Section V: Summary Of Submissions And Consultations
I. FUNDING ISSUES
a) Certificate System
i) Hourly rate
All of the organizations representing legal aid certificate lawyers emphasized the inadequacy of hourly rates and noted that the rates have not kept up with the cost of inflation. The submissions referred to the recommendation in the Holden-Kaufman Report, commissioned by LAO in 2000, that hourly rates should range from $105 to $140 in order to ensure accessibility and quality of legal aid services.
Most submissions noted that fewer lawyers are willing to do legal aid work than in the past, with some submissions stating that it is becoming harder for legal aid clients to find a lawyer. The Criminal Lawyers' Association (CLA) argued that the low tariff leads to more junior counsel taking on legal aid cases, which can result in cases taking longer to resolve, particularly for complicated cases such as criminal megatrials.
Several submissions noted that young lawyers are not going into legal aid work. The low hourly rates as compared to private practice rates are viewed as a reason for this, in addition to the increased law school debt that young lawyers face upon graduation. The CLA expressed concern about a lack of students interested in articling in criminal law, which they believe may also be linked to greater law school debt, as well as the inability of many criminal lawyers to afford to hire articling students.
The CLA also submitted that the imbalance in pay between Crown counsel and legal aid criminal defence lawyers, as well as the financial investments that have been made in police and judges, raise concerns about perceptions of fairness in the justice system. A number of other organizations, including the Association of Legal Aid Lawyers and the Association of Staff Duty Counsel, also expressed concern about the inequity in salary between government lawyers and legal aid lawyers, and the perceived negative impact it has on the legal system.
ii) Tariff review mechanism
Organizations representing legal aid certificate lawyers urged the adoption of a regular tariff review mechanism in order to avoid past situations where the tariff was increased only in response to a crisis. Most commonly, submissions recommended that a review happen every three years, with annual increases in other years tied to an external market indicator, such as the Consumer Price Index.
The Criminal Lawyers' Association stressed the need for a binding review mechanism, on the grounds that numerous non-binding recommendations for tariff increases have been made in the past with very little effect. The CLA suggested that factors to be included in tariff reviews could include the ability to recruit and retain lawyers in the legal aid system, changes in the economies of practices, and changes in law, practice and policies.
Because tariff increases could impact on other budgetary considerations, the Association of Community Legal Clinics of Ontario (ACLCO) argued that any tariff review mechanism should also address the overall budget of LAO. ACLCO recommended a review that is conducted by an independent party and that ties increases to an external measure.
In the event that the responsibility for setting the tariff was transferred to LAO, some stakeholders felt that LAO governance would need to be examined more closely.
iii) Hour allocations
The submissions contain a number of suggested increases to the hours allowed. In criminal law, for example, changes were urged for bail hearings, Charter applications and pre-trials. Criminal lawyers indicated that summary conviction matters can take as long to defend as indictable offences, but that reality is not reflected in the tariff. The African Canadian Legal Clinic supported the use of block fees for bail hearings.
The Family Lawyers' Association indicated that the introduction of the Family Law Rules has made it harder to take on a legal aid case with the amount of hours that are allocated. Child protection matters in particular were identified as being allotted too few hours for the work that is involved. A number of submissions urged additional hours for lawyers assisting special needs clients, such as those with mental health issues.
It was argued that the tariff has also failed to respond to certain changes elsewhere in the justice system. For example, the Ontario Federation of Indian Friendship Centres pointed out that the Gladue case requires the submission of a complex and culturally sensitive report, but the tariff does not provide for the writing of such reports.
iv) Big budget cases
The Ontario Bar Association and the County & District Law Presidents' Association (CDLPA) expressed concern that big budget prosecutions limit the funding for other legal aid cases. Both urged that such cases be funded outside the legal aid system. If cases are not to be funded outside the system, CDLPA and the Criminal Lawyers' Association recommended the creation of an elevated hourly rate, to encourage more senior counsel to take on these complex cases. The Association of Community Legal Clinics of Ontario commented that if the government is going to fund the prosecution of guns and gangs cases, the defence of such cases must also see new funding.
b) Clinic Funding Issues
i) Community clinics
Most submissions dealing with funding for community clinics recommended increases to enable the clinics to serve more people. These submissions are addressed below, under "Coverage Issues". The Association of Legal Aid Lawyers (ALAL) and the Ontario Bar Association both addressed the issue of salaries for clinic counsel. ALAL's submission includes statements from people affected by the low staff lawyer salaries. Several lawyers wrote of their leaving legal aid work due, in part, to insufficient salaries. A clinic director wrote of significant difficulties in hiring lawyers for clinic work. Several law students interested in working for a clinic indicated that they would probably be unable to pursue this career path in light of their student debt.
ALAL emphasized that the significant salary differential between legal aid lawyers and government lawyers implies a two-tiered justice system.
ii) Specialty clinics
Specialty clinics present a number of unique funding concerns. The HIV & AIDS Legal Clinic's submission on behalf of the Executive Directors of the Provincially Mandated Specialty Legal Clinics recommended increases in specialty clinic budgets to address expenses incurred due to their unique nature. Such unique expenses include travel across the province for cases, greater disability accommodations, and specialized research and educational materials. The Metro Toronto Chinese & Southeast Asian Legal Clinic noted the significant translation and interpreter costs of clinics serving non-English speaking communities.
The Ontario Federation of Indian Friendship Centres noted the success of culturally appropriate programmes in addressing Aboriginal issues, and urged the creation of a legal services corporation, with regional offices across the province, to provide a broad range of legal services in conjunction with the programs already available through the friendship centres. This would assist a population that has not been accessing the regular community clinics. Aboriginal Legal Services Toronto commented that it would like to provide a more extensive range of legal services, but that its current funding from LAO precludes this.
Parkdale Community Legal Services (Workers' Rights division) and the Workers' Action Centre urged the creation of a specialty employment law clinic, in partnership with the Workers Action Centre. This would address an area of legal need that contributes significantly to poverty, but is rarely covered under the current legal aid system. A person's status as an employee is important for other benefits such as Employment Insurance, the Canada Pension Plan, and maternity leave. These clinics pointed out that the nature of certain segments of the workforce, i.e. non-standard, part-time, and contract work, results in these workers not being clearly covered by employment standards. Since many of the affected workers are recent immigrants, these clinics argued that better interpretation services need to be provided to make legal aid more accessible. These clinics also advocated that other existing clinics take on these types of cases.
The African Canadian Legal Clinic advocated that new clinics be created to deal with mental health and homelessness, correctional law, employee law, and education law to handle school suspensions.
The Law Society of Upper Canada's Access to Justice Committee was of the view that multidisciplinary clinics that provide legal, social and health services under one roof, should be the way of the future. The Alliance for Sustainable Legal Aid also advocated a system that would have a single entry point for clients.
The Student Legal Aid Services Societies (SLASS) argued for the need to look beyond the law to help resolve certain issues that disadvantaged and vulnerable individuals face. SLASS believes that services and programs should be provided upfront to help keep these individuals from coming into contact with the legal system, e.g. pre-charge diversion programs for youth. SLASS also noted concerns that in terms of budgetary allocations from LAO, some of the student clinics were treated less favourably than regular clinics, despite their dual teaching and service delivery responsibilities.
c) Duty Counsel
The Association of Legal Aid Lawyers (ALAL), as well as the Association of Staff Duty Counsel (ASDC), argued that the low salary paid to staff duty counsel prevents the hiring of experienced counsel. These associations further argued that the cost of funding a per diem duty counsel for a year is a great deal higher than the annual salary of a staff duty counsel. These associations believe that LAO could save money and still pay staff duty more if per diem duty counsel were eliminated.
Aboriginal Legal Services of Toronto (ALST) argued that the duty counsel in the three Gladue Courts work more closely with their clinic in terms of the training they receive. ALST would prefer that Gladue Court duty counsel work as staff in their clinic.
d) General Issues
It was noted by at least one group that changes by the federal government in its transfer payment system in the mid-1990s had a large and negative impact on legal aid's budget and the legal aid services that are consequently available.
A number of organizations commented on the greying of the legal aid bar, which they believe will likely result in an absence of qualified lawyers in the near future who will be willing to take on legal aid work. ALAL made the point that if it were not for the commitment of lawyers doing legal aid work, the legal aid system would have already collapsed.
The Ontario Bar Association (OBA) suggested that funding for LAO should be enveloped, where the government would determine a set amount that must only be used for specific areas of law (i.e. criminal, family, immigration, etc.).
It was pointed out by the Alliance for Sustainable Legal Aid that unmet legal needs can have significant costs for other areas of the justice system, and the broader social system. For example, health issues can stem from a person having to represent themself in family court. The OBA argued that the legal aid system should prioritize early intervention. The OBA believes that putting resources at the front end of the legal process would reduce the demand on other social services.
II. COVERAGE ISSUES
a) Financial Eligibility
A number of groups stated that the current financial eligibility requirements result in too many of the working poor confronting the legal system without representation. The OBA pointed out that in the 1960s the vision for the legal aid system was that no person would be left behind. The Law Society of Upper Canada's Access to Justice Committee pointed out that the only contact that most members of the public will have with the court system is in their family law matters, where there is a rapidly rising number of unrepresented litigants.
In relation to criminal matters, it was pointed out that even if a person meets the eligibility cut-off, they will not receive a legal aid certificate if their charge does not present a risk of incarceration. The African Canadian Legal Clinic suggested that the test should be changed to an assessment of the impact on the individual. The Defence Counsel Association of Ottawa proposed that the prospect of a criminal record, loss of employment, loss of custody of or access to a child, or a Charter violation should all be considered sufficient to gain legal aid coverage.
Several submissions argued that current eligibility criteria are not reflective of current financial realities and impact particularly heavily on already vulnerable populations. For example, the African Canadian Legal Clinic (ACLC) noted that in the criminal system unrepresented and overwhelmed defendants more often plead guilty. The ACLC submitted that the consequences of a criminal record are particularly severe for the Black community, as it feeds into stereotypes and significantly reduces employment opportunities. The ACLC also argued that victims of hate crimes and single parents seeking custody of their children in child protection hearings are facing serious enough situations that legal aid should be available without a financial eligibility requirement. In relation to young offenders, the ACLC argued that the income of the youth's parent should not always be considered when determining whether to provide a youth with a legal aid certificate.
The Metropolitan Action Committee on Violence Against Women and Children (METRAC) expressed concern that women who have experienced violence are often forced to cope alone with complex family law cases at the same time as they are already struggling as working single mothers.
The Law Society of Upper Canada's Access to Justice Committee expressed particular concerns over the very restrictive access to legal aid assistance in family law matters. The Access to Justice Committee emphasized the importance of funding family legal aid to the social fabric of society. The Family Lawyers' Association stated that the existing eligibility criteria have resulted in a lack of access to justice that one would not expect to find in a first-world country. Pro Bono Law Ontario made the point that the middle-class do not identify with the legal aid system, but they themselves often do not have effective access to justice.
A number of the submissions raised the concern that burdensome financial eligibility requirements lead to results which add to other costs in the system. The Family Lawyers' Association noted that the increased number of unrepresented litigants in Family Court results in repeated adjournments and delays. The Ontario Bar Association pointed out that unrepresented criminal defendants receive longer prison sentences.
The Ontario Bar Association also stated that judges and administrative tribunal members find themselves having to assist unrepresented people appearing before them, which raises questions about procedural fairness.
b) Specific Issues
Some legal aid providers pointed to particular areas of law they believe should be covered under the legal aid system. Immigration law issues were often raised. The Metro Toronto Chinese & Southeast Asian Legal Clinic pointed to a recent survey of agencies serving racialized communities, which found immigration law to be "both the most often needed service and the least accessible within the legal clinic system." Several organizations urged that all clinics offer immigration law services, and two stressed in particular that legal aid should be available for applications for landed immigrant status on humanitarian and compassionate grounds. The African Canadian Legal Clinic stated that the types of legal services provided by clinics is not always reflective of the needs of the community in which they are based.
Coverage of some subjects was urged on the grounds of potentially grave consequence to the individual. One example is criminal cases that do not involve a probability of incarceration, which can still result in a criminal record, loss of employment or deportation. Another example is education law cases, which can result in expulsion from school, and often disproportionately impact racialized communities.
Coverage of other legal areas was urged due to certain changes outside the legal aid system. Parkdale Community Legal Services (Workers' Rights division) argued for increased access to employment law services on the grounds that the increasingly non-standard employment market has led to a greater need for rights enforcement. The HIV & AIDS Legal Clinic noted that federal funding for equality rights test cases was recently eliminated. The African Canadian Legal Clinic expressed concern that the changes to the functions of the Ontario Human Rights Commission could result in a greater need for legal aid for human rights cases.
The African Canadian Legal Clinic also voiced the concern of some of their clients that the wait time for receiving the initial certificate is too long (4-6 weeks). For family law matters, the wait time often exacerbates the legal issues. For criminal matters, a person who is incarcerated may lose their job because they are unable to get bail. As well, having to take a whole day off work to go to a legal aid office to apply for legal aid has a considerable impact on the working poor.
It was pointed out by a number of organizations that clients often have multiple legal problems at the same time, e.g. immigration issues, employment issues, discrimination issues and family law issues, but the system is not set up to deal holistically with multiple legal problems. Pro Bono Law Ontario advocated that legal aid services be available in non-traditional settings, such as shopping centres, and also to be more expansive in the services that are provided.
III. GOVERNANCE AND ADMINISTRATIVE ISSUES
a) Board of Directors
The submissions by legal aid organizations contained few comments regarding Legal Aid Ontario's board of directors.
The Association of Community Legal Clinics of Ontario (ACLCO) argued that the board has not always reflected all of the skills and experience laid out in the legislation as criteria for selecting members of the board, in particular, people with skill or experience in the operation of clinics or the special legal needs of low-income individuals. ACLCO recommended that two members of the board should have direct clinic experience, and that such members should be selected from a list recommended by ACLCO.
The Refugee Lawyers Association of Ontario (RLAO) expressed concern that a board weighted to discretionary appointment by the government is vulnerable to political intervention. RLAO recommended that the majority of the board should consist of lawyers with legal aid experience, so that it could realistically assess the legal aid needs of the province. RLAO recommended that such members be nominated jointly by LAO's administration and stakeholder groups. Aboriginal Legal Services of Toronto similarly advocated that the board should be legislated to have an Aboriginal representative.
b) Equity Issues
A number of submissions stressed that the legal aid system fails to adequately address the needs of disadvantaged communities. Some submissions recommended training for legal aid lawyers on racism and violence against women.
A joint submission prepared by the Metro Toronto Chinese & Southeast Asian Legal Clinic, the Ontario Association of Agencies Serving Immigrants, Parkdale Community Legal Services, Inc., and the South Asian Legal Clinic of Ontario pointed to the growing racialization of poverty in Ontario and urged Legal Aid Ontario to make equity and access to services by racialized communities an integral part of its objectives. The proposed framework includes reviews of LAO and the clinics with respect to equity and access issues, training for community clinic staff on racism and other forms of discrimination, mechanisms for sharing information, and regular needs assessments based on demographic and economic information. Pro Bono Law Ontario also emphasized the importance of providing culturally and linguistically appropriate services.
Aboriginal Legal Services of Toronto argued that LAO should hire an Aboriginal person in an LAO management position.
c) Administrative Issues Surrounding Clinics
Two organizations expressed concern about recent administrative changes made by LAO that established regional directors instead of separate certificate and clinic directors. The Association of Community Legal Clinics of Ontario argued the reorganization is at the heart of many of their concerns, including the concern that the clinics will be compared to staff offices and duty counsel offices. They also recommended a review of this change after a year.
ACLCO presented a number of recommendations concerning the relationship between LAO and community clinics. ACLCO argued that LAO should allow clinic boards to determine their own training needs, that clinics and LAO should be jointly involved in regional and provincial strategic planning, and that LAO's current accountability mechanisms are unrealistic for small organizations and fail to take account of each clinic's unique requirements.