consultative process, we prepared and distributed across the province early in 1997 a discussion paper requesting submissions in writing to the Review by the middle of March. The discussion paper provided background information concerning the current operation of the legal aid system in Ontario. It then identified a number of consultation questions concerning such issues as client needs, the goals of the legal aid system, the range of coverage of the system, the types of delivery models to be used, clients' financial eligibility, the impact of the recent budget constraints, the financing of legal aid, the relationship of legal aid to the larger justice system, and various questions relating to the management and governance of legal aid. The response was remarkable. Over the next few months we received more than 170 written submissions from a broad range of sources: briefs from major legal organizations, including two lengthy briefs from the Law Society; from many clinics, and an umbrella committee for the clinic system; from many Area Directors of the Plan; from a variety of groups representing the interests of the clients of legal aid; from a committee of judges of the Ontario Court (Provincial Division), from individual lawyers and other professionals with an interest in legal aid issues; and from individuals who wished to recount their experiences of and encounters with the legal aid system. We have attempted to summarize this rich harvest of information and advice in Appendix A to this report.

In addition to reviewing written submissions, members of the task force believed that it would be useful to meet with individuals who have an interest in the legal aid system, whether as service providers, administrators, clients, or individuals working in other social service fields who have contact with the clients of legal aid. Accordingly, we organized a series of public meetings across the province. Hearings of this kind were held in Barrie, London, Ottawa, Sudbury, Thunder Bay, Windsor, and Toronto. In each centre, we scheduled meetings with community groups, groups of lawyers, Area Directors, clinic directors, duty counsel, women's groups, and other client-related organizations. As well, we held walk-in sessions for members of the local bar and, in the evenings, open public meetings. In each community, we typically visited courthouses, met with judges, and, to the extent possible, observed proceedings. In Toronto, we made two planned visits to courthouses, observed proceedings, sat in with duty counsel as they interviewed clients, and held discussions with members of the judiciary. In Toronto, as in other communities, we attempted to meet with stakeholder groups as well as members of the general public. Two evening public sessions were held at community centres in Toronto.

Our meetings across the province were undertaken with a view to determining whether, as we suspected, the challenges facing the legal aid system vary to some extent from one community to the next, and with a view to learning more about those challenges in particular community settings. To make only one obvious comparison, the problems of providing legal aid services to Aboriginal communities in Northern Ontario, about which we learned a good deal in our consultations in Thunder Bay and Sudbury, differ significantly from those of providing family law legal aid services in larger urban centres such as Ottawa and Toronto. The challenges may be equally daunting, but they are very different in nature.

Members of the task force found this consultation process to be a very informative and helpful one. We came away from this exercise with our understanding of the operation of the current legal aid system much increased. Further, we developed a stronger sense of the profound impact that the recent service cuts have had on individuals and their families, and indeed on the administration of justice as a whole. We were impressed, as well, by the strong sense of dedication and commitment we sensed on the part of both service providers and others connected with the legal aid system. We also became very aware of the level of frustration that many are experiencing in attempting to meet the legal needs of low-income Ontarians at the present time.

Further, we came away with a very strong sense of appreciation for the high level of cooperation afforded to us by those who made written submissions, by those who participated in public hearings and stakeholder meetings, and especially, by those individuals across the province who kindly assisted in organizing the sessions.

Our research program was designed to provide the Review with a base of information and analysis that would further facilitate the deliberations of the members of the Review. Thus, background papers were commissioned that would analyse various issues relating to the governance of the legal aid system, the range of possible delivery models for providing publicly funded legal services, and the considerations weighing in favour of and against use of particular models in particular contexts. Still other papers were commissioned to provide us with advice with respect to the legal constraints arising from Canadian constitutional law and other legal sources on the province's ability to design its legal aid system, and on the manner in which legal aid services are organized and provided in other jurisdictions. Another paper analysed, from the perspective of political or democratic theory, the underlying rationale for publicly funded legal services and related this analysis to the problem of priority-setting in the legal aid context.

Another series of papers provided case studies in various areas of service delivery. Papers examined the major areas of expenditure by the system-namely, criminal law, family law, "poverty law" and immigration and refugee law. Advisory Teams, the members of which are listed in Appendix C, were established for each of these case studies. More specific studies were undertaken on subjects we believed had not received sufficient attention either in the existing literature or in the materials we assumed would be presented to the Review during the consultation process. Two papers were commissioned on issues relating to delivery of services to Aboriginal communities in Northern Ontario and to Aboriginal persons living in urban centres. Another paper focused on the particular problems in obtaining legal aid services experienced by individuals suffering from mental disabilities in various contexts. Finally, a paper was commissioned to address various issues relating to the existing needs for legal aid services and the manner in which those needs might, over time, be examined and assessed. As well, this paper presented as much information as could be gained in a relatively short period of time concerning the impact of recent funding constraints in Ontario on the delivery of legal aid services.

The high level of cooperation we enjoyed in our consultation process was equalled in our research program. The researchers who agreed to assist us in our work undertook, on very short notice, very burdensome assignments with unusually short timelines. They provided us with a body of work which has not only greatly informed our deliberations, but has, as well, made a significant contribution to the analysis of policy issues concerning legal aid. These background papers are reproduced in volumes II and III of this report.

A question often asked of us during our consultations concerned the relationship of this Review to the study of legal aid prepared by Professors Zemans and Monahan of Osgoode Hall Law School, York University, which was released in March 1997. The short answer is that there is no formal connection between the two studies. The study by Professors Zemans and Monahan was undertaken on their own initiative, and funded by a private foundation grant. This Review was established by the Attorney General as an independent task force, funded by the Ministry, charged with the task of providing the Attorney General with advice on reform of the legal aid system. We wish to acknowledge, however, our indebtedness to the work of Professors Zemans and Monahan. Once the Review was established, they kindly made their own research papers available to us, including a number of studies on legal aid in other jurisdictions. The publication of the Zemans and Monahan study was also helpful to us as it further provoked and contributed to public discussion of legal aid issues in the midst of our program of public consultations. Although there was thus no formal connection between the two studies, attempts were made by the Review to avoid duplication of research efforts and to profit from the public discussion flowing from the publication of the Zemans and Monahan study.

THE PLAN OF OUR REPORT

Part I of this report provides an account of the historical background of legal aid in Ontario and an analysis of critical policy issues relating to legal aid. Chapter 2 summarizes the history of the legal aid system in Ontario and the recent events briefly alluded to above. As well, we attempt in chapter 2 to identify the primary factors that contributed to the dramatic increase in expenditures on the judicare system during the late 1980s and early 1990s. Against this background, chapter 3 profiles the current legal aid system in the province, its legislative framework, system of governance, delivery models, sources of funding, the case types for which services are provided, and the manner in which eligibility for legal aid is determined.

The remaining chapters in Part I address a number of analytical issues that, in our view, must be accommodated by the designers of a legal aid system. Chapter 4 discusses the kinds of occasions in which low-income Ontarians experience a need for legal services and considers, as well, various difficulties associated with the question of identifying and quantifying such needs. Chapter 5 attempts to identify a principled basis for setting priorities for service delivery in a legal aid system. Chapter 6 places the legal aid system within the context of the larger justice system and considers the implications for the legal aid system of the fact that legal aid expenditures are, to a considerable degree, contingent upon the general structure of the administration of justice within the province. More particularly, this chapter considers what the role of a legal aid system ought to be in promoting change within the larger system to facilitate better access to justice and a more efficient delivery of legal aid services. Chapter 7 provides an extensive analysis of delivery-model issues, canvassing the broad range of possible delivery models that might be deployed by a legal aid system and assessing the considerations that weigh in favour of or against their use in particular service contexts.

Part II of the Report sets out our plan or blueprint for the legal aid system in Ontario, drawing together and articulating the lessons we have learned or the principles we have drawn from our examination of the current legal aid system in Ontario and from our examination of the various issues explored in various chapters of Part I. In chapter 8, we urge upon both the legal aid system and the province a renewed commitment to legal aid in the form of an exchange of commitments drawn from these basic principles. We recommend that a number of commitments be made on behalf of the legal aid system with respect to its functioning, and, as well, a corresponding set of commitments be made on the part of the province. Thus, we encourage a shared and fundamental agreement on the basic mandate of the legal aid system. We believe that a renewed set of commitments of this kind is essential to maintaining a legal aid system that can deliver high-quality legal services to low-income Ontarians across the broad range of service areas.

In the subsequent chapters of Part II, we attempt to work out the implications of these principles or commitments for service delivery in particular areas. Chapters 9 to 13 cover the main service areas of the existing legal aid system: criminal law, family law, "poverty law", immigration and refugee law, and so called "other" civil law. A number of service-delivery themes emerge from these case studies. We have attempted to propose delivery models that will promote early identification and assessment of the legal needs of potential clients, facilitate diversion to non-legal service providers where appropriate, and manage the intake of eligible clients into the legal aid system based on their needs and a clear, principled set of priorities for the system. Our proposals are designed to promote early resolution of legal matters and the provision of targeted and appropriate legal assistance across the full range of legal needs. We have proposed an expansion in the mix of available service providers in order to improve quality of service, promote cost-effectiveness, increase accessibility, and allow legal aid managers to evaluate the operation of alternative delivery models. Finally, we have attempted to conceive a system designed to ensure flexibility and to identify and meet priorities and changing needs within a capped budget.

In chapters 14 and 15, we turn to issues relating to the funding of the legal aid system and its governance. In chapter 14, we suggest a number of measures designed to strengthen the system's financial-planning capacity. In chapter 15, we attempt to identify the ideal characteristics of a governance model for legal aid, and then consider whether a larger set of those characteristics can be captured by establishing a new governance model for the legal aid system in Ontario.

In brief, our deliberations have led us to conclude that the major challenges confronting the legal aid system can best be met by undertaking a substantial rethinking of the structure of the system and its methods of accommodating the needs of low-income Ontarians for legal services. Having made such proposals, we came to the view that it would be appropriate to demonstrate that a practical and financially feasible plan could be developed for implementing proposals of this kind in a reasonably short timeframe. This we have attempted to do in chapter 16.

At the end of each chapter, we itemize the recommendations made in that chapter. Part II of the report is followed by the Summary of Recommendations, which sets out a complete list of the Review's recommendations.