Appendix A: Summary of Submissions

It was the view of both the government and the members of the Legal Aid Review that the task of examining legal aid programs in Ontario could not successfully be accomplished without receiving and considering the input of the widest possible range of groups and constituencies that had both an interest in and knowledge of legal aid services in Ontario. To this end, a public consultation paper was circulated across the province in January 1997 to focus and facilitate submissions by community groups, members of the legal profession, community legal clinics, consumers of legal aid, Plan administrators, and other interested persons.

The consultation paper provided a brief outline of the current legal aid system and asked the reader to consider a number of questions relating to the Review's Terms of Reference: What are the needs people have for legal aid in Ontario? What should be the objectives of the legal aid system? How should priorities be set among the needs of persons with low incomes requiring legal aid? What are the economic, professional, and other incentives associated with various delivery models for service? Who should financially be eligible for legal aid? What has been the impact of the reductions in legal aid? Who should be responsible for funding legal aid? What changes could be made in the larger justice system to enhance the delivery of legal services to low-income people? What management, administrative or technological improvements could be implemented in order to deliver services more effectively or efficiently? Who should govern legal aid?

Despite the short deadline, the consultation paper elicited a strong response. Approximately one hundred and seventy written submissions were received by the Review providing detailed and thoughtful commentary on the issues involving the delivery of legal aid services in Ontario and the clients who are in need of them.

Many lawyers and legal associations responded from across the province. The list of respondents included the L'Association des juristes d'expression francaise de l'Ontario (AJEFO), the Canadian Association of Black Lawyers, the Canadian Bar Association-Ontario (CBAO), the Family Lawyers Association, the Criminal Lawyers' Association, and the Refugee Lawyers Association. As well as outlining the kinds of services that clients require and describing the effects that the current cuts are having on the delivery of these services, they also offered suggestions about how legal aid could be run more effectively for all of the various stakeholders involved. Judges, tribunal officers, lawyers representing various government ministries and agencies, the Law Society of Upper Canada, and legal aid administrators also responded, often raising many of the same issues and concerns as their colleagues in the private bar.

Community legal clinics and student legal aid societies from across the province responded, providing detailed accounts of the services they provide and identifying the legal needs of the low-income Ontarians that they serve. The specialty clinics also responded, providing important information about the particular needs of the groups with whom they work: for example, the African-Canadian community, the Chinese and Southeast Asian community, the Aboriginal community, the disabled community, injured workers, the elderly, youth, and the HIV/AIDS community. As well, the clinic system's views were also represented in a general submission, a submission from the Clinic Funding Committee and in a submission by the Ontario Public Service Employees Union on behalf of the clinic staff organized by them.

Many submissions were received from social service agencies who articulated their clients' pressing needs for both legal information and for legal services. They outlined the kinds of services required by their various communities and the importance of these services to the fundamental well being of both their clients and to society at large. These agencies and associations included the Ontario division of the Canadian Mental Health Association, The Family Service Association of Metropolitan Toronto, the Thunder Bay Indian Friendship Centre, the National Action Committee on the Status of Women, the Ontario Association of Interval and Transition Houses, the John Howard Society of Ontario, and The Lakehead Social Planning Council. Individual clients also expressed their views about the services that they received and the problems that they encountered.

Following the outline of our consultation paper, this appendix summarizes many of the ideas set out in the written submissions sent to the Review for its consideration. While it tries to capture the breadth of the views put forward by the many constituencies that responded, it does not purport to list every comment, concern or suggestion received. Comments have been organized using the following categories of respondent:

  1. members of the private bar;
  2. other members of the legal profession including judges, legal associations, the Law Society, and tribunal and government lawyers;
  3. community legal clinics, student law societies, and specialty clinics;
  4. community-based agencies, social action groups, and members of the public; and
  5. administrators of the Ontario Legal Aid Plan.

MEMBERS OF THE PRIVATE BAR

Lawyers from across the province who responded ranged in experience from very senior members of the bar to newly minted calls. Many practised in small firms and some were sole practitioners. Usually, a lawyer had either a criminal or family practice and would confine their remarks to the kinds of work that they did on a regular basis.

Client Needs

There was general agreement that many more client needs exist than are presently being covered by the Plan. Most respondents identified the pressing needs in the areas of criminal and family law. Some submissions, however, strongly argued that needs for legal services were broad and covered a wide range of areas. Further, these needs were often overlapping and often involved daily crises requiring only summary advice or limited interventions. Refugees, the elderly, children and those suffering from mental disabilities were identified as having special needs. One submission argued that too many lawyers are engaged in competing for Plan resources deflecting attention from a much needed assessment of the current system and the needs of our communities as a whole.

The Goals of the Legal Aid System

There was general agreement that the Plan should be providing legal representation to people who are unable to afford their own lawyers. There were differences expressed as to whether legal aid was a general social right or whether the service should only be provided in the most serious criminal and family law matters. There was concern expressed that without the adequate provision of legal aid, Charter rights would not be meaningfully observed, that the justice system would become undemocratic, and that economic strictures would erode the justice system to create a two or three tiered justice system. Further, legal aid's goal should also be to provide quality representation in order that the same degree of access to justice exists for everyone.

Coverage

Most submissions argued for a priority in family and criminal coverage: family because of its fundamental importance as a social institution, and criminal because of the liberty interest. All submissions argued that allowable hours and tariff levels are too low, especially in the area of family law.

Delivery Models

While supporting a mixed delivery system, most members of the private bar strongly urged the continuance of the certificate program especially in the areas of family, criminal, and refugee law. The advantages of judicare identified in the submissions included quality control, efficient, economic, responsive and flexible delivery, continuity of representation, independence of representation, the development of professional expertise, and client choice. While choice of counsel was considered an important issue by most lawyers, several respondents disagreed, arguing that choice of counsel does not really exist because of the reduced numbers of lawyers who accept legal aid. Moreover, clients, left to making their own choices about legal representation, often make a wrong or uninformed choice. Concerns were raised about duty counsel, their workload, and the limited nature of their contact with clients. Lawyers also submitted that any staff models set up in the area of criminal law should be funded on a comparable basis to that provided to the Crown Attorneys, and that these offices would be vulnerable to government underfunding.

Financing and Financial Eligibility

In terms of financing legal aid, most respondents argued that the largest funders should be the federal and provincial governments. Fine revenue, client contribution, application fees, low interest loans, lottery and gambling proceeds, and the Law Foundation were also identified as additional sources of revenue. One respondent suggested issuing tax receipts for pro bono work through a non-profit corporation set up for this purpose. Respondents were of mixed views on the continuation of the lawyer levy.

Most submissions argued that eligibility should be expanded to include the working poor and that clients should be permitted to contribute to fees. Debt loads and dependants should be factored into the criteria. Most submissions argued that eligibility against set financial criteria and not the type of legal issue presented should determine coverage.

The Impact of the Recent Constraints

Most respondents pointed out that the cuts to legal aid have created a host of problems for all involved: the justice system, the service providers and the clients. Many submissions identified the following issues: fewer lawyers and fewer senior lawyers taking legal aid; backlogged courts; inadequate preparation time; increased numbers of convictions and incarcerations; many more unrepresented individuals in an increasingly serious array of matters; the failure of many of these individuals to understand the consequences of the agreements into which they enter; the fact that the Crown is indirectly controlling who gets legal aid through charge screening procedures; overworked duty counsel; and restrictions on the ability to mount a complete defence.

Several submissions argued that both court costs and social costs are being created and exacerbated because of the failure to properly fund legal aid. For example, whole segments of the population are being precluded from asserting their legal remedies in the area of employment law. Poor clients are left to deal with the difficult task of asserting their rights in complicated legal proceedings when they may lack literacy or have a disability that will preclude their success from the outset. One submission emphasized that there are greatly diminished professional incentives, especially for the younger members of the legal profession, to develop criminal, family or "poverty law" practices.

Operations and Management

Generally, respondents felt that the Plan needed to control and monitor operational issues better: improved computerization; less red tape; better informed Area Directors; faster response time on authorizations; more consultation with the profession with respect to instituting operational changes; a merged clinic and certificate administration to provide clients with one-stop shopping; better regulation of who actually does the client work; and more effort in the area of monetary recoveries.

Legal Aid as Part of the Larger Justice System

Many lawyers offered suggestions about how various components of the larger justice system could be changed to provide savings to legal aid administration. In the area of family law, lawyers suggested expanding the Unified Family Court, and increasing the use of mediation; coordinating efforts between government agencies so child support, for example, is not sought where a parent is not in a position to pay it; developing more guidelines as in the case of child support. In the area of criminal law, one submission argued that by fully funding the operation of the Plan, savings will result from quicker trials, fewer incarcerations and the reduced risks and expenditures of wrongful convictions. Lawyers emphasized the need for better charging protocols, more diversion, and more police discretion. Some submissions identified the need for more court rooms and judges. One submission argued that government initiatives in the areas of, for example, spousal assault and drunk driving, have an impact on the cost of delivering legal aid services. Another lawyer suggested that by increasing the numbers of test cases and class actions, more people can have their legal problems addressed with greater efficiency.

Governance

Several submissions supported the Law Society's continued administration of legal aid arguing that it ensures both independence and lawyer participation. One submission described the situation of the Neighbourhood Legal Services Corporation in the U.S., reflecting the concern that if the profession loses control, the Plan will become just another underfunded social program. Other submissions argued that the Law Society was neither designed nor qualified to manage such a large operation as legal aid. All respondents expressed the need for the Plan to be independent of government.

OTHER MEMBERS OF THE LEGAL PROFESSION - JUDGES, LEGAL ASSOCIATIONS, THE LAW SOCIETY, AND TRIBUNAL AND GOVERNMENT LAWYERS

A wide variety of members of the legal profession responded who were not engaged in private practice. Many of their concerns centred on the effects that the cutbacks to legal aid were having on the administration of justice. Also, many legal associations represented the concerns of their members and the particular client groups served by them.

Client Needs

In their submission to the Review, the Ontario Family Law Judges Association and the Ontario Judges Association observed that many clients who cannot afford lawyers have serious legal problems which require urgent resolution. In this regard, clients have "a right to expect access" which, according to the judges, means understanding rights and remedies, being able to articulate needs and the basis for entitlement, and being able to navigate through a complex legal system. In the judges' view, legal aid is required in the criminal and family law contexts to ensure that low-income and indigent persons receive competent, consistent, and accountable legal representation appropriate to the needs of their case.

Consistent with this view, the Ontario Association of Children's Aid Societies and the Legal Services Branch of the Ministry of Community and Social Services argued that many of the people who come within their jurisdictions cannot afford legal representation, yet it is needed to deal with young offender issues, support applications, appeals with respect to social assistance matters, and child protection issues. From the perspective of the Workers' Compensation Appeals Tribunal, the need for legal aid is nowhere more apparent than in the workings of the administrative justice system because issues in administrative law provide and enforce the rights of many who live in poverty and who may lack the information and confidence to pursue them.

The Family Lawyers Association identified urgent needs in the area of family law, especially in the areas of safety, support, and child apprehension. Litigation, as well as mediation, negotiation, and referrals need to be covered by the Plan. For the Family Lawyers Association, the adversarial system depends upon both sides being effectively represented. In asserting the importance of coverage in the area of criminal law, the Criminal Lawyers' Association identified the uniqueness of a criminal proceeding and the fact that many accused are socially and economically disadvantaged. They also submitted that there were needs for a broad range of coverage that included the need for translation and transportation services. Further, Native Canadians had particular legal service needs. According to the CBAO, there is insufficient information at present to quantify the effects of decisions taken to limit the availability of legal services and that more efforts must be made to collect the data necessary to make considered decisions about the future of legal aid funding in Ontario.

The Goals of the Legal Aid System

For justice to be truly accessible, the CBAO submitted that there must be provision of legal services to those citizens who cannot afford them and the services must be of comparable quality to those obtained by those able to privately retain counsel. As outlined in their submission to the Review, the Ontario Family Law Judges Association and the Ontario Judges Association argued that it would be wrong to view legal aid as exclusively a social program. Rather, the Plan is a fundamental and essential component of the administration of justice. The Workers' Compensation Appeals Tribunal submitted that legal aid is not about compensating lawyers, but rather about giving substance to rights and ensuring access to justice. According to the Ontario Human Rights Commission, the values of the Human Rights Code are applicable to the goals of legal aid and the accessibility of affordable legal services has a significant impact upon the full inclusion of disadvantaged groups into society.

The Defence Counsel Association of Ottawa argued that the goal of the Plan should be to ensure equal access to justice and that its quality should not be dependent on the means of the defendant. The Criminal Lawyers' Association submitted that legal aid should endeavour to maintain as small a gap as possible with respect to the level of service between socio-economic groups. Citing the former Attorney General, Chief Justice Roy McMurtry, the Family Lawyers Association argued that legal aid was an important mechanism for civil liberty, and essential for the understanding and assertion of rights, freedoms, and obligations.

In its brief to the Review entitled "Access to Justice: Legal Aid in Ontario", the Law Society argued that the changes to the funding of legal aid has transformed it from a service oriented system with an emphasis on access to justice and the ideals of legal services as a matter of human rights, democratic principle and common decency, to one which struggles to provide service in an atmosphere focused on cost containment above all. They noted that in 1994, the Federation of Law Societies of Canada reaffirmed the commitment of all law societies in Canada to legal aid and to a core set of general principles with respect to its objectives. They also noted that the Law Society itself has reaffirmed the importance of the social justice rationale for legal aid, rejecting the view that it should be conducted primarily or largely as a charity.

Coverage

The Ontario Family Law Judges Association and the Ontario Judges Association strongly supported coverage in the area of criminal and family law because subsidized legal services have an important role to play in both maintaining respect for family law judgements, and bringing balance to the field between the resources of the Crown and the defence. In many submissions, the needs of children and young people were also emphasized as a concern. The Children's Aid Society, for example, asserted that coverage priorities should exist in cases of parental rights and children's safety. The Criminal Lawyers' Association argued that bail is an important coverage area as serious consequences flow from not having representation at this stage of the proceeding. The CBAO highlighted coverage in the area of refugee law because of the particular vulnerability of this client group.

Delivery Models

Criminal and family lawyer associations from across the province argued that the judicare model is optimal for providing quality legal services to family and criminal law clients for reasons that include: choice of counsel; flexible and adaptable delivery; quality control; cost effectiveness; client trust. Further, it was argued that clinic, staff or public defender delivery models would result in prohibitive start up costs and create the perception of inferior service. The Criminal Lawyers' Association of Ottawa also argued that it would be unfair to the thousands of people who rely on judicare for part of their income to move to an unproven staff model. The CBAO similarly supported judicare for criminal and family law service delivery. The Refugee Lawyers' Association supported a mixed delivery system and argued that clinics played an important role in matters not covered by certificates. The Workers' Compensation Appeals Tribunal submitted that while many lay advocates do competent work, the need for better regulation of them remains a live issue.

Financing and Financial Eligibility

The CBAO suggested that programs, akin to student loans, should be instituted for legal aid and that clients should be allowed to top up fees and contribute to disbursements. The Criminal Lawyers' Association suggested that legal aid should seek charitable tax status so that donations to the Plan could be deductible. Liens should be allowed on GST and tax refunds, and proceeds from police seizures could be a source of revenue for the Plan. In terms of eligibility, the Family Lawyers Association argued that more creativity was needed in order to expand eligibility through, for example, loan agreements. The Criminal Lawyers' Association suggested that the Plan should consider expanding eligibility for employed persons who lack the resources for representation. The Plan, however, needs to do a better job of monitoring continuing financial eligibility.

The Impact of the Recent Constraints

In its submission to the Review, the Law Society noted the developing schism in the justice system between those with ample means and those without, and it described a growing crisis with respect to the accessibility of the justice system for persons of modest means. What is at stake, in the Law Society's view, is the restoration of the promise of justice to those of modest means in Ontario through a demonstrated financial commitment to service on the part of government. In the context of explaining their own role in managing the Plan in the face of reduced funding, the Law Society stated simply, "the operation has been a success but the patient is near death".

In their submission to the Review, the Ontario Family Law Judges Association and the Ontario Judges Association discussed at length the effects the cuts to legal aid were having on the administration of justice in courts across the province. In sum, the judges assert that the cuts have negatively impacted on the quality of justice being meted out in today's courts as significantly more unrepresented litigants attempt to navigate a system that has not been designed for this. In particular, the judges noted the following: increased workloads for duty counsel; more judges assuming the role of "lion tamer" or inquisitor; increases in the numbers of incomplete or improperly drafted pleadings; longer trials; more adjournments; the creation of circumstances where "questionable guilty pleas" are being entered; incarcerations where, formerly, people would have been released.

The CBAO argued that the growth of un- and under-represented clients is consuming resources that impose significant costs on the larger justice system. For example, lawyers who do child protection work note that fewer of their applications are proceeding because litigants cannot get representation. The Family Lawyers Association posits that people are staying in unhealthy or destructive situations because of the unavailability of legal aid, or, as the Essex Family Law Association argues, people may begin to take the dangerous turn to self-help if their situations remain unremedied. Further, the efficiencies of case management or pre-trials cannot be realized without representation.

As the Ontario Judges Association noted, it is clear that the growth of unrepresented litigants has meant that the private bar has not filled the void left by the decrease in the number of certificates issued. As the Canadian Association of Black Lawyers argues, this means that deserving cases are not being advanced and the legal issues of the poor, working poor and even the middle classes are not being addressed. Further, when a lawyer loses his or her legal aid practice, the Kenora Law Association argues that the ability to do community or pro bono work, or to act for reduced retainers as in the case of Children's Lawyer matters, is similarly curtailed. This occurs, in part, because the loss of the income from legal aid affects the way the rest of the practice is built.

Operations and Management

The Criminal Lawyers' Association indicated that daily billing limits and the six month billing rule were appropriate and that for greater efficiency, legal aid offices should be housed in court houses around the province.

Legal Aid As Part of the Larger Justice System

The Family Court Judges noted that there are a collection of new statutes and legal issues that have emerged since the days before legal aid. Further, there are new expectations that the Bench will deal with the demands placed on them by society to address pressing social issues like sexual abuse and spousal assault. The need for legal aid, then, must be considered in this context.

In the area of criminal law, the Criminal Lawyers' Association argued that public attitudes and the way in which police charge have an impact on legal aid. They suggest the following measures be instituted to render more efficient and cost effective criminal litigation: pre-trials by phone; service by fax; disclosure by mail; charge screening by experienced prosecutors; young offender charge screening; and consistent application of diversion and alternative measures. The Criminal Lawyers' Association (London) submits that local sentencing tariffs should be developed, daily guilty plea courts should be instituted, and that absolute and conditional discharges should be granted more often, where appropriate.

Governance

While arguing that the Plan needs more community involvement, the Canadian Association of Black Lawyers submitted that the Law Society is well placed to govern the Plan and that an independent agency would be vulnerable to changing government priorities. AJEFO argued that the Plan should be independent of both the bar and government. The Criminal Lawyers' Association argued that scarce resources are pitting lawyers against each other. This would be remedied by the creation of an independent agency to allocate funds and create policy in conjunction with government, service providers, and the Law Society. It was of the utmost importance to the Criminal Lawyers' Association, however, that the Ministry of the Attorney General play no role in the management of criminal legal aid.

In its submission to the Review on the issue of governance, the Law Society emphasized their independence from both government and the profession. Whether administration remained with the Law Society was a question tied to whether Plan funding would permit the Law Society to again deliver an adequate range and level of service, which has been drastically eroded over the past three years.

COMMUNITY LEGAL CLINICS, STUDENT LAW SOCIETIES, SPECIALTY CLINICS

Over forty clinics from across the province submitted written briefs to the Review. They outlined the distinct role that they play in the delivery of subsidized legal services in Ontario. While supportive of the role of the certificate side of the program, clinics argued that their model was both effective and cost efficient for the delivery of poverty law services in Ontario.

Client Needs

Many clinic submissions argued that low-income Ontarians had both legal needs in the traditional sense and distinct and particular legal needs that related to their poverty and the highly regulated nature of their lives. Thus, a broad approach had to be taken in addressing these needs in order that consumers and communities could identify their needs in a changing environment. Further, the legal needs of low-income people were often intersecting and went beyond the need for traditional advocacy and representation services.

Submissions identified many areas of law as being of great significance to low-income people. They included landlord and tenant, income maintenance, Canada pensions, workers' compensation, employment insurance, human rights, employment standards, occupational health and safety, consumer, estates, criminal, family, immigration and refugee, and health law. Needs were also identified in other areas of law that have an impact on the lives of low-income people; for example, patient rights, mental health, police complaints, and child protection. Also, many submissions asserted that clients generally needed a more thorough understanding of their rights and had pressing needs for legal information.

Many submissions argued that the causes of poverty exacerbated people's legal problems such as illiteracy, youth, discrimination, mental illness, or language and cultural barriers. Further, different groups of low-income people had different needs for legal services. Several submissions pointed out that many of the problems faced by poor people involved daily crises of survival that required a range of service responses including advocacy, negotiation, referral, test case litigation, law reform, research, and self-help.

The Goals of the Legal Aid System

Many clinic submissions took a systemic view with respect to articulating the goals of the Plan. For example, many submissions identified the elimination of poverty as being one of the fundamental objectives of providing subsidized legal services to the poor. Other submissions argued that the plan was not simply a tool for matching clients with lawyers to solve problems in strictly legal ways and that it had a role to play in ensuring that the justice system, itself, was not used to perpetuate inequality and disadvantage.

For claims of equality and justice to have substance, some submissions argued that the goal of the legal aid system should be to provide low-income people with access to the legislative and judicial processes affecting them. More generally, some submissions identified the goal of the Plan as providing quality legal services to low-income people in the areas of law that significantly affect their lives.

Coverage

Clinic submissions indicated that the community-based board model was an effective and accountable way to prioritize coverage. Many argued that the prioritization of needs should encompass a wide range of services and issues extending beyond traditional legal values. Further, the wide range of legal services set out in the Clinic Funding Regulation needed to be preserved.

Needs that were fundamental to health and survival were generally given greatest priority. They included issues related to shelter, income maintenance, employment, education, liberty, the parent/child relationship, and equality.

Delivery Models

Clinic submissions argued that the community clinic model was highly effective for the delivery of poverty law services. As one submission put it, clinics are the best model of delivery for addressing the "crisis of hunger and homelessness." The strengths of the clinic model included their location in low-income communities, community-board direction, the networking of diverse expertise, and the multi-service approach to delivery and problem-solving. Specialty clinics served the important function of providing specific low-income communities with points of access into the justice system and addressing the needs of particular groups in more systemic ways. Specialty clinics also functioned to provide specialized legal information to other clinics and, more generally, to members of the legal profession as a whole.

Some submissions argued that the model for delivery had to be matched with the legal need being served. While supporting the work of the certificate side, some submissions expressed the concern that any restructuring should not be done at the expense of damaging the fundamental structures of the clinic side of the program. Further, clinics were generally opposed to expanding their mandates to include family and criminal service delivery, believing that these needs would overwhelm their poverty law mandate. Submissions from Aboriginal Legal Services Toronto, however, argued that an expansion of their clinic mandate was necessary in order to provide their constituency with family, criminal, and poverty law services in a way more appropriate for their particular clients' needs.

Financing and Financial Eligibility

Clinics agreed that the financing of legal aid should be a government responsibility, with some clinics arguing that the federal government should assume a greater share. Suggestions for enhancing revenue and services included revisiting the concept of pro bono publico, increasing of the levy on lawyers who did not participate in the Plan, and amending legislation so that in certain cases there would be the mandatory appointment of counsel.

Many clinic submissions expressed concern for the working poor and middle classes for whom legal services were too expensive. Contingency fees, repayment plans, and higher income cut-offs were cited as ways to increase access to legal aid. Submissions argued that more flexibility had to be exercised when considering applications for legal aid. For example, parental income should not be considered in assessing an application, and medical expenses should be deducted from income. The $25 application fee was consistently identified as being a significant barrier for low-income people in need of legal assistance.

The Impact of the Recent Constraints

Many clinics noted in their submissions that the cutbacks in legal aid have been accompanied by other reductions in public services that have exacerbated the problems of low-income people. Clinics universally noted the increasing numbers of people who seek assistance from them. Further, these clients appear to be under greater stress and present a wider array of pressing legal problems. Several submissions also indicated that it has been the most vulnerable in society that have been affected most negatively by the cutbacks in service. As one submission from a student clinic in Toronto noted, the maxim of the clinic has changed from "we will help these people" to "if we don't help these people, who will?"

Clinics are facing increased demands for advice in the area of criminal and family law and see increasing numbers of clients who have no opportunity to obtain any redress for the serious legal issues that confront them in such areas as employment, human rights, and debtor/creditor. Clinics note an increase in the numbers of guilty pleas entered, increases in the numbers of women remaining in and returning to violent situations, increases in the numbers of youth who cannot get social assistance, and decreases in the numbers of lawyers who will take legal aid files.

Operations and Management

Many submissions argued that the clinic system's role required a statutory basis and that it is important to preserve its separateness with respect to the rest of the Plan. Local control by community boards was also considered by many submissions to be of paramount importance. Many submissions also indicated that there was a need for greater communication between the clinic and certificate sides, better use of technology, and better training. In OPSEU's view, central bargaining for the clinics which are unionized would be more efficient.

Legal Aid as Part of the Larger Justice System

Many submissions cited the complexity and adversarial nature of proceedings as having a significant impact on the costs of administrating justice. Also, the reductions in service of government and administrative agencies increase costs and delays. Further, the view was taken in many submissions that there is a tremendous social cost to be paid because of the erosion of statutory protections in the areas of employment, landlord and tenant, and income maintenance law.

Governance

While clinics argued that retaining local control was important, many submissions endorsed the role of the Law Society with respect of the administration of the clinic side of the Plan. Some submissions discussed the tension between the independence and "clout" of the Law Society's administration, and the need for more community and consumer control. Independence from government was seen as a crucial element to plan governance.

COMMUNITY-BASED AGENCIES, SOCIAL ACTION GROUPS, AND MEMBERS OF THE PUBLIC

Generally, every group, individual, or agency that responded highlighted the needs of their particular constituency. Groups that were community-based, however, tended to view the issues more systemically, seeing the problems with legal aid as part of the larger crisis of poverty itself, and of access to government services to ameliorate it. Community input to legal aid was seen as an important issue for community-based groups.

Client Needs

Most respondents pointed out that low-income Ontarians have wide ranging legal needs starting with the provision of information relating to their legal rights. Areas of law requiring coverage ranged from the traditional services provided by the criminal, immigration, civil, employment, estate or family bars, to coverage that touched upon the fundamentals of a person's ability to survive, such as housing, income maintenance, health care, and human rights.

In the area of family law, respondents identified the seriousness of domestic violence and the legal needs that flow from it. Other areas identified for coverage included custody and support, the exclusive possession of the matrimonial home, property and pension division. With respect to criminal law coverage, many submissions emphasized that a disproportionate number of accused persons are indigent. The Thunder Bay Indian Friendship Centre submitted that members of their constituency often do not understand the consequences of criminal proceedings and need comprehensive criminal law coverage as a result. In the area of administrative law, many submissions identified the importance of representation in this area for the well-being of their constituents, including Workers' Compensation, Employment Insurance, Canada Pension Plan, Criminal Injuries Compensation Board, pay equity, consumer, environmental and human rights law.

Many submissions argued that different groups had different legal needs and that service delivery must take account of these differences. In the words of the National Action Committee on the Status of Women, treating people fairly and equally does not mean treating everyone in the same way. Different groups who were identified as having distinct legal needs included Aboriginal people, abused women and children, persons with disabilities, persons who live in rural communities, the elderly, children and youth, immigrants and refugees, visible minorities, and francophones. To deliver effective service to these groups, barriers of language, literacy, culture, mental or physical disability, geography, or fear of authority must be overcome.

The Goals of the Legal Aid System

Respondents from the community consistently asserted that there should not be one law for the rich and one law for the poor, and legal aid has an important role to play with respect to this. As was argued in many submissions, legal aid must concern itself with the vulnerable and economically disadvantaged members of society who need to invoke the law in order to protect their rights and assert their entitlements. It must provide legal services in areas fundamental to human necessities and rights. Low-income Ontarians should have the same legal rights and avenues of redress as any other Ontarian because this kind of access is crucial for a harmonious society. In short, legal aid services must ensure justice for all, regardless of the province's economy or an individual's ability to pay.

Coverage

Several submissions, such as that from the National Action Committee on the Status of Women, did not agree to the necessity of capped funding with respect to the delivery of legal aid services arguing that a cap was inappropriate given legal aid's importance to the administration of justice and to the Rule of Law. Other groups such as Houselink Community Homes and the Canadian Mental Health Association argued that if limited funding required prioritizing, then priorities must be determined around an individual's basic requirements such as liberty, financial stability, and housing. Other submissions identified health care issues, and coverage for people at risk of losing their homes, their children or their employment, as other important areas of coverage. The Ontario Association of Interval and Transition Houses argued that if priorities needed to be set between competing client needs, then a framework for decision-making that supports the objectives and goals of a publicly funded system must be developed to justify these difficult decisions.

Some submissions argued for a priority with respect to liberty issues. The Elizabeth Fry Society urged that comprehensive coverage was needed from initial detention to trial. The John Howard Society emphasized the importance of coverage for those who are incarcerated. Many submissions argued for equal or increased funding in the areas of civil and family law, citing either a deliberate or inadvertent gender bias to existing coverage priorities. Areas of priority coverage in family law included custody, access, support, property and pension division, and issues resulting from domestic violence. Other areas of coverage identified as a priority were wrongful dismissal, Highway Traffic Act violations, summary matters under the Criminal Code, consumer law, human rights, workers' compensation, employment insurance, and income maintenance issues where lawyer involvement was thought to resolve issues more quickly and effectively.

Delivery Models

Generally, the clinic system was viewed as an important source of service delivery by community groups. Further, community groups and service providers whose mandates fell within those of specialty clinics emphasized the importance that these clinics had for their various client groups. Clinics were viewed as efficient ways to deliver the variety of legal services needed by low-income people and they were seen as important points of access to the justice system.

Community groups also had relatively flexible approaches to service delivery. They argued that models had to be accessible, accountable, confidential, effective, local, and affordable. Some suggested full-service, one-stop service centres. One submission argued that lawyers should be connected to shelters. The Thunder Bay Indian Friendship Centre submitted that more lawyers should be put on salary through the Plan in order to provide clients with consistent and expert service with respect to the various issues that confront the Aboriginal community. Another submission argued that Aboriginal people should operate their own legal aid commissions. While many submissions supported a continuation of the certificate side, especially in the areas of criminal and family law where the issue of client choice was considered important, they also suggested expanding duty counsel, more utilization of paralegals, expanding clinics, and problem-solving in more interdisciplinary ways.

Financing and Financial Eligibility

Many community-based groups argued that application fees were onerous for their constituents and were a significant barrier to access to legal aid services. Many submissions argued that the government should be the primary funder. Other suggested sources of Plan revenue included casino, lottery and fine proceeds, victim surcharge revenue, the Law Foundation, and lawyer contributions from those members who do not work on legal aid files. One respondent suggested that costs should be sought and awarded to lawyers who secured them on a contingency fee basis.

In terms of eligibility, most community-based groups argued for the expansion of eligibility to encompass, in particular, the needs of the working poor. Repayment schemes and client contributions were often suggested as ways to extend this coverage. There was a general plea to make eligibility guidelines more flexible, in order to address the needs and circumstances of potential applicants. For example, many abused women do not have access to their finances and there are regional differences in the cost of living.

The Impact of the Recent Constraints

Shelters for abused women submitted that the cuts to legal aid have meant that more women are staying in bad or even dangerous situations. They also argued that even if a certificate is granted, lawyers will exhaust a certificate before the more substantive issues can be addressed. Submissions also argued that important societal objectives like the elimination of child poverty or domestic violence are being undermined by the cuts to legal aid. In the criminal context, many submissions noted the increasing workload of duty counsel and more guilty pleas from people who have defences. As the Elizabeth Fry Society argued, this occurs in part because duty counsel are the only form of assistance available for an accused and their role is strictly limited to the entering of such pleas.

In general, submissions cited increasing delays, increasing frustration, and the sense that the quality of legal services is diminishing. A frequently repeated concern was that more people have less confidence in the justice system in which greater numbers of people have no place to turn for help. More people are unable to pursue their legal remedies because of the inability to find a lawyer, the insufficiency of the tariff, or the fact that there are whole areas of law for which people can no longer get certificates.

Operations and Management

Suggestions to improve the management of the Plan included disbarring lawyers for defrauding it, faster turn around time for applications and billings, prioritizing areas of coverage and capping them, advising clients of the bills sent to legal aid for services provided on their behalf, and giving users and service providers input into operational decision-making.

The Older Women's Network submitted that legal aid needed to be designed for the poor and their legal needs, and to this end, it should offer one-stop services for education, advocacy, and law reform. Accessible buildings, interpretation services, and better trained staff around pressing social issues like domestic violence were also ways identified to improve service. Many submissions argued that the legal needs of low-income clients intersect with other needs and that legal aid needed to interact more effectively with other service providers and professionals in order to address more successfully the problems of its clients.

Legal Aid As Part of the Larger Justice System

Many submissions identified the need for the justice system itself to be made more accessible. Also, alternative forms of dispute resolution needed to be explored. The underfunding of institutions like the Children's Lawyer, and the Ontario Human Rights Commission, and the reduction in test case litigation were said to have a negative impact on the costs of the justice system as a whole. Community groups also urged that the recommendations of the Commission on Systemic Racism in the Justice System, and the Commission of Inquiry into Certain Events at The Prison for Women in Kingston, be adopted.

Governance

Two issues dominated the submissions with respect to governance: Plan independence and community input. Many submissions indicated that the Law Society was in too much of a conflict role to administer legal aid effectively. One submission argued that though well-intentioned and professional in their management, people busy in their own practices lacked the time and expertise for the task.

ADMINISTRATORS OF THE ONTARIO LEGAL AID PLAN

Area Directors and administrators responded from across the province. They provided an overview of how the certificate component of the Plan is currently being administered and how the current system of priorities is being implemented. There was a strong tension in their submissions reflecting the scope of client needs and the current funding constraints.

Client Needs

Several respondents argued that the lives of low-income people are quite different from those of traditional consumers of legal services and though different groups in society clearly have different needs, it would be wrong to overgeneralize in that all low-income people share many of the same legal needs. Needs that were identified included the need for basic legal information and summary advice, alternative dispute resolution, accessible facilities, interpretation services, and more generally, protection from powerful groups in society, including government. Areas of law included income maintenance, housing, administrative law, criminal law (especially where liberty is at issue), and family law (especially where custody or access is at issue).

The Goals of the Legal Aid System

One submission strenuously argued that it was crucial to have a mandate which reflected funding levels and that such a mandate would provide a clearer picture of what services to provide and how to deliver them. There was general agreement that the goal should be to provide equal access to all areas of the justice system for persons unable to afford it on a consistent basis, throughout the province.

Coverage

Priorities must be given to the most pressing needs, and criminal and family law areas were repeatedly identified as the most important areas of coverage. For many respondents, however, the current system is not meeting even the most urgent of needs in these two basic areas. In criminal matters, the possibility of incarceration was identified as a serious concern; in family law, the possibility of losing one's children, issues of domestic violence, child protection, or obtaining an adequate support order were identified as pressing issues. Some respondents proposed that an assessment of the seriousness of the matter for the applicant must be undertaken in order to determine coverage, while another respondent pointed out that many matters of great importance for low-income people can be solved with only a couple of hours work and that the system could be designed to accommodate this.

Delivery Models

There was overwhelming support for a mixed delivery model of legal aid services that included clinics, duty counsel services, and judicare. Several respondents suggested that staff models, duty counsel or supervised paralegals could be utilized in the delivery of services such as summary advice, bail, or small hearings and trials. Choice of counsel was identified as being an important consideration for service delivery in serious matters. Clinics were viewed as an effective provider of general poverty law services and could be expanded to provide specialized delivery in the areas of Workers' Compensation, Canada Pension Plan, or Employment Insurance. In terms of choosing delivery models, factors such as efficiency, cost, and quality should provide the bench marks for decision-making.

Financing and Financial Eligibility

Generally, Plan administrators favoured restricting eligibility criteria to those in greatest need. Criteria should be set in conjunction with Ministry of Community and Social Service guidelines, cost of living indexes, and poverty-lines. Further, the same guidelines should be used notwithstanding the legal issue at stake. Repayment plans were thought to be difficult to administer and application fees were generally considered to be a good idea. In terms of funding, one respondent identified the importance of long term and secure funding from government, and another respondent argued that the federal government, or ministries like Community and Social Services, should fund litigation that falls within their policy objectives.

The Impact of the Recent Constraints

As one respondent submitted, the cutbacks have meant that access to justice for many low-income people is being curtailed. Most Plan administrators pointed out that many more clients are proceeding unrepresented, sometimes in quite serious matters. They also pointed out that the cutbacks have directly contributed to the increasing workloads of duty counsel, increasing stresses on legal aid staff, court backlogs, and diminishing numbers of lawyers who will accept legal aid.

Operations and Management

There were several submissions that argued that the various delivery models should be unified under one administration that could monitor such matters as statistics, quality assurance, and funding. At the very least, the clinic and certificate sides required better coordination. Generally, submissions supported a continuation of area administration with more pro-active management to promote consistent and uniform applications of policy and service across the province. Some submissions suggested improved computer systems, increased training for Area Directors, the use of efficiency experts, and more ongoing contact between members of the legal profession and Plan administration.

Legal Aid as Part of the Larger Justice System

The complexity of the legal system was viewed as a problem in terms of legal aid service and access to justice more generally. In the area of criminal law, respondents submitted that Crown initiatives like disclosure, diversion, charge screening, pre-trials, and electronic remands should continue to be used or implemented. Section 11 of the Young Offenders Act was considered unfair and inappropriate, and the Charter has added costs to the provision of legal aid. In the area of family law, respondents suggested capping the number of family court appearances and instituting duty counsel for the General Division. Cutbacks to the Bail Program, the Children's Lawyer, and the Family Support Plan, for example, have had deleterious effects on legal aid's ability to meet increasing demands, as have police charging policies, increases in the number of new offenses, government initiatives like zero tolerance policies in schools, the reduction in the funding of test cases, and increases in court filing fees.

Governance

Whether the Law Society maintains governance or whether an independent agency is instituted, most submissions favoured more input from all stakeholders with respect to the administration of legal aid. One respondent noted that one advantage to Law Society governance is that it has been a strong and positive force with respect to negotiating with government. On the other hand, it was suggested that the public sees a conflict of interest with respect to the current governance structure. According to most respondents, independence from government needs to be an important feature of any governance structure.