Section IX: Governance Of The Legal Aid System
The enactment of the Legal Aid Services Act, 1998, largely following recommendations of the McCamus Report, constituted Legal Aid Ontario (LAO) as a new, quasi-independent, public agency responsible for the provision of legal aid services across the province. This ushered in a new era in the governance of the legal aid system in Ontario, superseding the prior governance regime under which the Law Society of Upper Canada administered most aspects of the program.
In the course of my consultations, I have heard no arguments for returning to the old governance regime, nor have I heard any significant proposals for moving to some radically new governance regime. Indeed, across Canada and beyond, the trend is clearly in the direction of constituting quasi-independent public agencies to administer legal aid programs. 1 Nevertheless, this leaves open the possibility of marginal changes in the existing governance regime that may enhance its performance. I address a number of these possibilities below, roughly dividing the issues into two broad categories - those relating to the internal administration of LAO, and those relating to its external relations with various stakeholders and agencies.
II. INTERNAL GOVERNANCE
a) Administrative Efficiency
Much of the first few years of the time and energies of LAO and its senior personnel were understandably preoccupied with the daunting challenge of managing the transition from the LSUC-managed system to a system managed by a new quasi-independent public agency. This involved multiple challenges, including negotiating a new Memorandum of Understanding with the Ministry of the Attorney General; developing a more rational budgetary process for controlling expenditures under fixed (rather than open-ended) budgets; moving what had largely been a paper-based system under the LSUC into the 21st-century with an integrated modern information technology system for processing applications for legal aid certificates and payments thereunder; integrating, and in some cases replacing, staff from the LSUC system within the new LAO agency; and negotiating an MOU with the Association of Community Legal Clinics to put the clinic system on a more coherent and accountable basis. Most of these tasks have been accomplished with admirable effectiveness, and the senior management of LAO over the past eight years deserves high commendation for its efforts in these respects.
Recent prominent media coverage of the Wills case has left open, at least by inference, the implication that LAO as a public agency has lost control of its finances. 2 From my assessment of LAO's internal administration, and from more extensive reviews by others, 3 I believe that this inference is entirely unwarranted. In the Wills case, an unusual court order required the Ministry of the Attorney General to finance the criminal defense of a defendant who did not qualify for legal aid, leading to confusion and ambiguity as to who was responsible for controlling what subsequently became out of control defense legal expenditures, as between the Ministry of the Attorney General, the court ordering legal representation, and LAO. I regard this case as an anomalous case, the recurrence of which is highly unlikely, given the recent negotiation by the Ministry of the Attorney General and LAO of a protocol governing responsibility for monitoring criminal defense legal expenditures under future orders of the kind made by the court in Wills. Evaluating LAO's control over its expenditures more systemically reasonably justifies the conclusion that it carefully oversees, monitors, and controls its expenditures in the various areas of activity in which they are concentrated and moreover is subject to regular audits by the Auditor-General. If anything, in the course of my consultations, I heard complaints from both the community legal clinics and certificate lawyers that LAO is inclined to micro-manage its expenditures and to require excessive documentation and justification for such expenditures. I do not have a firm view on whether these criticisms are justified, but in any event, they point in the opposite direction of any inference that LAO has generally lost control over its expenditures. However, there are legitimate concerns more generally about the dramatic growth in recent years in legal aid expenditures on big criminal trials, which concerns warrant attention (as I comment further below).
Beyond these issues, there is no doubt room for further improvements in internal administrative efficiency. Streamlining further the certificate application and granting processes through more extensive and decentralized use of information technologies and simplified eligibility criteria would be highly desirable and would help mitigate the phenomenon, strikingly observable in many criminal cases, of multiple appearances and adjournments, in many cases pending decisions by LAO on the granting of certificates. The LAO, in its submission to me, claimed that it was committed to realizing efficiency/productivity gains of 1 per cent per year over the next five years (almost $20 million) through various improved management strategies, including:
- Telephone advice services;
- The Simplified Online Application Portal (SOAP) and process changes;
- Increase coordination of clinic services;
- Improved management of "other civil" certificates;
- Paperless project;
- Provincial office relocation;
- Content management system and Source redesign;
- Maximize use of space and staff through office co-location or relocation;
- Financial eligibility test revision and process changes; and
- Reduce bad debt expense on Client Contributions.
This is a commitment that LAO should be held to, as I comment further below.
Beyond pursuing aggressively these internal efficiencies, there are several other areas which I believe require more attention in the future than they have received in the past.
b) Innovation in Service Delivery Modalities
As discussed much more extensively in Section VII of this review, I believe that LAO needs to be much more innovative in experimenting with various service delivery modalities that advance two of the key objectives that I have noted earlier in this report: first, fuller integration of legal aid services by moving from a silo-based delivery system to a system that involves more single entry points or one-stop forms of service provision, and second, ensuring that a significant range of forms of legal assistance are available on a non-means-tested basis to all Ontarians. Innovation and experimentation, of course, are not guaranteed always to produce successes. If innovation and experimentation are only producing successes, there is not enough of it. Where disappointments or failures occur, these should be frankly acknowledged, not excoriated, and the agency should press on other margins.
c) Innovation in Tariff Structures
Second, if, as I have proposed above, the responsibility for managing the legal aid tariff for the certificate side of the system is remitted in future to LAO, this will call for an innovative and experimental approach to determining the levels and structure of the tariff in various contexts in order to elicit the desired nature, quantity, and quality of services, whether this involves in some cases experimenting with block fees, setting different hourly tariffs for different classes of services to address supply and demand imbalances, or setting different tariffs for different locations (again, to redress supply and demand imbalances), or structuring the tariffs in some cases to induce a more holistic response to individual clients' needs. In light of the increasing emphasis in the justice system on early resolution, LAO should likewise consider how the structure of the tariff promotes this goal, by testing the issuing of certificates for mediation, settlement conferences or more pre-trial work, particularly for family law matters.
d) Quality Assurance
While LAO has made commendable progress in introducing significant forms of quality control in the system, in particular by establishing criteria for qualifying as members of the various LAO legal aid service panels (e.g., criminal, family law, and immigration law), in important respects these forms of entry or input controls do little, in themselves, to address issues of ex post competence. While LAO does maintain a complaints processing function, this appears not to be well-communicated to clients, nor is it clear to me exactly what process is followed once LAO receives such complaints. In this respect, there remains significant ambiguity as to the relative roles of LAO and the Law Society of Upper Canada in disciplining legal service providers under the various legal aid programs for which LAO is responsible. While it may well be appropriate for LAO simply to refer more serious complaints of egregious misconduct to the Law Society of Upper Canada for investigation and, if appropriate, disciplinary action, especially now that the Law Society of Upper Canada has adopted a more proactive post-entry quality assurance regime, 4 at the very least LAO needs a well-defined process by which lawyers who have been recognized previously as qualifying for membership on the various LAO certificate panels can be removed from these panels, with any further action then remitted to the Law Society of Upper Canada. In this respect, while I do not recommend, at this time, the highly proactive, system-wide, and costly form of peer review of legal aid service providers that has recently been initiated in the U.K., a more targeted form of peer review by LAO may well be warranted, where a pattern of client complaints or billing irregularities suggest a need for further scrutiny of a legal aid service provider's legal aid files, again with a view to re-evaluating whether such providers should remain on an LAO panel and whether referral of the case in question to the Law Society of Upper Canada for further investigation and possible disciplinary action is warranted. Obviously, any such more institutionalized complaints process cannot be confined only to legal aid certificate lawyers, but must also extend to complaints about lawyers and licensed paralegals in the clinic system and duty counsel. A memorandum of understanding between LAO and the LSUC on various aspects of these quality assurance issues would help resolve ambiguities as to respective spheres of responsibility.
With respect to the clinic system more generally, the clinics have resisted efforts by LAO to introduce any system-wide form of quality assurance. This is obviously a sensitive issue. On the one hand, the clinics, each governed by their own community-based or client-based boards, set their own priorities, and are, generally, strongly committed to their own institutional autonomy, and moreover their very different mandates, priorities, and client groups defy any one-size-fits-all attempt to impose a common output-oriented performance template on them. On the other hand, it defies credulity that all eighty clinics (any more than eighty organizations of any kind) are all operating at optimal effectiveness and efficiency, and thus LAO has a legitimate responsibility in ensuring that monies allocated to the various clinics are being effectively spent. There are enough similarities across functions and client groups with respect to many of the clinics that comparisons are possible, not with a view (except in extreme cases) to punitive measures such as termination or reduction or withholding of funding, but rather with a view to corrective or remedial measures being taken. Thus, there seems ample room for middle-ground quality assurance strategies with respect to the clinic system.
e) Big Case Management
LAO's big case management program (BCM) is designed to deal with large criminal cases expected to cost more than the legal aid tariff maximums. The BCM program aims to contain costs by subjecting "big cases" to additional management oversight by way of case management procedures and budget setting. Any case that is expected to cost $20,000 or more in fees and disbursements (or $30,000 for cases involving first or second degree murder) and any case with multiple accused where the collective fees and disbursements are expected to exceed $50,000 are subject to the BCM program. Under the program, defence counsel are required to attend a case management meeting with an LAO area director for the purposes of setting a budget for the proceeding. These thresholds and some elements of the budget setting procedure are now set out in regulation. 5 In recognition of the growing phenomenon of "mega-trials", LAO created an additional layer of scrutiny for the most expensive cases in the BCM Program. Since 2001, cases that are expected to cost in excess of $75,000 are referred to the Exceptions Committee for review before a budget is set. The Exceptions Committee comprises prominent, experienced criminal lawyers who assist LAO by reviewing the nature of the case and level of complexity and recommending an appropriate budget. Exceptions Committee members provide their time and services pro bono.
Over the years, the cost of big cases has increased steadily, reaching $24 million per year in 2006-07. The BCM Program has become the greatest pressure on LAO's criminal certificate budget at 22 per cent, but represents only 7 per cent of LAO's budget as a whole. The most expensive cases - those referred to the Exceptions Committee - represent 1.5 per cent of the total LAO budget. The number of cases in the BCM Program is also relatively small compared to LAO's entire criminal caseload, averaging approximately 1500 cases open at any point in time and 500 completed per year.
LAO's BCM Program estimates for the 2007-08 fiscal year are as follows:
|Fiscal 2007-08||Total Cost($M)||% of total budget||No. of certificates||% of certificates||Average case costs*|
|LAO overall budget||350|
|Criminal certificates (excl BCM)||75||21.4||66800||60.5||1,288|
|Big Case Management Program||25||7.1||1500**||1.4||39,206|
|"Ordinary Big Cases"||20||5.7||1000**||0.9||26,160|
|Exceptions Committee Cases||5||1.4||500**||0.5||71,125|
|Guns and Gangs||33,466|
* Based on rolling 12 months to December 2007. Case costs for BCM based on the 517 cases completed between December 2006 and December 2007.
** Based on average of number of BCM certificates annually.
The following is a further breakdown of the certificates, by completed case cost, for the 517 cases that were completed between December 2006 and 2007.
|over $500,000||$250,000-500,000||$100,000-250,000||$75,000-100,000||$50,000- 75,000||$25,000-50,000||under $25,000|
Thus, the data show that the average criminal certificate case (excluding BCM cases) costs $1,288, while the average ordinary BCM case costs $26,160 and the average Exceptions Committee case costs $71,125. Of the $24 million spent on BCM cases in 2006-07, ordinary cases cost $19 million and the Exceptions Committee cases cost $5 million, with half of that total accounted for by the so-called mega cases.
In the course of my consultations, several groups expressed concern that these huge expenditures were diverting resources from other legal aid clients and services. Two groups, the Ontario Bar Association and the County & District Law Presidents' Association, suggested that big cases be funded outside the legal aid system entirely. I appreciate this concern. However, such an idea is contrary to some of the broader suggestions I make elsewhere in this report regarding the importance of having a single body be responsible and accountable for all of the various parts of the legal aid system. While not a large part of the overall legal aid budget, the size of the expenditures on this relatively small number of cases does warrant concerted attention by LAO.
It is apparent that not only are big cases growing in number, but that certain types of cases (e.g. guns and gangs) are becoming disproportionately more expensive. The number of cases with multiple co-accused is also a factor in the number of certificates issued for big cases. For example, the number of accused issued a certificate under BCM has more than doubled between 2002-03 and 2006-07, from 515 to 1048.
These trends have drawn the attention of both LAO and the provincial government. As part of the new $51 million in funding for legal aid referred to earlier in this report, the government provided an additional $15 million for the Big Case Management program to ensure demand for coverage in complex and costly criminal trials does not compromise other services. LAO has also initiated measures to strengthen oversight and improve accountability in the management of big cases.
For example, it has recently instituted new accountability policies, requiring budget sign-off and approval at the Vice President level for all cases that are referred to the Exceptions Committee. Area Directors will have authority to approve budgets for non-Exceptions Committee cases and to approve budget increases when there have been unforeseen developments in a case. If the budget increases are significant, approval of the Vice President is required. LAO has also been working with defence counsel who represent co-accused in multiple-accused BCM cases to encourage them to consider options to reduce work time and duplication where several lawyers are reviewing large amounts of disclosure. In some cases, electronic sorting programs have been purchased or arrangements have been made whereby one lawyer carries out the initial review and sorting to reduce the time spent on this task by individual counsel for other co-accused. Recently approved LAO policies designed to reduce the number and cost of change of solicitor requests are another important step forward. Frequent changes in counsel mid-stream not only cause significant delays, but are extremely costly to LAO and all of the other justice system participants. In accordance with these new policies, where a change of solicitor request succeeds, outgoing counsel will be required to pass on a meaningful and usable work product to incoming counsel. Finally, LAO has approved a proposal to create a more structured process for Exceptions Committee meetings, with stronger senior staff support and analysis and better decision-making guidelines for Exceptions Committee members. I understand that Exception Committee members are highly regarded by the defence counsel who appear before them and that they act with professionalism and integrity in carrying out their role. LAO data show that the Exceptions Committee recommends budgets that are, on average, nearly 50 per cent lower than what is proposed by counsel appearing before it. Exception Committee members provide a valuable service, in the public interest, for no fee. I believe some form of remuneration may be appropriate. Given the levels of funding outlined at the beginning of this section, I also believe it appropriate that LAO senior management be more closely involved in the Exceptions Committee process with clearly defined levels of authority for the approval of budgets. LAO may also wish to consider whether the Exceptions Committee could benefit from the expertise of other disciplines such as auditors or public accountants.
It is sometimes argued that the length and cost of some of the more complex cases is attributable to the inexperience or unprofessionalism of defence counsel. 6 The Criminal Lawyers' Association (CLA) suggested to me that a low hourly tariff leads to more junior counsel taking on legal aid cases, as more senior counsel are reluctant to devote their practices to a single long trial. This is then said to result in cases taking longer to resolve, particularly for complicated cases such as criminal megatrials. Justice Moldaver asserts that many trials have been unduly lengthened by frivolous arguments which violate counsel's duty to the court. The County and District Law Presidents' Association and the Criminal Lawyers' Association both recommended the creation of an elevated hourly rate, to encourage more senior counsel to take on these complex cases.
I do not doubt that the experience of counsel contributes to a smooth running trial. This point was also made to me by the Crown Attorneys I consulted. LAO data on this issue, however, do not support the contention that senior lawyers do not take on big cases. I note also LAO's panel standards for "Extremely Serious Criminal Matters" which require a minimum of five years of 100 per cent criminal practice in addition to significant criminal trial experience in a number of areas, including jury trials, complicated voir dires, and contested Charter applications. On the basis of the data, I am unable to say whether a subset of this panel with a more rigorous set of criteria for those dealing with Exceptions Committee cases, or perhaps mega-cases, is warranted, but it may be something for LAO to consider. As with all panel standards, these do assure a certain level of experience at the entry point. As I note above in the Quality Assurance section however, panel standards in and of themselves do little to address issues of ex post competence. Similarly, I am not persuaded that an elevated tariff specifically for these big cases can assure the participation of the most competent and most experienced counsel.
Overall, it seems to me that the big case management program has worked quite well, but is facing increasing challenges in dealing with the biggest and most complex cases. The more recent steps taken by LAO to enhance accountability and management, noted above, while appropriate, appear strongly focused on the front end. LAO has not yet instituted mechanisms to monitor the progress of a case as it moves forward, to alert it to problems that may be arising, to enable it to respond to problems as they occur, and importantly, to review the conduct of a case once it has been completed. LAO must have a much stronger role in the process beyond setting a budget at the beginning and paying the accounts at the end. In order to ensure that this monitoring function is properly met, LAO should consider conducting on-going analyses of cases, routinely attending at judicial pre-trial meetings and other important events in the proceeding, and requiring regular detailed reporting from counsel on the status of the case.
In its submission to me, LAO noted some movement in this regard. It has recently established an "Expectations of Counsel" policy and protocol, requiring counsel working on big cases to provide regular reports, estimates and up to date billings, and to keep the legal aid area director informed of all developments that may affect the cost of the case. LAO is also putting in place the requirement for a separate budget for pre-trial motions in a big case, which have been identified as a major cost factor in the BCM program. As part of the budgetary approvals, pre-trial motions will also have to meet a merit test. In order to show that a motion is a justifiable expenditure of public funds, it must have a reasonable prospect of success and be likely to be proceeded with by a private fee-paying client. These are both sound initiatives and I understand that LAO is considering further mechanisms to enhance its ability to monitor cases during the proceedings, an idea I fully support.
In the Quality Assurance section I recommend, more generally, that LAO develop a well-defined process for removing lawyers from panels and that it enter into a memorandum of understanding with the law society with respect to complaints about lawyers. Both recommendations apply equally to the BCM program. With respect to a more targeted peer review, which I also propose in the previous section, it may be that Exceptions Committee cases are well suited to such a process. The Exceptions Committee is already a form of peer review and, as noted, is well respected. Its role could be expanded to include an evaluation function - at various stages of a proceeding or at the end of the trial - that would review the conduct and outcome of the case. If there were a case to be made for an elevated hourly tariff or premium for big cases, perhaps it would be better instituted at the evaluation stage so that it functions not as an inducement to attract the best and most experienced counsel, but as a reward for effective and competent case management. The premium could be awarded at LAO's discretion, if recommended by the Exceptions Committee.
Finally, I note that the Attorney General has recently asked the Honourable Patrick LeSage, Q.C. and Professor Michael Code to lead a review of large and complex criminal case procedures, and to recommend solutions to move large, complex cases through the justice system faster and more effectively. One area of inquiry will be the effective use of justice system resources. I expect that the Review will therefore consider the role that LAO may play in achieving this objective.
f) An Access to Justice Research Function
The McCamus Report envisaged a major role for LAO as a sponsor of research on access to justice issues. 7 The Report offered several reasons for this: First, while reforms to the legal aid system, including shifts in the mix of delivery models, have some potential for realizing various efficiency gains in the utilization of legal aid services, in the Report's judgment these gains are likely to be quite limited relative to those to be realized by improving the efficiency and efficacy of the underlying justice system through appropriate substantive and procedural reforms. Second, the legal aid system occupies a unique vantage point from which to view the operation of the various elements of the broader justice system. Third, by assigning a central priority to this change agent role, the new legal aid system would acquire a new legitimacy and rationale with the general body of residents and taxpayers in the Province of Ontario beyond its obvious response to needs and rights, so that taxpayers can properly view expenditures on legal aid as, in part, an investment in the quality of justice in the province for everyone. Fourth, the symbiotic relationship between the legal aid system and the broader justice system requires emphasis in another respect: many of the reforms of the broader justice system can work effectively only if the parties are legally represented.
I think it is fair to say that the LAO has done little of consequence in the research domain, beyond commissioning evaluations of the Criminal Law Offices. In part this has been a function of the agency's preoccupation with managing various aspects of the transition from the old to the current regime (which I have noted above). LAO has recently signalled an interest in moving in this direction with the appointment of a Director of Strategic Research. It is also the case that one of the most progressive legal aid agencies elsewhere in the world, the U.K. Legal Service Commission (through its Legal Services Research Centre), has assumed major research responsibilities, through the publication of evidence-based empirical research on various impediments to access to justice, and views this as one of its vital roles.
In the Ontario context, it seems uncontentious, at the present juncture, that LAO should undertake a significant research function with respect to exploring the modalities of alternative service delivery mechanisms (which it has largely not done to date). More controversial is the notion that it should sponsor research on aspects of the broader justice system and dysfunctions in it that may create impediments to access to justice and raise the costs of legal aid provision by applying expensive band-aids at the backend of processes that would, in a first-best world, be reformed at the front end. While, perhaps, the appropriate institutional division of responsibility for the research function with respect to access to justice issues was insufficiently refined in the McCamus Report, and while I accept that it would be inappropriate for a publicly funded agency such as LAO to act as a gadfly exposing dysfunctions or infirmities in the broader justice system and acting as agent provocateur in lobbying efforts to reform these dysfunctions or infirmities, these concerns do not disqualify it from playing a constructive role in such research initiatives. As I have noted earlier in this review, LAO oversees a decentralized system of legal aid service provision that is, at least potentially, an enormously valuable source of intelligence about what is working well or badly elsewhere in the justice system. Mechanisms need to be developed whereby sources of potential intelligence can be tapped and brought to the attention of the Ministry of the Attorney General. In some cases, it may be appropriate for the Ministry of the Attorney General and LAO jointly to sponsor research on actual or perceived problems in different elements of the justice system. Comparative experience suggests that reform-oriented research on aspects of the justice system that does not enlist the active participation of participants in these institutions in the research and reform formulation process, but rather conscripts them after the event in the reform-implementation process, are often unlikely to be successful. 8 It is worthwhile reminding ourselves of successful initiatives of this kind in Ontario. For example, the concept of Unified Family Courts (UFC) was first embarked upon as a pilot program in Hamilton and was widely viewed as so successful as to warrant extending it to many other parts of the province (although regrettably this process of expansion remains an unfinished project, due to an apparent lack of commitment by the federal government to allocating appropriate resources to the endeavour).
The McCamus Task Force Report noted many areas of the justice system, including most prominently the criminal justice system, family law proceedings, and immigration proceedings, where dysfunctions in existing systems had been brought to its attention along with various proposals for reform by parties with intimate experience in these systems. While the Task Force did not attempt to evaluate the soundness of these proposals, it did note that there was no dearth of ideas as to how to improve the overall functioning of the justice system. Such ideas can often be experimental in nature and need not, and probably should not, involve grand system-wide schemes such as the largely unsuccessful Integrated Justice Program previously embarked upon by the Government of Ontario.
Whatever the appropriate institutional mechanisms for promoting this kind of evidence-based research into the functioning of the broader justice system, three things are clear to me: 1) not nearly enough of this research is currently being undertaken; 2) LAO has a constructive and important role to play in such research, at the very least as a kind of early warning system of failures in the system and more ambitiously as a partner with the Ministry of the Attorney General and other justice system partners (including the recently reconstituted Law Commission of Ontario) in sponsoring relevant research; 3) such research should be routinely placed in the public domain. The sponsorship or co-sponsorship of a publicly accessible Access to Justice Working Paper Series, where evidence-based research can be reported and disseminated, so stimulating broader and better informed public discussions and debates relating to the ideals of access to justice and the rule of law in the province, would be an invaluable initiative.
g) The Role of the Board at LAO
I come now to the issue of the role of the board of LAO as the ultimate decision-maker with respect to the administration of the legal aid system. While, as I have noted above, I did not hear any case for radical overhaul of the present internal governance structure of LAO, nor do I believe that there is such a case, I believe there is room for improvement in board structure and appointments. However, what I do not think would be a good idea, although it was pressed on me by various stakeholders with whom I met, is a constituency-based board where various major stakeholders in the system would be assigned a certain number of seats on the board and would either appoint or elect their own representatives to these seats or would provide the Attorney General with a list of names for these seats from which he or she would be required to choose. First, a constituency-based board would inevitably entail endless and acrimonious wrangling as to who should be entitled to what seats on the board in designing the initial constituency-based board structure. Second, it is crucial that the board adopt a broad client-based public interest perspective on its mandate, and a constituency-based board is likely to militate in exactly the opposite direction of encouraging parochialism in the promotion of various constituency interests. At present, the Attorney General appoints five board members from a list provided by the Law Society of Upper Canada. Apparently, the practice has developed of the Law Society of Upper Canada supplying to the Attorney General three names for every vacancy in the five board seats assigned to the Law Society of Upper Canada. The Attorney General appoints the other five board members at large, subject only to a general injunction in the Legal Aid Services Act that the Attorney General must ensure that the board has knowledge and experience in:
- Business management;
- The operation of courts and tribunals;
- The operation of clinics; and
- The special legal needs and attendant social circumstances of low-income individuals and disadvantaged communities.
While some parties with whom I met suggested that it was anachronistic that the Law Society of Upper Canada have the prerogative of nominating the potential appointees for half the members of the board, I am not persuaded by this view. It is crucial that the commitment (already attenuated) of the practicing legal profession to the legal aid system be maintained and, indeed, enhanced in the future, so that ensuring that the practicing profession is well-represented on the board seems to me to advance this end, especially if the Attorney General is given significant latitude (under current practice) as to whom he appoints from the Law Society's proposed list of nominees. As to the appointments at large that the Attorney General is statutorily mandated to make, my impression is that the quality of appointees, while generally strong, has been somewhat uneven. In particular, I note that the LAO board has never had a member with substantial senior management experience in the public or private sectors in managing large multi-million dollar expenditure programs. This seems to me to be an unfortunate deficiency (in contrast to the U.K. Legal Services Commission, where such appointments have become routine and are widely recognized as invaluable). I also note that there has perhaps not been a systematic enough focus on ensuring adequate representation of demand-side (as opposed to supply-side) interests and perspectives on the board. Here, the addition of senior representatives of agencies such as United Way may provide an invaluable additional perspective. As well, if the case for greater integration of legal and social services as they relate to low-income Ontarians is accepted, perhaps a senior representative of the Ministry of Community and Social Services, which is responsible for other social programs that relate to low-income Ontarians, would provide a valuable additional perspective. I note also that it has been brought to my attention that sometimes the Ministry of the Attorney General has not always been able to make timely appointments to replace board members whose terms have expired or who have otherwise retired or resigned from the board.
To address these various issues, I believe it would be productive for the Attorney General to consider appointing an Advisory Committee on LAO board appointments that might comprise the Deputy Attorney General, the Assistant Deputy Attorney General with special responsibilities for legal aid, the Chair of LAO (except where his or her replacement was an issue), and perhaps a retired and distinguished judge, which would periodically issue public invitations for suggestions or nominations for board appointments and would, in addition, proactively solicit the interest of individuals that would offer the board distinctively valuable perspectives. The Advisory Committee would maintain a bank of suitably qualified potential appointees so that when vacancies arose a search or nomination process would not need to be undertaken ab initio. The Advisory Committee might then propose a number of names to the Attorney General with brief assessments of the individuals' qualifications, leaving the Attorney General with substantial scope to choose from amongst qualified nominees, including nominees that he has proposed to the Committee. Strengthening the board in these various ways will be particularly important if, as I have proposed, the tariff management process is vested in the board, in addition to its current responsibilities for managing the allocation of resources across the legal aid system.
h) Transparency and Accountability
I address briefly one final issue: whether the operations and decision-making functions of LAO are sufficiently transparent and accountable in terms of contemporary precepts of good public administration. First, as I have noted, the Attorney General is ultimately responsible for all board appointments. Second, LAO must publish an annual report setting out its activities for the year and its financial statements, which are subject to audit by the Auditor General. Third, LAO negotiates periodically a five-year Memorandum of Understanding (MOU) with the Ministry of the Attorney General. The MOU requires the Corporation to be accountable for the expenditure of public funds and for meeting its mandate by providing the Attorney General with:
- annual business plans;
- multi-year strategic plans;
- an annual statement of LAO's policies and priorities for legal aid services;
- an annual statement of LAO's investment policies and goals;
- meeting agendas; and
- performance standards and any other matter required by the government.
LAO must also provide the Attorney General with quarterly financial reports on the state of its contingency reserve fund. Fourth, LAO is subject to a three-year rolling budgetary process with the Ministry of the Attorney General, where it must submit its proposed budget for approval each year. Finally, in the event that the Attorney General forms the view that the board of directors is failing to discharge its duties, he or she has powers under the Legal Aid Services Act to disband the board and appoint an Administrator.
It is not clear to me that additional forms of transparency or accountability are appropriate. I briefly raised in discussions with some groups the possibility of amending the Legal Aid Services Act so as to provide the Attorney General with a formal public directive power of the kind that exists with respect to some other public agencies (mostly regulatory agencies), where the Minister responsible can issue a public directive, tabled in the legislature and typically subject to legislative override, directing the agency to pursue certain policy objectives. This idea seemed to elicit no enthusiasm or support from any quarter, and hence I do not pursue it here.
III. EXTERNAL GOVERNANCE
LAO interacts, on a regular basis, with a number of important external agencies or constituencies. I briefly review some of the more important of these relationships.
a) The Community Legal Clinic System
As noted earlier in my review, there are now 80 legal aid clinics in the province, including 18 specialty clinics. While it is common to refer to these as the "clinic system," there is some debate as to how coherent an overall system they in fact constitute. 9 Whether there is an optimal distribution of these clinics across the province geographically, and whether there is an optimal range of specialty clinics with appropriate mandates require ongoing evaluation, and cannot simply be assumed as the optimal outcome of a number of incremental or ad hoc decisions made in the past. More generally and fundamentally, there is a question of whether the clinics in fact add up to a coherent structure for the delivery of poverty law services in Ontario. Each clinic sets its own priorities through locally elected boards of directors and the clinics generally are strongly protective of their institutional autonomy. This has led to significant tensions with LAO. Clinics tend to complain of micro-management by LAO, of excessive reporting and accountability requirements, intrusive efforts to impose quality assurance programs on the clinics, and insufficient appreciation of the importance of clinics, through their local governance structures, determining their own priorities. LAO, on the other hand, is concerned that it would not be a responsible discharge of its statutory functions to simply write cheques to the clinics on a periodic basis and assume that the money is being well spent; that just as with the certificate system, some baseline forms of quality assurance are appropriate; and that locally-determined priorities for the clinics should nevertheless add up to a coherent service delivery mechanism that is not only coherent within the constellation of services offered by the various clinics themselves, but with more strategic objectives for the various components of the larger mixed legal aid delivery system that has evolved in Ontario over the past several decades (albeit in a somewhat ad hoc fashion). Determining where the clinics fit in a broader strategic conception of the legal aid system is likely to become an even more significant challenge in the future if my recommendations (developed earlier in this review) are accepted, which would entail a stronger focus on both service integration and the provision of some range of legal services on a non-means-tested basis to all Ontarians. In pursuing both of these objectives, the clinics become a critical building block for this more expansive conception of legal aid services.
Early in the life of LAO, LAO negotiated a Memorandum of Understanding with the Association of Community Legal Clinics of Ontario, which forms the basis of the relationship between LAO and each clinic in the system. However, this MOU follows a standard template and may not be well adapted to the distinctive role of particular clinics in the system. While under the Legal Aid Services Act, LAO is empowered to impose conditions on grants to clinics, to the extent that such conditions may be viewed as incursions or constraints on local autonomy in determining service priorities, unilateral, top-down, or command-and-control type imposition of such conditions by LAO is likely to be a source of serious friction with the clinics. Hence, what seems to be required is an intensive, ongoing dialogue between LAO and the Association of Community Legal Clinics, and probably individual clinics, as to their role in a broader strategic vision of the legal aid system as a whole. Even though such a dialogue may at times be tense, I do not see how it can responsibly be avoided by either LAO or the clinics themselves.
b) Student Legal Aid Services Societies (SLASS)
During the 2006-07 fiscal year, 985 of the nearly 3,800 law students enrolled in the six law faculties in Ontario participated in the SLASS program. The six student legal aid clinics in the province complain, with some justification, that they are viewed as minor or peripheral features of the legal aid system in the province, and have sometimes been treated less favourably in terms of budget allocations than community legal clinics more generally, despite their dual and time-intensive role as service providers and teachers of the next generation of legal aid lawyers, government officials, judges, politicians, and academics. In addition, the SLASS complain, again, with some justification, that their leadership role in promoting a broader integration of legal aid services that might be extended more generally throughout the legal aid system, has been insufficiently appreciated by LAO. Nurturing this relationship between LAO and SLASS in developing a more strategic appreciation of where SLASS fit into the broader landscape of legal aid services in the province, both at present and in the future, would seem an important task for LAO going forward. At the very least, LAO should not treat SLASS less favourably than the clinics in budgetary allocations; a modest annual grant to enable senior personnel from the SLASS to meet and discuss best practices and common challenges would also recognize their unique role in the legal aid system.
c) Pro Bono Law Ontario
Pro Bono Law Ontario (PBLO) is a private, not-for-profit organization, led by senior judges and litigation counsel, that was founded about 8 years ago and which seeks to enlist the voluntary participation of lawyers in private practice in providing principally civil legal services against relatively relaxed and flexible eligibility criteria to individuals involved in civil claims in small claims court or the Superior Court. To date it has launched a series of relatively small-scale but impressive pilot programs in these areas entailing participation by lawyers in large law firms, principally in Toronto, whose firms commit to provide these services on a pro bono basis. LAO is partnered with PBLO in some of these initiatives, suggesting the potential for an even more ambitious set of partnerships or joint ventures in the future, particularly in the civil litigation area which, outside of family law and poverty law matters handled by the clinics, largely now falls outside the scope of the legal aid system. More strategic leveraging of LAO's resources through partnerships with non-profit and community organizations like PBLO seems a productive direction for LAO to explore in the future.
d) The Law Foundation of Ontario
The Law Foundation of Ontario (LFO), under its constituting statute, is required to remit 75 per cent of its revenues each year to LAO. These revenues are generated from interest on lawyers' trust funds and hence are a function of the volume of economic activity in the province and prevailing interest rates. Hence, this source of revenue exhibits considerable volatility, and in recent years has ranged from $20 million to $50 million a year. This has sometimes led LAO to making significant and abrupt cuts in expenditures mid-year with respect to the issuance of certificates in the light of shortfalls in forecasted revenue receipts from LFO. These abrupt changes in policies are undesirable from the perspective of both clients and service providers. LAO complains that the LFO is not forthcoming with its internal revenue forecasts. The LFO complains that LAO has not either adopted its own revenue forecasting and smoothing model or, alternatively, relied on broader forecasting models developed within the Government of Ontario. Clearly there is room for a more collaborative relationship in developing some form of financial forecasting model (as the LAO recognizes in its submission to me).
Apart from forecasting revenues from this source more accurately, of course the other alternative for LAO is to maintain a contingency reserve fund as a cushion against short-term revenue fluctuations. At present, LAO maintains a contingency reserve fund of about $20 million. Given the extent of the volatility in revenues received from the LFO in the past, it may be that this reserve fund is inadequate as a cushion against fluctuations in revenue from LFO, let alone fluctuations in demand for certificates. Demand for certificates goes up in economic downturns, while revenues from the LFO go down (and hence move against each other). These issues require more serious attention from LAO, going forward, than they have received in the past.
e) The Law Society of Upper Canada
The Law Society of Upper Canada (LSUC), as the regulator of the legal profession in Ontario, plays a number of important roles in shaping the provision of legal services to the citizens of this province. Apart from its role in nominating five members of the board of LAO, other policies which it pursues have a direct impact on the operation of the legal aid program. I have noted above that the LSUC is primarily responsible for administering the disciplinary system of the legal profession and that in this respect there are undesirable ambiguities, with respect to legal aid services provided by lawyers, as to the respective roles of LAO and the LSUC in maintaining appropriate quality standards in the provision of these services. These ambiguities need to be resolved at an early stage going forward, perhaps through negotiation of an MOU between LAO and the LSUC. In addition, the LSUC has recently assumed responsibility for regulating paralegal personnel in the province, including the licensing of new paralegals. Paralegals are an important current source of legal assistance in the provision of legal aid services and it is incumbent on LAO and the LSUC jointly, going forward, to ensure that all potential opportunities for full utilization of the invaluable human resources they offer are maximized.
f) Ministry of the Attorney General
I have noted earlier in this review various critically important points of interaction or intersection, actual or potential, between LAO and the Ministry of the Attorney General - in particular, with respect to accountability mechanisms and in terms of research responsibilities. However, the most critical relationship is the financial relationship between LAO and the Ministry of the Attorney General and, through the Ministry of the Attorney General, the Cabinet and the Government of Ontario. If, as I have proposed, the tariff management function is vested in LAO, this relationship becomes even more critical. I am assuming, for the time being at least, that financial eligibility criteria and adjustments thereto will remain vested with the Ministry of the Attorney General and the Government of Ontario, as it is for other means-tested social programs, although this does not and should not preclude a more rational process for adjusting these criteria on a regular basis and for serious input from LAO into that process.
In terms of adjustments to eligibility criteria, tariffs and compensation for staff lawyers, these might be reviewed on a three-year cycle, leaving other adjustments to be dealt with in annual budget submissions. I believe that in the interests of transparency and accountability, both of LAO and of the government, following triennial reviews of eligibility criteria, tariffs and staff salaries, the business case presented by LAO for additional expenditures should be made public so that the citizens of the province can evaluate whether the government's response to the case is appropriate or otherwise. In order to narrow the range for annual negotiations over budget increases, an overall commitment by the government to at least maintain the level of the current budget in real terms over a three-year cycle by increasing it through appropriate inflation adjustments, minus 1 per cent to reflect LAO's promised productivity gains, would then cast the burden on LAO to justify the case for increases beyond this level in terms of changes in the demand for or supply of covered services, or proposed service innovations.
These annual inflation adjustments to LAO's budgetary envelope would further narrow the range of factors to be assessed in triennial compensation and eligibility reviews, as inflation would already have been accounted for in annual budgetary adjustments.
Finally, in order to inhibit slippage on the part of any of the major stakeholders in the legal aid system in their commitment to the ideal of access of justice, I recommend that approximately every 5 years and ideally prior to a change of command at LAO (i.e., the appointment of a new Chair), a process of review similar to that which I have undertaken should be commissioned by the Attorney General and that this should serve as context in the search for a new chair (much as is already the case for many other public sector institutions, such as hospitals and universities). Obviously, such reviews should be placed in the public domain, so that all citizens of Ontario receive a periodic report card on the performance of the legal aid system in meeting its access to justice ideals.
g) The Federal Government
The federal government has primary or major jurisdictional responsibilities in criminal law, family law, and immigration law, yet over the past decade or so it has taken an increasingly limited view of its responsibility for ensuring access to justice in these areas of law, reflected in declining financial contributions to the legal aid system in Ontario in real terms. The federal government is currently providing $16 million less (in constant dollars) to Ontario's legal aid system than it was providing ten years ago. On the other hand, as noted above, the provincial government has recently announced an additional $51 million over three years. The provincial government should aggressively press the federal government to meet its responsibilities and to bear a significant share of the additional fiscal commitments required to underwrite a healthy and sustainable legal aid system in Ontario.
- See Ron Daniels and Michael Trebilcock, Rethinking the Welfare State: The Prospects for Government by Voucher (London: Routledge, 2005) c. 5.
- In a report released on February 26, 2008, Ontario's Ombudsman concluded that structural changes are required at LAO to ensure that it is properly managing non-certificate cases, but noted that LAO appears headed in the right direction. See, A Test of Wills: Investigation into Legal Aid Ontario's Role in the Funding of the Criminal Defence of Richard Wills, Ombudsman Report, February 2008, at 71, 72.
- See Deloitte and Touche, Program Evaluation of the Administrative Components of Legal Aid Ontario, March 2003.
- See Michael Trebilcock, "Regulating Legal Competence," (2001) 34 Canadian Business Law Journal 444..
- O. Reg. 107/99, s.5..
- See, e.g. The Honourable Justice Michael Moldaver, "Long Criminal Trials: Masters of a System They are Meant to Serve" (2006) 32 C.R. (6th) 316; Michael Code, "Law Reform Initiatives Relating to the Mega Trial Phenomenon" [unpublished]..
- Chapter 6..
- See Malcolm Feeley, Court Reform on Trial: Why Simple Solutions Fail (N.Y.: Basic Books, 1983)..
- See Deloitte, Community Legal Clinics and Student Legal Aid Services, October 2004..