Chapter 5: A Framework for Setting Priorities for Legal Aid Services

Management of the legal aid system has always required that those engaged in its administration set priorities for the system. For the most part, the history of Ontario's system has been one of expansion. In this context, its management typically involves a determination of which new area of service provision should be accorded the highest priority in allocating new resources. Expansion of the system in this sense has, however, been a rarer occurrence in the last decade or so. More recently, of course, the legal aid system has been subjected to a funding cap which has required that priorities be set in terms of which services should be reduced or eliminated. As a matter of policy-making and implementation, it is a much more difficult exercise to reduce or eliminate services already in existence. This chapter addresses the implications of capped funding for the process of priority-setting in the legal aid system.

Thinking about the problem of priority-setting for legal aid in the context of fixed resources leads to a consideration of some fundamental questions of public policy. Upon what principled basis can a decision be made to give priority in resource allocations for legal aid spending to criminal law, for example, as opposed to family law, or refugee and immigration law? Is this question illuminated by trying to determine what the nature or source of the state's obligation to fund legal aid is in the first place? Working from first principles in this way, is it possible to identify a rank-ordering of legal aid expenditures which would enable policy-makers to make service cuts on a principled basis in an era of fiscal constraints? The next section of this chapter considers questions of this kind.

The chapter then considers the legal constraints which impose an obligation on the province of Ontario to fund legal aid services. The province is required by the law of the Canadian Constitution and by some federal statutes to provide legal aid services in particular contexts. These legal obligations are, to some extent, informed by Canada's commitment to the International Covenant on Civil and Political Rights. We briefly examine each of these requirements for two reasons. First, the existence of law of this kind offers some evidence of priority-setting in the legal aid field by legislators. Second, the existence of these legal requirements constrains, to some extent, the ability of the province of Ontario to set its own priorities in the legal aid field. We attempt to provide some measure of the present and possible future impact of these constraints on provincial priority-setting.

Against this background, we provide a brief account of priority-setting in the legal aid system in Ontario in recent years with a view to determining what can be learned from that experience. We first examine priority-setting on the certificate side of the system under the 1994 Memorandum of Understanding, and then offer a brief account of priority-setting in the clinic system. The final section of this chapter outlines a new model for priority-setting in the legal aid system in Ontario.

NORMATIVE JUSTIFICATIONS FOR LEGAL AID

In order to identify the underlying moral or political justification for the state's obligation to provide legal aid, if indeed it has one, some basic issues of political or democratic theory must be considered. Our purpose in doing so is to inform our understanding of how priority-setting, as a matter of principle, might best be conducted in the legal aid context. If might be assumed that the most fruitful analytical path for achieving this purpose is to identify the normative justifications for the state's obligation to provide legal aid in particular contexts such as criminal law and family law, evaluate those justifications with a view to placing them in an order which would suggest, at the level of general principle, that preference should be given to the funding of criminal law or family law legal aid or vice versa.

We have come to the conclusion that such an approach is not fruitful. In coming to this conclusion, we have been much influenced by a thoughtful background paper prepared for the Review by Professor David Dyzenhaus. Indeed, in his view, this approach, which he terms the "box approach", is misguided. In what follows we suggest that the underlying normative foundation for the state's obligation to provide some form of legal aid is to be found in Canadians' shared commitment to the Rule of Law as an essential feature of the Canadian political system. Further, we attempt to demonstrate why the "box approach" to priority-setting is not satisfactory and, more particularly, why a preoccupation with the value of avoiding incarceration, or "negative liberty", will distort priority-setting for legal aid. Finally, we identify the implications of these conclusions for legal aid priority-setting.

LEGAL AID AND THE RULE OF LAW

The development of democratic societies has been accompanied by the adoption of the notion of the Rule of Law-the replacement of rule by arbitrary measures or by unchecked discretion with rule by law. A well-known statement of the centrality of the concept of the Rule of Law is that of F.A. Hayek, in his essay "Planning and the Rule of Law".

Nothing distinguishes more clearly conditions in a free country from those in a country under arbitrary government than the observance in the former of the great principles known as the Rule of Law. Stripped of all its technicalities, this means that government in all its actions is bound by rules fixed and announced beforehand - rules which make it possible to foresee with fair certainty how the authority will use its force and powers in given circumstances and to plan one's individual affairs on the basis of this knowledge.

Two features of the concept of the Rule of Law are particularly relevant in the present context. First, it is inherent in the notion of substituting or replacing arbitrary measures with legal rules that the rules can be known. As Hayek says, the rules must be fixed and announced beforehand. Dyzenhaus refers to this as the "publicity" condition of law. Secret law is anathema in a democratic society. The promise of a democratic society that each of its citizens will have equal protection under its laws will be empty if that society fails to meet the publicity condition.

Second, it is implicit in the notion of the Rule of Law that the state's obligation is not one of merely disclosing the law, but rather one of disclosing the law in a fashion which makes it accessible to the individual. Individuals must have access to the law, in the sense that they are enabled to understand their obligations or their rights, as against the state, and to plan their affairs accordingly.

The link between the Rule of Law, then, and an obligation of some kind imposed upon the state to provide assistance to citizens in facilitating their understanding of the law is this: If a state enacts or develops laws which are so complex that many of those who are subject to those laws cannot acquire equal, or perhaps any, understanding of them, such that they can neither understand nor use them, the laws to which they are subject do not meet the publicity condition. There is arguably, therefore, a state obligation of some kind to facilitate meaningful access to its laws. If, for example, our criminal law or social assistance or family law has become very complex, as indeed it has in many areas, the fact that many citizens cannot, without the state's assistance, respond to or cope with that law suggests that the Rule of Law will be undermined if that assistance is not forthcoming.

We do not wish to suggest, however, that the commitment of Canadians to the concept of the Rule of Law leads inescapably to the conclusion that the state has an unlimited obligation to provide, at public expense, lawyers to all citizens who encounter difficulty in obtaining access any particular law. Rather, our point is a more modest one. In a democratic society committed to the Rule of Law, a publicity condition is inherent in the use of law by the state, and the complexity of that law may, in turn, impose an obligation on the state to facilitate access to the effective use of that law in some fashion. The more complex the law in question, and the greater its impact on individuals who lack the means to acquire help in understanding it, the more intense will be the burdens imposed on the state by the publicity condition. The individual's interest in or entitlement to access to the law thus appears to be inherent in a decision by the state to utilize law to accomplish a particular social or political objective.

While we do not believe that the foregoing principles are controversial, it must be noted that the concept of the Rule of Law is a source of important controversies on questions of political theory and the proper role of law and the state. Hayek, for example, would argue that governments should be reluctant to use law to intervene in the lives of individuals. His premise is the libertarian one: that the space of "negative liberty" (one's liberty to do as one pleases) should be left as large as is consistent with maintaining minimal public order. Intervention beyond that minimum requirement would, in his view, introduce unnecessary uncertainty into the law.

Other theorists argue that the virtue of the Rule of Law is merely instrumental, in the sense that law can be used to implement political values other than that of "negative liberty". Still others would argue that the ideal of the Rule of Law is equality, and attempt to show a necessary connection between the Rule of Law and liberal or democratic political philosophies. As one can imagine, across the broad spectrum of opinion of this kind, one encounters serious debates as to the appropriateness of government regulation of certain activities, the extent to which health care and other social benefits should be seen as entitlements, and so on.

For our purposes, these controversies concerning the ideological content of the notion of the Rule of Law, are, we believe, beside the point. The publicity condition, and the consequent obligation of the state to facilitate meaningful access to the use of law, flow from a decision by the state to use law. These ideological controversies, of course, relate to the question of whether or not the state should use law in the first place. Once that decision has been taken, however, the publicity condition is engaged, and the state is implicated in the problem of ensuring access to the law. This ideological debate is beside the point for our purposes, then, because the legal system in Canada and in Ontario has clearly taken a position that laws-and often very cumbersome ones-will be utilized to implement a broad range of values and programs. Thus, while some may wish to debate whether or not particular uses of law are appropriate, there is no doubt that its widespread use is already entailed in the law of Ontario and Canada and has become part of our social and legal fabric. In short, legal aid must take the legal system as it finds it.

As a matter of principle, then, the underlying rationale for the state's obligation to facilitate access to the law is not restricted to any particular kind of law or type of legal situation. The normative foundations for legal aid do not assist us in making an argument for giving priority to one domain of law over another in terms of access to legal aid resources.

One further implication of some importance can be drawn from the relationship of the Rule of Law, through the publicity condition, to the state's obligation to facilitate access to the law. To the extent that the law is needlessly complex or in some other respect designed in a manner that indirectly or, indeed, directly requires legal advice and assistance, it may be that the legal regime in question has unnecessarily imposed burdens on the state to facilitate access to the law. If, for example, the defective design of a particular statutory scheme makes it necessary that individualized legal problems be handled on a case-by-case basis, the defect in question will have imposed on the parties, and upon the state, a very expensive burden. In some instances, then, the state's obligation to facilitate access might be much better served by removing the defect from the statutory scheme. This is, in our view, an important point, and one which we discuss at some length in chapter 6 of this report.

BEYOND NEGATIVE LIBERTY

Having set out our conclusion that an examination of the normative foundations of legal aid does not provide a principled basis for giving priority access to legal aid resources to one legal domain over another, we must consider at some length a serious argument to the contrary. Some would suggest that it is easiest to justify imposition of an obligation on the state to fund legal aid in the criminal law context. Two reasons for this suggestion are typically offered.

First, it is suggested that it is in the domain of criminal law that the accused individual is at risk of losing his or her physical liberty, and this factor engages the important value we place on not losing one's freedom, or the "negative liberty" interest. Second, in the context of criminal law, the accused is pitted against the massive resources of the state, and it may be argued that simple obligations of fairness require the state to provide assistance to an accused person facing such an unequal contest. For reasons such as these, it is arguable that the allocation of public resources to legal aid in the criminal law context can be defended on grounds that are unrelated to the publicity condition and the Rule of Law.

It is important that these arguments be examined carefully in the present context as it appears that considerations of this kind lead some to argue either that legal aid for criminal law should trump legal aid in other domains such as family or "poverty law", or that, within the domain of criminal law, the "negative liberty" interest should trump the need for legal aid resources in cases where no significant risk of incarceration is present. Our response to these suggestions is that, on closer examination, the "negative liberty" test does not seem to be capable of drawing satisfactory distinctions between criminal law and other legal domains, or indeed of establishing a satisfactory priority test within the domain of criminal law itself.

The appeal of the "negative liberty" test or principle may arise from the fact that most observers would agree that it identifies a factual situation in which a compelling case for some form of legal aid is made. What the principle appears to be incapable of doing, however, is successfully identifying contrasting situations in which either no legal aid is appropriate or only some inherently lesser claim to legal aid can be made. Thus, within the domain of criminal law, for example, it is not difficult to imagine cases involving no risk of incarceration in which the claim for legal aid appears stronger than in some kinds of cases involving that risk. Thus, a young adult charged with a first offence who has difficulty communicating and for whom a conviction might result in a loss of employment and other negative consequences that may flow from acquiring a criminal record may appear to make a stronger claim for legal aid than someone who has been convicted several times before, faces an overwhelming and uncomplicated case, is able to communicate and knowledgeable about the justice system, and risks only a short period of incarceration about which he or she is not particularly troubled.

It is simply incorrect, then, to suggest that in any case where incarceration is a risk because of, for example, a failure to appear, the claim for legal aid resources is inescapably stronger than in any other case where physical liberty is not at risk. This suggests that there are other values or interests at stake in considering the allocation of legal aid resources within the context of criminal law. It may be difficult to articulate the nature of the broader range of interests at issue-Dyzenhaus has suggested that a broader notion of personal autonomy may be illuminating-but the important point for our purposes is that there appears to be a plurality of interests underlying the claim for legal aid in the context of criminal law, and that "negative liberty" cannot serve as a reliable guide to the cases most deserving of legal aid.

Similarly, the "negative liberty" test is not particularly helpful in drawing clear distinctions for priority-setting purposes between criminal law and other legal domains. In the first place, it can be and has been argued that "negative liberty" interests are often at stake in other legal domains. In refugee determinations, for example, the unsuccessful claimants may well face a period of incarceration, or worse, if returned to their jurisdiction of origin. The involuntary civil commitment of a psychiatric patient, although clearly not a criminal law matter, unquestionably engages the "negative liberty" interest. In the family law context, some observers have argued, in effect, that "negative liberty" issues are often at stake. Thus, for example, where an administrative agency threatens to remove a child from the family home because of an allegedly unsafe environment, the situation might be characterized as involving "negative liberty" (at least for the child) and, indeed, as one which places the family in a contest with a powerful agency of the state. Cases of domestic violence where the victim is in need of legal assistance simply to get out of the home or to establish any freedom of movement in the community may also be considered to engage the "negative liberty" interest. In short, the boundaries between the domains based on the "negative liberty" test begin to crumble on closer examination.

More important, perhaps, the kinds of cases in these other domains which would fail a "negative liberty" test are not necessarily less deserving than many criminal law "negative liberty" cases. Where, for example, an unemployed single parent is seeking to enforce legal entitlements to housing or to sources of income, such as workers' compensation, employment insurance, or welfare, the claim for access to legal aid resources may appear stronger than the claim of someone charged for the second time with impaired driving who may face a short period of incarceration if convicted. Indeed, it may well be that an opinion survey of people experiencing poverty would reveal that they rank claims for legal assistance to enforce their entitlement to the basic necessities of life somewhat higher, as a general proposition, than claims they, too, might make for legal aid in criminal law matters.

Further, within other domains, the inability of the "negative liberty" test to function as a sure guide to the most important cases repeats itself. Thus, in the context of family law, while it may well be the case generally that situations of physical abuse can make a greater claim to legal aid resources than those where it is not present, generalizations of this kind tells us very little about the claim of a particular woman in a situation of non-physical abuse. Nor is it difficult to imagine situations in which the health or safety of a spouse or children may be at risk in a case not involving physical abuse where the claim for legal aid resources may appear to be at least as strong as that in some cases involving physical abuse. Custody claims where the current custodial parent poses a grave threat to the emotional health of a vulnerable child offer one illustration of this point.

Focusing on the "negative liberty" interest as a test for the worthiness of claims to legal aid resources, then, leads to a number of difficulties or distortions. First, the "negative liberty" test tantalizingly suggests a clear basis for assigning priority to the need for legal aid resources in criminal law over other areas of law and, within criminal law, for granting priority to cases involving the risk of incarceration. And yet, when the ability of the "negative liberty" test to accomplish these objectives is examined carefully, it appears incapable of providing persuasive grounds for drawing such distinctions.

Second, when a focus on "negative liberty" is extended to other legal domains, it obscures the analysis of priority-setting in those domains. For example, an attempt to set priorities on the basis of the "negative liberty" test appears to obscure the interests at stake in the family law context. Although a case in which a social service agency threatens to remove a child from his or her home may be said to engage the child's "negative liberty" interest, the interests at stake in such a case are not fully, or even best, characterized as related to "negative liberty". Here the invasion of liberty is not designed as punishment, but rather as the product of a decision, however misguided it might be, that removal of the child from the home is, in the agency's view, in the best interests of the child.

Finally, focusing on the "negative liberty" test as a basis for identifying priorities for legal aid runs the risk, especially in the context of capped funding, of creating a legal aid system which favours the interests of men, who are normally those accused of crime, as opposed to those of women, who are more frequently in need of family law or related "poverty law" services than are men. In the recent debates on legal aid in Ontario, many have commented on the patent unfairness that would result if, in the context of domestic violence, legal aid resources were to be made available to the accused male spouse for the assault charge but denied to the victim female spouse pursuing family law remedies in order to deter further the injuries to herself or her children resulting from the abuse.

For all of these reasons, then, we have come to the conclusion that the "negative liberty" interest does not provide a satisfactory basis for a rank-ordering of claims to legal aid resources from one legal domain to the next or, indeed, within particular legal domains. Although the "negative liberty" interest is, indeed, one of the important normative justifications for providing legal aid, it is only one of several such interests. Focusing on the "negative liberty" interest for priority-setting purposes at the expense of others will lead, we suggest, to a distorted analysis of the relative weight to be given to any particular claim for legal aid.

CONCLUSION

Our conclusion, then, is that an examination of the normative foundations for legal aid supports the notion that the state has an obligation, varying with the circumstances at issue, to facilitate access to law. This obligation flows from the condition of publicity, which is an inherent requirement in the use of law in a society such as ours, which accepts the fundamental importance of the Rule of Law. Where the law deployed by the state is complex, and affects important interests of those with limited means, the publicity condition will require the state to facilitate access to the law. Legal aid is one, but not the only, device that might be used to meet that obligation. Another, for example, might be to render the law less complex. An examination of the normative justifications for legal aid does not, however, appear to provide a basis for a rank-ordering of claims that might be made by various legal domains, nor, within such domains, a basis for rank-ordering the claims of particular case types. More specifically, the interest in "negative liberty" does not appear to facilitate such an exercise. Indeed, we adopt the view that undue reliance on the "negative liberty" interest causes a number of distortions in the analysis of the relative weight of particular claims for access to legal aid resources.

The interests that support claims to legal aid resources are various, both within criminal law and in other fields. Analysis at the level of general principle, then, suggests that priority-setting in legal aid should be premised on the assumption that a rank-ordering of this kind cannot be sustained. Further, our difficulty in identifying general principles which will facilitate a rank-ordering of entitlements to legal aid suggests that priority-setting in the legal aid context needs to be based on the circumstances of particular cases and the parties to them, should retain an element of flexibility, and should be subject to revision in the light of experience.

LEGAL OBLIGATIONS OF THE STATE TO PROVIDE LEGAL AID

This section outlines the constitutional and statutory law which imposes legal obligations on the province to fund legal aid services. Principal attention is focused on those guarantees in the Canadian Charter of Rights and Freedoms which appear to impose such an obligation. Brief reference is also made to relevant provisions of the International Covenant on Civil and Political Rights and to federal statutory schemes which provide a right to counsel funded by the provinces.

As a preliminary point, however, it is useful to describe the discretion exercised by the Courts, prior to the adoption of the Charter, to give effect to a right to counsel in cases where Courts determine that their presence if counsel is necessary in order to conduct a fair trial. The accused in a criminal case has a statutory right to make a "full answer and defence" to the charges laid. Canadian Courts have taken the view that the appointment of counsel might be necessary in a particular case in order to enable the accused to exercise that statutory right.

Although at one time it was the occasional practice of Courts to appoint counsel who would then act on a pro bono basis, in more recent years Courts have acted on the assumption that, if the Court indicated that defence counsel should be appointed, then either the Attorney General of the province or the province's legal aid plan would appoint and compensate counsel. It is not entirely clear what course could be followed if the Attorney General and the legal aid plan refused to appoint counsel, but the practice followed in Ontario appears to have been one of appointing and remunerating counsel in such circumstances.

Although the test for determining whether the Court should exercise a discretion to require counsel has been variously stated by the Courts, the substance of the test is that the Court will exercise this discretion in instances where, because of the complexity of the case, the seriousness of the charges, or other circumstances such as the accused's lack of knowledge or skills, the judge concludes that the presence of counsel is essential for the conduct of a fair trial. In reaching the conclusion that counsel is necessary, Courts were to take into account the duty of the trial judge to assist an unrepresented accused in presenting a full answer and defence. Further, it is accepted that counsel should not be appointed by the Court over the objections of the accused. Accused persons are generally entitled to represent themselves if they so choose.

The importance of this judicial discretion for our purposes is twofold. First, notwithstanding the fact that its importance as a source of counsel has been surpassed by the creation of provincial legal aid plans, the existence of this judicial discretion has not been eradicated by them. Accordingly, it is still possible for a Court to exercise such a discretion in favour, for example, of an unrepresented accused who has been denied legal aid. Second, although such arguments on behalf of an unrepresented accused who has been denied legal aid would now be made on the basis of the right to counsel secured by the Charter, it would appear that the Charter jurisprudence on these issues has to some extent been informed by the experience of the Courts in exercising this earlier discretion to recognize, in effect, a right to publicly funded counsel.

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

Canada is a party to the International Covenant on Civil and Political Rights and its Optional Protocol. This international convention or treaty covers much of the same ground as the Canadian Charter. In particular, article 14(3)(d) provides for a right to counsel in the following terms:

14.-(3) In the determination of any criminal charge against him, every one shall be entitled to the following minimum guarantees, in full equality:
(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed of his rights; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.

Canada's ratification of this convention does not, in itself, make the convention and, more particularly, article 14(3)(d) part of the domestic law of Canada. Nonetheless, this provision is of some importance to discussion here as it is clear that, at the very least, the Covenant protection of a right to counsel will be used by Canadian courts as a reference for interpreting the relevant provisions of the Canadian Charter.

The right to counsel afforded by this article is circumscribed in various ways. The right is available only in the context of a criminal charge. Further, although choice of counsel is conferred generally on persons who have been charged, the right to counsel for those who cannot afford representation is the lesser right of having counsel "assigned" to the accused. The right to assigned counsel may be more generously available than that envisaged in some provincial legal aid plans, however, because it applies to all who do not have "sufficient means" to pay for representation. This could include a larger group of accused persons than those identified by eligibility tests in at least some provincial legal aid schemes. An accused person of modest means, who may not be eligible for provincial legal aid, might well be unable to afford to retain counsel in a complex and lengthy matter.

THE RIGHT TO COUNSEL UNDER THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

There are a number of guarantees set forth in the Charter which either provide a clear foundation for a constitutional right to counsel under current law or have the potential to provide a basis for expansion of this right as Canadian constitutional law on this topic continues to evolve over time. The relevant sections are:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with principles of fundamental justice.
....
10. Everyone has the right on arrest or detention
(d) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; ....
11. Any person charged with an offence has the right....
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
15. Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Two further provisions of the Charter are relevant to this discussion. First, section 24(1) of the Charter provides that the Courts may, in a case of Charter breach, grant "such remedy as the Court considers appropriate and just in the circumstances". Second, in the event that a Court finds that an invasion of one of the rights secured by sections such as sections 7, 10, 11(d), or 15 has occurred, section 1 provides that the limitation on the right will be held not to be a contravention of the Charter if it comes within the class of "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". Thus, if a provincial statute establishing a legal aid scheme failed to meet one of the requirements of the Charter set forth above, the province would nonetheless have an opportunity to defend the limitation on the Charter right on the basis of the section 1 test.

Of the four Charter protections set out above, the first three sections 7, 10, and 11(d) relate more directly to a right to counsel than does section 15. Indeed, one of the interesting questions for jurisprudence in this area is whether the equality rights secured by section 15 may be considered to have some impact on the question of the right to counsel. Of the three provisions more directly related to the right to counsel, it is obvious that section 10 speaks rather narrowly to rights conferred upon an individual on the occasion of an arrest or detention. Sections 7 and 11(d), on the other hand, appear to have been used interchangeably to provide a foundation for a constitutional right to counsel at trial in the criminal law context. Of the two, however, it is only section 11(d) which, in its own terms, is limited to that context. Section 7 is, in this sense, a more broadly conceived Charter right. Accordingly, a second interesting question for Canadian jurisprudence on the right to counsel is whether a more expansive treatment of the constitutional right to counsel may emerge from the evolving jurisprudence of section 7. We examine each of these three protections briefly before turning to a discussion of equality rights under section 15.

RIGHTS UPON ARREST OR DETENTION UNDER SECTION 10(B)

Section 10(b) confers a right to retain and instruct counsel without delay and, as well, the right to be informed of that right upon arrest or detention. The jurisprudence of section 10(b) clearly indicates that this section does not provide a foundation for a right to counsel at trial is not provided. With respect to the right conferred at the time of arrest or detention, however, the Supreme Court has held that it extends beyond the mere right to hire counsel or to be informed of that right.

In R. v. Brydges, the Court held that a detainee should be informed "of the existence and availability of the applicable systems of duty counsel and Legal Aid in the jurisdiction, in order to give the detainee a full understanding of the right to retain and instruct counsel". The Court also stated that the right to retain and instruct counsel has come to include "in modern Canadian society ... the right to have access to immediate, although temporary, advice from duty counsel irrespective of financial status". The Court thus appeared to approve of the availability of such services even if, in Brydges, it did not directly require that they be established. Unsurprisingly, however, provinces typically accepted the implicit invitation to set up "hot line" or "1-800 number" duty counsel services, often referred to as "Brydges duty counsel", for the purpose of providing immediate and temporary advice to detainees at public expense.

In the later case of R. v. Prosper, however, the Court clearly indicated that the establishment of "Brydges duty counsel" schemes was not, in the Court's view, mandatory, although the Court further held that there may be real costs, in terms of the admissibility of evidence, entailed for provinces that do not establish such a scheme. With respect to the latter point, the Court was prepared to accept that a province which was unable to provide immediate advice might well be unable to obtain a breath sample within the two-hour evidentiary presumption limit required by the statute. Once the detainee had expressed the desire to see a lawyer, a sample cannot effectively be taken until a reasonable opportunity to consult counsel has been given.

Apart from this very compelling evidentiary incentive for adopting the Brydges duty counsel system, however, the Court held that the adoption of such a scheme is not truly mandatory for reasons that may be of broader significance for the interpretation of the right to counsel guarantees under the Charter. The Court relied on the legislative history of the Charter in holding that it does not expressly guarantee a right to publicly funded counsel. In 1981, an attempt had been made to include in section 10 language similar to article 14(3) of the International Covenant requiring the provision of counsel to persons "without sufficient means to pay for counsel" where the interests of justice so require. This proposed amendment was rejected. Further, the Court suggested that imposing a positive obligation to establish such services would constitute an inappropriate interference with the governments' "allocation of limited resources". The Court also indicated a reluctance to adopt a view which would carry with it the implication that "in provinces and territories where no duty counsel system exists the logical implication would be that all arrests and detention are prima facie unconstitutional".

THE RIGHT TO A FAIR HEARING UNDER SECTION 11(D)

Section 11(d) secures to a person "charged with an offence" the right to "a fair and public hearing. "A number of proceedings have now established that, in cases of sufficient seriousness and complexity, "the accused cannot receive a fair trial without counsel." In R. v. Rowbotham, the Court of Appeal for Ontario held that, as a result of the length and complexity of a drug prosecution, the accused was entitled to funded counsel. In other cases, the courts have placed some emphasis on grounding "complexity" on the likelihood of imprisonment, the need for counsel to collect evidence, the number of charges laid, the nature of the issues in the case and the accused's own ability to deal with them, and procedural aspects such as the possibility of a voir dire. "Seriousness" will often be established by the prospect of imprisonment. The courts have not yet clearly determined, however, whether seriousness is also established by the potential loss of livelihood.

In Rowbotham, the Court of Appeal was prepared to enforce the right to counsel even though one of the accused enjoyed a level of income that made her ineligible for assistance under the Plan. It was the court's view that, even though found ineligible, she could not afford to retain counsel for the lengthy proceeding which she faced. In Rowbotham, however, and this appears to be the prevailing view in the case law, the court stopped short of ordering that either the Attorney General or the Plan fund the defence. The court noted that the remedial power under section 24(1) of the Charter enabled a trial judge to stay a prosecution in a case where the presence of counsel was necessary to secure a fair trial. This would be the appropriate relief, in the court's view, if satisfactory arrangements were not made by the province or the Plan to provide counsel.

Although the courts have thus recognized a right to funded counsel under section 11(d), neither under this section nor under section 7 have the courts secured to the accused a right to choose counsel. Thus, restrictions on choice of counsel or on the amount to be paid to counsel under legal aid plans are not considered to be a constitutional violation. On the other hand, courts have taken the view that the right to counsel includes the right to the effective assistance of counsel. The threshold to be met in establishing that counsel is ineffective will apparently, however, be a high one. It must be demonstrated both that counsel is incompetent and that, but for the incompetence, a different result might have obtained.

THE RIGHT TO FUNDAMENTAL JUSTICE UNDER SECTION 7

In section 7 the right set out not to be deprived of "life, liberty and security of the person" except in accordance with "the principles of fundamental justice" has provided a second basis for a constitutional right to counsel in serious and complex matters. While section 7 thus covers the same constitutional terrain as section 11(d), the potential scope of section 7 is obviously much wider. The wording of section 7 is sufficiently broad that it could provide a constitutional foundation for publicly funded counsel in the context of appeals in criminal cases and, perhaps, in the context of cases lying outside the domain of criminal law. Attempting to draw conclusions on questions of this kind, however, requires analysis of a body of complex constitutional jurisprudence which will be only briefly alluded to here. It is critical to such an analysis to develop a sense of the views expressed by members of the Supreme Court of Canada on the proper interpretation of the section 7 concepts of "liberty", "security of the person", and "fundamental justice".

Liberty

At a minimum, it appears to be established that the section 7 right to liberty is a right to be free of physical detention imposed by the state either as a result of a criminal prosecution, or indeed, in any other circumstance, as, for example, where individuals with mental disabilities are restrained in some fashion. The more difficult question is whether the notion of liberty can be expanded to embrace a broader concept of personal autonomy. A majority of the Supreme Court adopted a broader approach of this kind in B. (R. ) v. The Children's Aid Society of Metropolitan Toronto, in which a majority of the Court held that the right to liberty included some degree of parental rights in relation to their children, and a plurality of the majority suggested that the liberty interest was "rooted in the fundamental concepts of human dignity, personal autonomy, and choice in decisions going to the individual's fundamental being".

The nature of the threat to liberty required is considered in a recent series of decisions dealing with the principle against self-incrimination. The Supreme Court adopted the view that state compulsion to testify or to produce documents infringes section 7 if refusal to comply may lead to a criminal charge of contempt of court. Apparently, then, the threat need not be immediate; it may arise from subsequent proceedings. In one of these cases, the Court adopted this view in the context of a non-criminal proceeding before a provincial securities commission.

Security of the Person

As with the liberty interest, the critical question regarding the notion of "security of the person" is whether it extends beyond physical interference with security and beyond the context of the criminal law. Again, the Supreme Court has taken a broader view, at least on the former point. In Rodrigues v. British Columbia (Attorney General), a majority of the Supreme Court held that "personal autonomy, at least with respect to the right to make choices concerning one's own body, control over one's physical and psychological integrity and basic human dignity are encompassed within security of the person, at least to the extent of freedom from criminal prohibitions which interfere with these".

Fundamental Justice

Deprivation of liberty or security of the person can occur only in accord with the principles of fundamental justice. Though it is clear that the notion of fundamental justice includes a concept of "procedural fairness", it is not clearly established that procedural fairness would include a right to counsel outside the context of criminal proceedings.

Against this background, we briefly consider the prospects for the development in the future of an expanded right to counsel through a more expansive interpretation of the scope of section 7. In a background paper prepared for the Review, Professor Des Rosiers argues convincingly that, even if one accepts the current state of the Supreme Court jurisprudence as to the outer reach of section 7, a number of proceedings outside of the strict criminal law context appear to come within the scope of section 7. In the mental health context, proceedings involving a committal or a non-consensual administration of treatment are potentially covered. Family matters where one spouse is confined to the home by violence or threats of violence may be included. Deportation proceedings and determinations of refugee status which raise the prospect of deportation could be covered. Disciplinary actions within prisons which involve a loss of liberty could be covered. The inclusion within section 7 of parental rights in the B. (R. ) decision suggests that child protection proceedings would be covered. Recognition of the security-of-the-person interests of witnesses suggests that at least an arguable claim for a right to counsel might be made where security is put in issue outside the criminal context. Further, if it is correct to conclude that the possibility of contempt-of -court charges is sufficient to engage section 7, it is arguable that, in the family law context, custody and access disputes would also be within the reach of section 7. It is another matter, of course, whether "fundamental justice" will be considered to require the presence of counsel in complex cases in each of these contexts. Nonetheless, the potential for the extension of section 7 doctrine in this direction appears to be quite real, especially if, as Professor Des Rosiers suggests, the courts were to combine their interpretation of the section 7 interests with a sensitivity to equality issues, a matter to which we now turn.

THE RIGHT TO EQUALITY UNDER SECTION 15

The equality rights secured by section 15 of the Charter have not yet been applied by the Courts in the context of legal aid issues. Nonetheless, there appear to be at least three possible lines of argument that could be pursued by individuals seeking to enforce a constitutional right to legal aid. First, it might be argued that distinctions in the level of legal aid resources available to different types of cases which have a differential impact on different groups might constitute discrimination on a prohibited ground under section 15. For example, it might be argued that giving priority to criminal law matters rather than family law matters might have the indirect effect of discrimination on grounds of gender. Similarly if, for example, funding with respect to legal aid relating to mental health issues were severely curtailed or withdrawn, discrimination on the basis of a disability might be argued. Other contexts in which this kind of equality challenge against a legal aid scheme could be mounted can easily be imagined. A second possibility would be to argue that sections 7 and 15 should be read together to develop an approach to security and liberty interests which respects equality guarantees. This could provide a basis for a more extended application of section 7 outside the criminal law context.

Third, and more generally, a constitutional attack on an allegedly inadequate legal aid scheme might be mounted on the basis that the justice system itself is discriminatory on the basis of an analogous ground, that is, poverty. It must be noted, however, that the suggestion that poverty constitutes an analogous ground for the purpose of section 15 analysis has not enjoyed success to date.

DEFENDING LEGAL AID SCHEMES UNDER SECTION 1

Assuming that a denial of access to state-funded legal aid in a particular context were to be held to constitute a violation of any of sections 7, 10, 11(d), or 15 of the Charter, the burden would then fall upon the government in question to establish that the invasion of the Charter right falls within the category of "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society" under section 1 of the Charter. If this can be established, of course, the decision or measure in question will not constitute a Charter violation. The test for establishing a section 1 justification is well established in the jurisprudence. The government must establish:

(1) that the impugned law addresses a pressing and substantial objective of sufficient importance to warrant overriding a constitutionally protected right and,
(2) that the means chosen to attain the objectives of the legislation must be proportional or appropriate to the ends, the so-called proportionality test.

Although it is unlikely that courts would hold that a government objective of reducing expenditures on legal aid is illegitimate, it is nonetheless the case that the proportionality test would provide the courts with some room to substitute their views for those of the legal aid authorities, at least in terms of their chosen priorities. Having said this, however, we should note that the courts have generally been reluctant, in the right to counsel Charter jurisprudence, to impose mandatory obligations on the state to spend legal aid resources in a particular way. Indeed, in R. v. Prosper, Madam Justice L'Heureux-Dubé stated that "the scope of services available through Legal Aid is generally not, in my opinion, for the courts to decide. The proper allocation of state resources is a matter for the legislature". On the other hand, it is not at all clear that courts would refrain from intervening and finding unconstitutionality if confronted with what appeared to be a plainly discriminatory feature of a legal aid scheme or a level of service that was considered to be so inadequate that the judiciary could not preside over fair trials.

CONCLUSION

The current state of right-to-counsel Charter jurisprudence, then, appears to impose modest but significant constraints on the design of provincial legal aid schemes. It seems clear that the courts will require funded counsel, at a minimum, in serious and complex cases in the sphere of criminal law where the accused lacks the personal skills to act for him- or herself. There is also some as-yet-unrealized potential for the development of further constitutional doctrine that could be applicable to the design of legal aid schemes. The principal area of potential growth resides in section 7. On the basis even of current interpretations of the notions of "liberty" and "security of the person", it would appear that section 7 could be considered to be applicable in a variety of contexts beyond the criminal law field. Further, a more expansive interpretation of section 7 might be linked to an equality analysis under section 15 to constrain the ability of a legal aid plan to devise coverage which can have the direct or indirect effect of discriminating against a group identified by either a prohibited or an analogous ground of discrimination pursuant to section 15.

It is, of course, difficult to predict the future course of jurisprudence, especially on matters of this kind. For our purposes, however, it is sufficient to conclude, as we do, that the potential for a more expansive scrutiny of the design of legal aid schemes under Charter jurisprudence of this kind appears to be very real and constitutes a consideration that should be kept in mind by those involved in designing legal aid programs. A legal aid scheme focused exclusively on criminal law cases, for example, is not likely to survive constitutional scrutiny.

(i) STATUTORY RIGHTS TO COUNSEL

Provinces are obliged by law to provide publicly funded legal assistance under two pieces of federal legislation, the Young Offenders Act and several sections of the Criminal Code.

The Young Offenders Act

Section 11(4) of the Young Offenders Act establishes a clear entitlement to publicly funded legal assistance for youths charged with offences under that legislation. The provision which requires that such assistance be made available on a mandatory basis, once requested, reads as follows:

11.-(4) Where a young person at his trial or at a hearing or review referred to in subsection (3) wishes to obtain counsel but is unable to do so, the youth court ...
(a) shall, where there is a legal aid or an assistance program available in the province where the hearing, trial or review is held, refer the young person to that program for the appointment of counsel; or
(b) where no legal aid or assistance program is available or the young person is unable to obtain counsel through such a program, may, and on the request of the young person shall, direct that the young person be represented by counsel.
(5) Where a direction is made under paragraph (4)(b) in respect of a young person, the Attorney General of the province in which the direction is made shall appoint counsel, or cause counsel to be appointed, to represent the young person.

In essence, then, the Act stipulates that a young person seeking counsel be referred to the provincial legal aid program and, where legal aid is unavailable, counsel shall be provided at provincial public expense on a mandatory basis if the youth requests counsel and, in the absence of a request, at the discretion of the trial judge. Although the statute directs that the Attorney General provide and, implicitly, pay for counsel, the typical arrangement, as in Ontario, is that the counsel is paid by the Legal Aid Plan at legal aid rates. The ability of the Plan to deny a young person a legal aid certificate in Ontario is thus more theoretical than real. Moreover, it is accepted that the trial judge has no discretion to inquire into the means of the youth or the parents in question to fund representation, since a judge has no discretion to withhold an order directing representation once it has been requested.

The service coverage afforded by the Act is broadly conceived in the sense that, according to section 11(1), it applies to "every stage of the proceedings". Further, unlike the right-to-counsel jurisprudence concerning adults, publicly funded representation for young persons is not limited to cases which are "serious and complex". Although the practice in Ontario has been to provide young persons who are granted certificates their choice of counsel, the Act does not so require. The Act would not preclude, therefore, the establishment of a specialist panel to deal with youth cases, nor, presumably, a Staff Office or an assigned counsel system.

Criminal Code

The provisions of the Criminal Code dealing with accused persons who suffer from a mental disorder contain two sections which establish a right to counsel. The first, section 672.24, provides that the Court shall order representation for an accused in any case where the Court "has reasonable grounds to believe that an accused is unfit to stand trial". The second, section 672.5(8), provides that a court or a review board conducting a disposition hearing shall assign counsel to act for any otherwise unrepresented accused "(a) who has been found unfit to stand trial; or (b) wherever the interests of justice so require. "Initially, both of these provisions were silent with respect to the burden of payment for the services of counsel. Recent statutory amendments, however, have introduced a scheme similar to that in the Young Offenders Act. If legal aid is unavailable to the accused, counsel is to be paid by the Attorney General of the province.

Three sections of the Criminal Code confer a discretion on the judiciary to appoint counsel on appeals to a provincial court of appeal (section 684) or to the Supreme Court of Canada (section 694. 1), and on summary conviction appeals (section 839) where it is "in the interests of justice" that the accused have legal assistance and the accused lacks the resources to obtain assistance. If the accused is denied assistance by the provincial legal aid program, counsel is to be paid by the Attorney General. In exercising these discretionary powers, the Courts have examined the same range of considerations relevant to the ordering of counsel at trial: the financial circumstances of the accused, the accused's lack of knowledge or skills, the complexity of the case, and the risk of incarceration.

Conclusion

An examination of the statutory and constitutional requirements for publicly funded representation thus reveals that there are significant legal constraints within which the province must design its legal aid system. The clearest of these constraints, are, however, not likely to be a source of a difficulty. The province is unlikely to wish to deny representation to accused persons in serious and complex criminal cases, or to young offenders or people suffering from mental disorders in the categories of cases covered by the provisions of the Criminal Code. On the other hand, the potential for more expansive treatment of the right to counsel under sections 7 and 15 of the Charter of Rights and Freedoms suggests that it would be unwise for a province to ignore the need for coverage in various legal domains other than criminal law and thus run the risk of designing legal aid schemes in a manner which may be found unconstitutional.

PRIORITY-SETTING IN ONTARIO: THE RECENT EXPERIENCE

Priority-setting in the Ontario legal aid system takes place in two different contexts. With respect to the certificate side of the system, priorities are set by the Legal Aid Committee subject to the approval of the Law Society and its governors. Within the clinic system, priorities are set within, broadly speaking, the "poverty law" envelope at the local-clinic level. Each of the clinics has a community board which typically engages in priority-setting activities on a regular basis. Although we have not studied priority-setting activity in detail in either context, our impression of the recent experience is set out below.

THE CERTIFICATE SIDE OF THE SYSTEM

The certificate side of the system is administered by the Plan under the direction of the Legal Aid Committee. As we have explained elsewhere, the Plan provides a range of services, of which by far the most dominant form is the provision of services by private practitioners on the basis of certificates issued by the Plan. In order to adjust to the funding cap imposed by the Memorandum of Agreement (MOU) entered into with the government in 1994, the Plan imposed a series of service cuts in 1994, 1995, and 1996. The dramatic nature of the cumulative affect of these cuts is encapsulated by one statistic. The Plan currently has budgeted for each of 1996/97 and 1997/98 the issuance of 80,000 certificates. This represents a 150,000 reduction from the 231,383 certificates issued in 1992/93. In order to cope with such a dramatic reduction in the scope of the certificate operations, the Plan imposed, in three stages, a series of service cuts that were intended to reduce very substantially the Plan's commitment to legal aid services in the non-family civil law context and then to distribute the remaining majority of the necessary reductions more or less evenly across the fields of criminal law, family law, and refugee and immigration law.

In order to accomplish reductions in these three areas, the Plan developed, after considerable consultation, a prioritization of services offered in these fields in order to enable the Plan to focus its certificate issuance on the highest-priority cases. The nature of these service cuts is described elsewhere in this report. For present purposes, a brief discussion of the kinds of priorities that were established will suffice.

In criminal law, for example, prior to 1994, legal aid was available for people charged with both indictable offences and those charged with summary conviction offences such as impaired driving or theft under $1,000 (now $5,000). Beginning in 1994, however, coverage was restricted to cases where the accused faced upon conviction a likelihood of incarceration or loss of employment. From April 1996, coverage was further reduced, with certificates being issued only in cases where the accused faced a likelihood of incarceration.

A similar, although rather more complex, picture emerged in family law. The scheme that was developed for family law identified five levels of priority for family law cases. Given highest priority were those which involved "protecting the safety of a spouse or child who was at risk, or protecting an established parent/child bond (custody/child welfare)". The second priority included custody variations where there is no emergency, initial applications for access to maintain and establish a parent-child bond, child or spousal support when custody is changed, and so on. The third priority included such matters as support applications and variations involving recipients of public assistance, and custody cases involving mobility rights and relocation where the parent/child bond is not threatened. The fourth priority covered minor custody and access cases, and child protection cases where the issue is access by family members offering to care for the child, and so on. The fifth priority included, for example, adjustments to access by grandparents and other relatives who are not primary caregivers. It was initially assumed that, in 1996/97 the Plan would be able to grant 29,000 family law certificates, and thus be able to provide coverage for matters deemed to have first and second priority. In the event, however, further reductions became necessary, and service delivery was focused exclusively on matters given first priority. The drastic effect of the cutbacks on service delivery in family law led to a recent decision to devote more resources to family law and to attempt to achieve at least some coverage of second-priority matters from April 1, 1997 forward.

In the immigration and refugee area, although the elimination of certificates in immigration matters achieved some savings, the principal reductions in expenditures resulted from a decrease in the legal aid tariff for refugee matters from 29.5 to 16.0 hours, from the virtual elimination of discretionary payments above the tariff, and from a decline in the number of certificates requested as case volumes decreased. Adjustments to the legal aid tariff were also made in the criminal law and family law certificates.

Although some other types of changes were made in the effort to increase the efficiency of the Plan, it would appear that the predominant methods for achieving savings were to reduce the issuance of certificates to cases of perceived highest priority and to reduce, at the same time, the tariff paid on such certificates. In criminal law, priority-setting focused exclusively on the "negative liberty" test. It could be argued that "negative liberty" interests -cases involving domestic violence and child protection cases-albeit coupled with a concern for the welfare of children, dominated priority-setting in family law. Although, at the same time, some expansion was made in the availability of duty counsel, the predominant mode of service cut appears to have been a simple on/off switch. Individuals who would previously have received certificates would typically receive no service or, in some cases, brief access to duty counsel.

THE CLINIC SYSTEM

The clinic system has long operated under the kind of capped funding which was agreed to under the MOU for the certificate side of the system. As a result, the clinics have considerable experience with priority-setting. They have been working with capped budgets on an annual basis throughout their history and have had to adjust their service level and service mix to accommodate fluctuating demand.

As already indicated, the priority-setting activity is undertaken by the local community clinic boards. The process was described in the following terms in a submission to the Review made by a group of community legal clinics:

Boards, with the assistance of staff, meet at least annually to review service priorities. As part of the funding process, the year's activities are reviewed and evaluated in relation to the prior year's priorities, and new priorities are set for the prospective year. Community needs may be assessed and predicted based on a review of demand for services, assessment of changes to legislation or policies, analysis of day to day operations, consultation in the community or knowledge of board members and staff. In addition, informal reviews often occur as current information, including case and summary advice statistics, is available at monthly board meetings.

Boards have generally provided for individual representation on the basis of how directly and immediately the physical well-being of the client, and his or her family, might be affected. This is reflected in the fact that the bulk of the formal advocacy provided by general service clinics in Ontario is in the area of income maintenance and landlord and tenant matters. (In 1996, 56% of new files opened were in the area of income maintenance and landlord/tenant law). The consequences of failing to provide clients with direct service in these areas can be fundamental and immediate - hunger and homelessness. Cases accorded immediate attention include families facing eviction, or obtaining the release of a welfare cheque which is needed to pay rent and buy food. Over the years, therefore, providing direct representation in these kinds of matters has usually been paramount while other needs have had to be addressed in other ways.

Other factors considered by boards in setting priorities may be whether there are other agencies or resources which can meet the need as well, or better than, the clinic or whether the client may be able to meet the need him or herself. This illustrates how important it is that these kinds of decisions are made at the local level by community members who have knowledge of other resources in the community. In some areas, for instance, clinics no longer provide direct representation in Workers' Compensation matters because an Office of the Worker Adviser in their community offers quality specialized representation in such matter. On the other hand some clinics in remote areas of Northern Ontario must meet a much broader range of legal needs than their urban counterparts simply because there are no alternative service providers.

It is not possible to set priorities which will be valid for all communities at all times. Clinics meet the "poverty law" needs of their client communities by observing the following principles:

  • Priorities are set at the local level by members of the community with knowledge of the community's unique needs and characteristics.
  • Priority-setting is a continuous process which responds to changing needs and characteristics of the community-there cannot be a fixed or absolute set of priorities.
  • The process of priority-setting must include a consideration of the short and long-term consequences for all persons affected, directly and indirectly.

TOWARDS A NEW MODEL FOR PRIORITY-SETTING

Priority-setting for the legal aid system in Ontario under a capped budget will no doubt continue to be a major preoccupation of those charged with management of the system. Although it would be presumptuous of us to suggest that we have mastered the art of priority-setting in legal aid, or identified the ideal recipe for such a process, we do think that some lessons can be drawn from the foregoing analysis and from recent experience in Ontario. In brief, we would suggest that priority-setting for the entire legal aid system should involve, in the future, something of a marriage between the approaches taken in recent years by the two sides of the system. We draw attention to eight themes below.

The Importance of Consultation and Environmental Scanning of Needs. Both the certificate and the clinic side have relied to some extent on consultation processes in their priority-setting. As well, experience in the clinic system demonstrates the importance of attempting to survey the range of client needs through a variety of techniques. Indeed, as we suggested earlier, it may well be that the larger legal aid system can more effectively utilize the clinic system as a window on evolving trends in client needs. No doubt, legal aid administrators and other service providers can also assist in gathering data on needs. In our view, however, the overall legal aid system requires a more systematic and consultative approach to needs assessment and must establish appropriate institutional mechanisms for accomplishing that objective.

The Importance of Responding to a Broad Range of Needs. In a previous chapter we illustrated the broad range of needs for legal services experienced by the traditional consumers of legal aid services. The analysis in this chapter lends support to the view that it is difficult to exclude broad areas of service from the legal aid system on a principled basis. In a legal aid system with capped funding, it is no doubt necessary to target resources to the most deserving cases. Those cases, however, appear to be sprinkled across the domains of law traditionally served by the certificate and clinic sides of the system. The potential for more expansive constitutional treatment of the right to counsel may serve to reinforce this view but need not be considered the driving force for broad coverage.

The Need for Strategic Oversight at the System-Wide Level Coupled with Responsiveness to Local Conditions. The experience of the certificate side illustrates the importance of broad central oversight supported by an adequate information base. Experience within the clinic side suggests the importance of local input, responsiveness to local conditions, and the need to be able to interact with a broad range of service providers within the local community. In combination, this experience suggests that central priority-setting for service delivery should occur at the system-wide level, with some ability to determine the precise service mix at the local level, especially within the field of "poverty law".

The Limitations of the "Negative Liberty" Test in Setting Service Priorities. The analysis in this chapter suggests that a number of difficulties will arise if too much emphasis is placed on the "negative liberty" test. We believe that a number of these difficulties are manifest in the recent experience with priority-setting on the certificate side of the plan. More particularly, in both criminal law and family law, the focus on "negative liberty" has left a number of deserving cases with little or no service at all.

The Importance of Integrating Delivery-Model Issues within the Priority-Setting Process. The clinic system has more experience than the certificate side with the integration of delivery-model issues in priority-setting exercises. This is not to suggest that the certificate side has been completely resistant to such considerations. Service delivery in family law, for example, has migrated to some extent from certificates to duty counsel. Nonetheless, the clinic side of the system has been somewhat more creative in developing a range of services and in recognizing that access to the law need not mean, in every case, access to a lawyer or access to full advocacy services. Adopting this view reduces the need to rely upon the "on/off switch" approach and permits an attempt to assess and ameliorate the impact of failure to provide services by developing a broader range of service delivery models. In determining priorities, then, the legal aid system should consider the broad range of possible delivery models in an attempt to adjust type of service to the intensity of a particular need. Priority-setting should thus engage the analytical issues set out in our discussion of delivery models in chapter 7 of this report.

In expanding its capacity to provide informational services of various kinds, however, the legal aid system needs to be astute to avoid becoming a dumping-ground for informational costs that are more appropriately provided by other partners in the justice system, such as the courts-administration function of the Ministry of the Attorney General. Recent experience suggests that there is a risk that reduction in basic service at the courthouse, for example, will impose burdens on duty counsel and on the clinic system to provide information that could more efficiently and appropriately be provided by courthouse staff.

The Importance of Focusing the Priority-Setting Debate on Client Impact. In priority-setting debates with respect to both the provision and the withdrawal of services, we envisage that a combination of the approaches of the certificate side and the clinic side may also be fruitful. The certificate side of the system has focused on trying to identify the most important types of cases at which to target certificate services. The rank-ordering attempted of types of family law cases, for example, is illuminating of client needs. Nonetheless, it represents an attempt to generalize about case types with consequent risk that it is not sufficiently sensitive to the circumstances of the parties to those cases. Matters such as the precariousness of a particular individual's living circumstances, literacy or communication skills, disability and so on, should be relevant factors in the allocation of limited legal aid resources. In order to meet a broad range of service needs in a capped system, focus on the potential consequences for the individual of failure to provide services seems essential.

The Importance of Using Resources Strategically to Facilitate Access to Law. In some contexts, the most effective means to promote access to law may be to attack a problem systemically. This might involve seeking a change in the behaviour of public officials interpreting their statutory policy or mandate. It might involve seeking change or clarification of a law through discussions with government or litigation strategies such as test cases or class actions. As we indicated earlier, it may well be that the best solution to the burdens of legal assistance imposed by highly complex laws is the simplification of those laws. In setting priorities for service delivery, then, attention must be paid to the possibilities afforded by the strategic use of resources to achieve a maximum impact in responding to the legal needs of low-income Ontarians. The need for such an approach is intensified by the transition to capped funding.

The Importance of Priority-Setting Being Subject to Revision in Light of Experience in an Evolving Social and Legal Environment. As we have suggested above, it is our view that priority-setting must retain an element of flexibility and must be subject to revision in the light of experience. Priorities will need to be adjusted as the legal aid authority evaluates the evolving legal needs of low-income Ontarians, and the success or lack of success of particular delivery models in meeting particular needs. Priorities will also need be adjusted against the background of changing social and economic conditions and, of course, changes in the legal system giving rise to client needs.

RECOMMENDATIONS

In a capped legal aid system, resources should be allocated in accordance with priorities set in light of the following considerations:

  • the importance of consultation and environmental scanning of needs;
  • the importance of responding to a broad range of needs;
  • the need for strategic oversight at the system-wide level, coupled with responsiveness to local conditions;
  • the limitations of the "negative liberty" (or risk of incarceration) test in priority-setting;
  • the importance of integrating delivery-model issues into the priority-setting process;
  • the importance of focusing the priority-setting debate on client impact; and
  • the importance of priority-setting being subject to revision in light of experience in an evolving social and legal environment.