Chapter 9: Criminal Law Legal Aid Services

Basic principles have evolved in meeting the responsibility of providing effective legal representation to low-income Ontarians who are involved in the criminal justice system. These principles, though not exclusive to criminal law services, range from ensuring that high-quality legal services are available to everyone, regardless of income; that the delivery system is responsive to and able to address priorities across the broad spectrum, and often distinct nature, of the needs of its clientele; that the level of services provided is consistent across the province; that the system is flexible and responsive to changing justice-related practices and is able to assist in changing those practices; that it is funded adequately; and that funds are spent wisely.

This chapter briefly describes the current context in Ontario in which criminal law legal services are delivered in relation to case coverage, delivery-model mix, and client needs. It then goes on to outline key issues relating to the delivery of those services. Building on previous discussions in this report supporting the need to introduce more delivery-model diversity into our system and the need to assess needs, set priorities, and ensure quality control and responsiveness, this chapter proposes a model for the delivery of criminal law legal aid services that attempts to achieve the best balance of the competing demands on the system. It then goes on to discuss briefly the integrated relationship between the delivery of criminal law legal aid services and Crown practices and procedures. The chapter concludes with a list of recommendations relating to criminal law legal aid services.

ONTARIO CONTEXT

CASE COVERAGE

In fiscal year 1996/97, 73,464 legal aid certificates were issued for criminal cases. As the Plan dealt with only the most serious criminal law matters, the average cost of a completed criminal case rose 8 percent from $1,240 in 1994-95 to $1,338 in 1995/96. The total budget for criminal legal aid certificates for that fiscal year was approximately $110.6 million.

Legal aid represents approximately one-third of persons charged with criminal offences, although it provides limited duty counsel services to a larger proportion at the early stages of proceedings.

Adult

At present, certificates are granted in criminal law matters only where the accused is likely to face incarceration upon conviction. It is not a ground for issuing a certificate that a criminal record having serious implications for a person's future may be created; or that there is a likelihood of the accused losing his or her means of earning a livelihood; or the fact that an individual lacks the capacity to deal with the evidence, issues or procedures without representation.

As a result of tariff restructuring, all pre-set, block fees for legal services have been eliminated. Lawyers are paid on an hourly basis for their work, with caps imposed on all services rendered. Separate fees for pre-trial and bail meetings with Crown attorneys have been eliminated, and remuneration for travel time has been restricted. The tariff has not been increased in ten years, and discretionary increases are limited to exceptional cases and cannot in total exceed 5 percent (2 percent with respect to summary offences) of the overall budget for the fees for a particular type of legal matter. As well, mandatory case management has been instituted for complex and serious criminal matters. This practice requires counsel to meet with the local Area Director or Provincial Director to establish a budget for the defence.

Young Offenders

Legal aid costs in youth court matters represent between 12 and 15 percent of all criminal law legal aid costs. While the same tariff charges noted above apply in this area as well, eligibility is governed by section 11 of the Young Offenders Act. The wording of this section makes legal aid coverage mandatory when ordered by a youth court judge. In turn, the court has no discretion to refuse an application for coverage to the court, properly made, regardless of the nature of the charge or the financial circumstances of the applicant or his or her family.

SERVICE DELIVERY

The vast majority of criminal law legal aid services in Ontario are delivered through the judicare model. As discussed earlier, this model provides eligible accused persons with a legal aid certificate that can be taken to any lawyer of the client's choice who is willing to act on the basis of legal aid for that particular case. The lawyer is remunerated according to the pre-set (and below-market) tariff rate, and is subject to a cap on the number of hours that may be billed.

In addition to the judicare services of the private bar, duty counsel are currently available to perform a limited range of functions in the provincial courts, including: advising accused persons of their rights and their options; speaking to sentence if the accused wishes to plead guilty; negotiating for withdrawal of charges, adjournments, alternative measures, or diversion; and conducting bail hearings. Except in a few pilot projects, there is at present no financial-eligibility testing for the use of duty counsel services, since those services generally require only a very small amount of counsel's time and greatly facilitate the administration of the courts.

In 1995-96, approximately 372,000 people were provided services by criminal law duty counsel, both salaried and private bar fee-for-service, in adult and young offender matters. It is estimated that the cost of duty counsel amounts to less than $40 for each person assisted by the private bar, and just over $10 per person assisted by salaried duty counsel in the criminal courts and through the Hotline Service.

The delivery of legal service under the Young Offenders Act is, as are adult criminal law matters, premised upon a judicare model-primary reliance on the private bar, with some duty counsel services. In addition, some general-service community legal clinics, student legal aid societies, and community organizations assist youth who come into conflict with the justice system. A specialized community legal clinic called Justice for Children and Youth, in addition to its work on other issues, provides some services in relation to systemic issues arising in the laws, policies, and practices relating to youth and children.

CLIENT NEEDS

As the submission of the Criminal Lawyers' Association to this Review suggests, persons charged with a criminal offence are in an unusual position. They are unwilling participants in state-initiated proceedings which give rise to a constitutional right to counsel for accused persons in complex matters. The prosecution is always represented by a lawyer specializing in criminal law and assisted by the expertise and resources of the police, and by expert witnesses as necessary. As noted by the Ontario Judges' Association in its brief to the Review: "In the criminal justice system, there is an inevitable imbalance between the power and resources of the Crown, and the power and resources of an individual accused. Legal aid is intended to bring some balance to the field".

Moreover, criminal proceedings must progress without unreasonable delay or run the risk of being stayed by the courts. Cases are becoming increasingly complex, and professional standards require that lawyers assert all relevant defences and bring Charter of Rights and Freedoms motions where appropriate.

IMPACT OF RECENT REDUCTIONS IN COVERAGE

Against this backdrop of increasing case complexity and the decrease of legal aid resources in the criminal justice system, there has been a dramatic decline in the number of criminal accused who are granted certificates. The Ontario Judges' Association and the Criminal Lawyers' Association have expressed concern that an increasing number of accused persons are appearing in court unrepresented. Other groups, including African-Canadian and Aboriginal organizations, have said that these and other changes create difficulties in securing early release. Many submissions to the Review identified the need for more legal information to be available to accused persons so they can understand their legal rights, the consequences of the proceedings, and, more generally, the stages of the criminal process in order to make informed choices. Lack of information about legal aid in the language of the client is a particular concern among linguistic-minority communities.

The criminal bar, through its association, has expressed serious concern about the impact of the reduction of legal aid coverage. In their view, there is reason to be concerned that innocent people are pleading guilty to matters where they have a valid defence because they do not have enough funds to pay for a lawyer. They plead guilty, often, simply to "get it over with". Lawyers have also indicated that, while clients are making greater efforts to obtain private retainers (especially with respect to bail), this is not alleviating the situation to any significant extent.

Duty counsel lawyers have reported a large increase in their case load, a growth in complexity of the matters that they are now covering, and the concerns they have about the inadequate attention they are able to provide to clients under very rushed circumstances. As well, duty counsel are having to respond to the increase in time now spent doing non-legal work, such as calling sureties and setting up diversion arrangements, without the availability of sufficient additional resources.

Student-based community clinics report that they have seen an increase in the number of applicants seeking assistance in criminal matters since the reduction of services by the Plan. For example, Downtown Legal Services at the University of Toronto reports that its criminal files have grown from 30 to 56 percent of its case load.

This Review also learned from its province-wide public consultations that the impact of the reduction in criminal law services has resulted in regional differences in the level of legal representation available. Some areas report a higher reliance on duty counsel or student legal aid clinics, and others report a higher number of unrepresented accused.

Generally, we perceived a strong consensus on the need for criminal legal services to be accessible and reflective of the diverse needs of the clients. The legal aid system needs to recognize the importance of taking practical, positive steps to ensure access for particular groups such as women, Aboriginal people, the physically and mentally disabled, youth, immigrants, persons facing a language barrier, and racial minorities. Failure to provide such access to legal services threatens not only the appearance of justice, but justice itself.

ISSUES RELATING TO THE DELIVERY OF CRIMINAL LEGAL AID SERVICES

Any delivery model for criminal legal aid services must take into account the many features that are unique to criminal litigation. The most important of these is the role and resources of the state in initiating and conducting prosecutions. This alone dictates that the delivery of legal aid be independent of government interference and of consistently high quality. A brief outline of some of the major issues in the criminal law area considered during our deliberations is presented below.

INDEPENDENCE OF COUNSEL

It is a cornerstone of our justice system that the defence of an accused person should in no way be, or be perceived to be, compromised by the authority that manages the prosecution. To this end, the private bar has traditionally provided a bulwark in maintaining the independence of the legal aid system. Through case representation, the provision of advice on policy- and priority-setting, or law-reform litigation challenging unfair encroachments on the rights of individuals, the private bar is an important check on state actions. Nonetheless, this natural check on government action can be maintained and augmented by salaried counsel as long as appropriate steps are taken to ensure that the legal aid authority enjoys a high degree of independence from government.

CHOICE OF COUNSEL

Choice of counsel has been one of the distinguishing features of the Ontario legal aid system. The right to choose counsel gives the client the confidence to confide in and take advice from the lawyer, and adds to respect for the justice system. While choice may be important to some clients, and is supported by some lawyers and some economists, we do not feel that this is an absolute requirement of an effective and efficient system. The argument for choice of counsel rests on the assumption that clients are knowledgeable about their choices, that the lawyer chosen is in fact available to them, and that clients will choose wisely. In many cases, this is not so. Choice of counsel is often illusory. Clients often have no knowledge of the expertise of their chosen lawyer. They have neither the means nor the opportunity to determine the lawyer's competence, and assume that someone else (e.g., the Law Society or the Plan) has ensured a level of competence.

We are of the view that limitations on choice, with accompanying quality controls, can replace the imperfect system of client knowledge with reliable and qualified counsel, and that, particularly in less serious matters, the extra confidence in the system which may flow from choice is not of central importance. Where a case is of lesser complexity and severity, the need for choice of counsel appears less compelling since the issues are more straightforward and the sensitivity of the matter for the client is reduced. For cases that do not require extensive preparation, alternative methods of ensuring competent representation can be established, while confidence in the system and in counsel must be a goal of all methods of service delivery.

QUALITY ASSURANCE

Whatever the extent of client choices available, enhanced quality-assurance mechanisms must be in place for all lawyers so that clients will be able to resolve their cases with the confidence that their legal advocate is well qualified in the kind of case at issue and is skillfully representing their best interests.

In order that legal services of a consistently high quality are provided, performance standards must be established and vigorously monitored. In the judicare context, this would be promoted through requirements for controlled panel membership, adequate tariffs and preparation time, mentoring, mandatory continuing legal education, and access to research and other support services. With salaried staff, advanced methods common to an employment system can be put in place, such as supervision, performance evaluation, and educational and training programs.

Senior members of the bar (private and salaried) should play an important role in monitoring and updating these standards.

TARGETING RESOURCES ON NEED

As discussed earlier, one of the goals of a legal aid system ought to be the constant evaluation of the legal needs of the clients whom it is designed to serve. Needs cannot be judged exclusively by the abstract gravity of the charge. Matters such as the personal circumstances of the accused, the extent and complexity of the evidence, the legal points at issue, the nature of the evidence, the position being taken by the Crown, and the impact of the charge on the client and on others are all relevant when difficult decisions about priorities for scarce resources have to be made. Lawyers and other service providers at the local level, and head-office officials, should provide ongoing support for the system's attempts to fully appreciate and meet those needs. The ability to identify particular legal concerns of communities seeking justice within the criminal justice system must form part of a client-focused approach, as must the capacity to engage in strategic litigation or to generate law- reform proposals for the relevant levels of government.

With, on the one hand, a limited amount of resources and, on the other hand, numerous and legitimate claims on limited legal aid resources, a legal aid system must have the capacity to identify the degree of representation appropriate for each applicant and the appropriate means to provide the services. Without reference to the particular facts of a case or the individual circumstances of the accused, hard- and fast- rules are likely to undermine a fair distribution of the limited resources. By contrast, a legal aid system that provides for early case assessment as to complexity and the required level of legal attention that is appropriate goes a long way towards providing an equitable system that can fairly set case-coverage priorities based on the financial, legal, and personal situation of accused persons.

COST-EFFECTIVENESS OF DELIVERY MODELS

Proponents of the judicare model argue that the expanded use of salaried staff in the legal aid context will be more costly than the current system. As discussed in chapter 7, numerous variables, such as the level of the tariff, or the salary and case load of staff, result in this debate being less than conclusive. It is true that private counsel can choose to practise as frugally or extravagantly as they deem fit, and that they cover their own overhead. There can, however, be economies of scale in the shared resources of a Staff Office and localized expertise, and efficiencies in the planned and systematic use of non-lawyers in the preparation of a case. At the very least there are advantages to introducing a mix of legal aid delivery mechanisms to provide efficiency incentives to service providers.

SUPPORT SERVICE CAPACITY

Lawyers doing legal aid work should have support services relating to legal research, policy development, mentoring and advice, investigation, social work, client placement, and so on. This will ensure that lawyers are focusing their skills on legal matters and are not duplicating one another's work. It will also assist in maintaining a high standard of legal aid service for clients across the province.

APPEALS AND SYSTEMIC REFORM

The handling of criminal appeals and services for cases that raise systemic issues are important aspects of the legal aid system. They may result in procedural or substantive changes that secure individual rights or enhance system-wide efficiencies. Much of this work is legally complex and often relates to intricate Charter issues. Regardless of whether the lawyers delivering these services are salaried, on block contract, or part of the judicare panel, lawyers doing legal aid work should be providing effective representation of this nature.

PROPOSAL FOR A DELIVERY FRAMEWORK FOR CRIMINAL LEGAL AID SERVICES

We believe that the flexible and locally responsive model set out below provides a framework for the delivery of criminal legal aid services that will allow administrators of the legal aid program, service providers, and clients of the system to develop service- delivery options that can maximize the volume and impact of high-quality service within a variety of capped budgets. Simply stated, the model is designed to expand high-quality coverage in the most cost-effective manner.

This model proposes a flexible system that can be adjusted to meet competing demands. The level of funding of the system does not change the model. The structure allows the legal aid authority to draw the lines in the most efficient and effective way possible between those who do and those who do not receive particular types of services. If available resources change, the line can be fairly drawn in a different place as long as the priority- setting process we have discussed is respected. That said, any serious reductions in the current funding level will undermine the ability of the legal aid plan to address meaningfully the legal needs of many eligible accused persons and will also have a serious impact on the administration of the justice system.

FRAMEWORK

Taking into consideration the principles discussed in the previous chapters and the case for a high-quality and competitive approach for the delivery of legal services, the following proposal outlines a model that can identify and assess the legal needs of those unable to afford legal services and can meet those needs appropriately, given regional and other differences in client needs and the reality of living within a capped budget. In our proposal, we envisage at the local level three distinct, but linked, functions in the delivery of criminal law legal aid services: managed intake, assessment, and straightforward dispositions; service options for complex cases; and appellate advocacy.

Under our model, there would be an emphasis on managing the early intake and case-assessment phase of the system. While complex matters would be referred to counsel for intensive work, simpler matters will be handled quickly and effectively within a managed structure. The system would be client-centred. It would assess the needs of the individual client and not simply focus on the kind of case or on abstract priorities. The model supports and encourages efficiencies from other parts of the system in order to achieve cost savings while, at the same time, expanding coverage beyond the current level for the same cost. It recognizes the need to have services and decision-making reflect local needs and conditions. It provides Area Directors with the ability to supervise quality assurance and provide consistency in eligibility determinations, and it builds in a strong role, including an oversight function, for the local criminal bar.

This proposal assumes that the impact of early intake, assessment, and resolution of less complex matters will result in efficiencies that will allow for the appropriate allocation of resources to more individuals and to more complex legal matters. The model allows for scarce resources to be allocated according to client needs.

Grounded in managed intake and case assessment at the local level, this approach would also provide provincial- or regional-level support to local service providers through central resources such as researchers, case workers, sentencing experts, supervised paralegals, criminal investigators, and interpreters, especially where numbers do not warrant this range of services in local offices. It would also provide a quality-assurance mechanism; policy development; priority-setting; and law-reform capacity.

Phase One: Managed Intake, Assessment, and Straightforward Dispositions

The first stage of most criminal cases involves providing advice post-charge, at the time of arrest or summons or appearance notice, or speaking to bail at first appearance. At this stage, there is a need to start obtaining information both from the client and potential witnesses or sureties and from the Crown in order to assess the case and the client's circumstances. The client needs to be carefully interviewed within the first week so that the case can be assessed by the duty counsel office with a view to determining if there is evidence that needs to be preserved or witnesses who need to be interviewed quickly. Early Crown disclosure and screening are required to determine how the state is electing to proceed, whether it is amenable to diversion, whether bail will be contested, the strength and complexity of the Crown's case, the penalty being sought, and so on. Under our proposal, the emphasis at this point in the criminal process would be on identifying cases which do not require significant time or resources and resolving them quickly (e.g. through withdrawals, guilty pleas, and diversions). Those cases requiring more time, whether for investigation or the preparation of a sentencing plan, or anything more than a very short trial, would also be identified early and provided with access to appropriate services.

Overall, we envisage the managed approach to intake and assessment as providing enhanced services to clients, making court administration more efficient, and supporting the concept that legal aid is part of an integrated justice system, not only in terms of substantive and procedural law reform, but also in terms of ongoing reform to the proper functioning of the criminal justice system. The model will make effective use of non-lawyers (e.g., supervised paralegals to help with interviews or locate and advise potential sureties, specialists in finding and negotiating community placement options for accused persons seeking diversion or community service, trained investigators to follow leads and interview witnesses).

During the initial stage of the criminal process, the client may use the services of duty counsel (assisted by supervised paralegals) either by approaching them directly (as in the case of a bail hearing) or by referral from the intake office. Assistance could be obtained in the following areas:

  • a thorough interview and case assessment
  • provision of summary legal advice, and preservation of evidence
  • bail
  • adjournments and withdrawals
  • obtaining charge-screening forms and disclosure
  • entering into diversion programs (e.g., alternative measures, adult diversion, mental health diversion, Aboriginal diversion, youth diversion)
  • representation on guilty pleas and sentencing where this can be handled professionally with limited preparation
  • where appropriate, pre-trial conferences

There should be a duty counsel office in each courthouse. Duty counsel services could be carried out by salaried or fee-for-service lawyers. Where these services are not provided by salaried counsel, duty counsel should be scheduled for block periods of time in order to maximize the likelihood of case continuity and consistency in dealings with clients and with other legal aid staff and justice system personnel. We can imagine, in some locations, Area Directors retaining experienced private-bar counsel to take on two-week to one-month rotations through the duty counsel program. This option is particularly viable where there is no local Staff Office with which salaried duty counsel could be associated, as we are concerned that long-term duty counsel placements, with no additional career opportunities or insufficient supervision, may reduce the quality of representation, even if performance measures are put in place.

This managed intake approach could work particularly well with the proposals now being considered to move towards a system of "out-of-court intake" for criminal law matters. In this approach, between the first appearance and the date in which a trial starts or a plea is entered, lawyers could proceed by phone, fax, e-mail, or telephone conference in relation to pre-trial issues. Providing legal representation is essential to making this work; doing so economically with a minimum number of service providers can help make it affordable and accessible to all.

A cost-effective duty counsel system could also ensure representation at jails, from which it is now possible to require an accused to deal with bail hearings and trial matters that do not require the taking of evidence. Given the problems of comprehending legal proceedings from a remote location, exacerbated where language or disability or unfamiliarity with the system is an issue, such duty counsel services at the jails themselves may well be essential to justice being done in these new circumstances, and thus to the state's legitimate use of these measures.

Duty counsel may be supported by case workers, who would be able to assist in coordinating sureties and diversion, interviewing witnesses, providing general information, and appearing as an agent (if appropriate). For instance at the bail stage, a bail interview officer (as described in the Report of the Commission on Systemic Racism in the Ontario Criminal Justice System) could be hired by legal aid to meet and assist accused persons, witnesses, and persons who might give evidence or act as sureties for them, prior to their meeting with duty counsel. At the diversion stage, case workers who are well qualified in preparing community placement plans could assist duty counsel by linking adult and youth offenders to community resources and negotiating placements. The use of such non-lawyer resources would meet the needs of clients and relieve some of the strain on the duty counsel system by addressing issues which are not purely legal. This would also assist the court to make more informed dispositions with respect to bail and sentencing.

With the exception of trials, many of these preliminary services can be provided without the expense of financial-eligibility assessment. Having duty counsel (assisted by non-lawyer case workers) manage the early stages of criminal proceedings saves legal aid costs and moves the accused person through the system more quickly because there will be less delay in receipt of legal aid and, thus, fewer adjournments, and because more can be accomplished out of court or by negotiations with the Crown. However, we believe that the Area Director and his or her staff should, at their discretion, be able to assess people at any point in the process where there is good reason to believe that the person can afford to retain private counsel, and legal aid would spend more money on the client than it costs to do the actual assessment. It is anticipated that in most cases this will arise at the point where there has been Crown disclosure and charge screening such that a determination of the complexity of the legal issues can be made, but it could occur earlier (when, for example, a complex bail hearing is contemplated).

At the stage at which financial eligibility is tested and established, the Area Director (perhaps on the advice of duty counsel) will assess the client's case to evaluate how much preparation will be required, how complex the matter will be (e.g., number of witnesses, use of expert evidence, available defences, legal issues, number of accused), and, in light of that and other factors (such as the expertise and case load level of duty counsel, and conflict of interests), will determine whether the case is one that can be prepared within the time available for duty counsel or whether the client should be provided with a choice of service delivery.

We recommend that the private bar should be involved in setting guidelines for when a case ought to be referred out of the duty counsel office. These guidelines are important because we are suggesting a model that replaces the criteria of risk of incarceration by a more case-specific analysis. In so doing, we hope to extend legal representation to more accused persons than at present, based, in part, on the assumption that not all cases that have a risk of imprisonment are legally or factually complex, nor necessarily require an extensive time investment by a lawyer. As a result, the legal aid authority will be handling a more diverse mix of cases through the duty counsel program (supported by non-lawyers) which will save administrative and legal costs, reduce court delay, and support more clients more effectively.

The bar should also work with the Area Director to monitor and assist duty counsel to ensure that clients are obtaining quality legal representation through duty counsel and that individual lawyers' case loads are appropriate. Traditionally, the private bar has provided invaluable assistance to the duty counsel program throughout the province. This model envisions continued close cooperation between the private bar and the legal aid administrator in the local area.

Importantly, at any point during the intake management of a case, exceptional matters could be assessed to be of such obvious complexity that they need not proceed further through the intake and assessment phase, but rather the client (once found financially eligible) should have immediate choice of counsel. These exceptional cases will be identified by the Area Director, duty counsel, or other intake staff, and will then be immediately referred to the client's choice of service provider.

Phase Two: Increasing the Service Options for Complex Cases

Against the background of the discussion in chapter 7 concerning the importance of competition between delivery models (especially in relation to complex cases) and the desire to maintain a vibrant private criminal bar, those matters that have been referred to Phase Two of the proposed model will trigger the ability of the client to choose his or her own counsel.

The range of service-delivery options will depend on what can be made available locally. In all locations, the option of retaining a lawyer from the private bar will be available if the bar is willing to provide such services. Some parts of the province will be able to offer other choices, depending on client needs and local feasibility. Other choices available to the accused may include counsel from a local Staff Office or counsel working on a block contract.

Thus, in smaller communities, it is possible that the system will consist only of part-time staff to discharge the intake/assessment function (with advice from a larger office, as necessary), with the rest of its services provided through contract duty counsel and judicare. In a mid-sized community, there would be a full-time staff to manage the intake system, possibly staff as well as contract duty counsel, plus judicare, and, possibly, a Staff Office. In larger centres, we recommend a fully managed intake system, staff duty counsel, a Staff Office for trials and appeals, as well as the continued availability of judicare. Block contracts may be an option in some areas where they would improve access to local expertise.

Judicare

Judicare would remain much the same as it is now, but we recommend that there be more extensive use of case-management plans, rigorous standards for admission to a panel, more supervision and quality control, and access to more staff resources (e.g. investigation, translation, and case-work services from a local Staff Office; research and training materials from the provincial head office).

Staff Offices

Staff Offices, where available, would provide an alternative method for the delivery of legal aid services. Consistent with our view of locally developed service delivery, the make-up of a Staff Office should reflect the particular needs of the community it is serving. Generally, we envisage the office being staffed with a range of persons to support the work of staff counsel and duty counsel, which could include case workers, bail officers, social workers, community workers, criminal investigators, and translators. The office should be in an accessible location, in terms of both the court and the community it serves. In the largest centres, satellite offices would be used to improve access through a small intake, assessment, and advice staff complement, relying on the resources of the main, local Staff Office for other services.

The Staff Office should be linked to the operations of the duty counsel program, both in terms of career-development opportunities for lawyers and non-legal case workers, and in terms of the sharing of legal support services. It is an important component of our model that duty counsel be provided with career opportunities outside of the duty counsel program. Movement within the system will avoid career stagnation and will allow duty counsel to bring important legal experience and negotiation skills to the duty counsel role.

Lawyers employed by the Staff Office could perform a range of functions, including both trial and appellate advocacy (see below, Phase Three). Responsibilities may be rotated, depending on skill, expertise, and seniority. This would enhance educational development, minimize "burn-out", and create a sound career path for those counsel who seek to remain in the Staff Office for a significant period of time. The office may also provide counsel with the opportunity to participate in systemic law-reform cases. As with the private bar, educational and quality-control programs should be put in place to ensure high-quality performance of staff lawyers, as discussed in chapter 7.

Legal aid clients who have chosen to use the Staff Office would be able to request that they be represented by a particular lawyer, subject to staff availability and workload. Staff clients would be able to change lawyers only in the same limited circumstances that are permitted for judicare. Once retained, the staff counsel will have a solicitor-client relationship with the individual clients and would be required to meet their clients' legal needs just as judicare counsel do.

Case-load standards must be established by the central office to prevent overload and poor service. This goal should be supported by the involvement of the local bar in assisting and advising on the operation of the Staff Office.

Staff Offices would work closely with head office to enhance the research and training programs for all lawyers doing legal aid across the province.

Block Contracts

As discussed earlier in chapter 7 of this report, blocks of cases could be tendered out to private lawyers. While this form of contracting is controversial, it may be possible to utilize this tool to enhance access to services in remote locations and to improve the quality of service and expertise of the local bar with respect to particular kinds of cases or clients. Details of this method of service delivery, and the necessary safeguards to ensure that any cost savings are not gained at the expense of service quality, ought to be developed by the legal aid authority as part of its ongoing responsibility to evaluate new and innovative delivery models for legal aid services. Outside of contracted duty counsel services, clients should always have a choice between contract counsel and, where available, private counsel on a certificate.

Case Management

All cases that proceed through judicare or the Staff Office will be subject to case-management standards. A budget will be set at the outset of the case (often this will be done for generic categories of cases) and will provide defence counsel with the parameters of the "retainer". This will provide the legal aid authority with the tools to monitor case expenditures closely. Moreover, this arrangement reflects the concept of funding legal aid cases at a level similar to what a client of modest means might expect to pay.

Phase Three: Appellate Advocacy

Appellate advocacy will be handled either locally or centrally, depending on the types of appeal. First, local Staff Offices, along with lawyers in private practice, will have an appellate capacity in relation to summary conviction appeals. Unlike indictable offence appeals, these appeals are heard by judges of the General Division, often at the local level. They are becoming increasingly more prevalent due to recent Criminal Code reforms that give the Crown the option to proceed by summary conviction in increasingly more serious matters.

Appeals to the Court of Appeal will be approved at the provincial level. Some cases will be handled by the private bar, possibly in part through block contracts. Others will be handled by a specialized Staff Office (much like the existing Crown Law Office-Criminal) that provides high-quality and efficient advocacy, offers a highly skilled environment for training and supervising counsel in this specialized area of practice, and serves as a resource for the rest of the system.

Clients will continue to have choice of counsel (e.g., either private bar, staff, or block contracts, where available).

Summary conviction appeals will be authorized by the Area Director. Appeals to the Court of Appeal for Ontario or Supreme Court of Canada will be authorized by the Provincial Director or his or her designate.

INTERNAL REVIEW

Where the Area Director makes a determination about whether a case is covered or whether to retain it in the duty counsel system, an appeal of that decision could be taken to the local Area Committee. Where there is a decision that it is not appropriate for a client to change his or her counsel, an appeal could also be taken to the Area Committee. Where there is a decision by the Area Director to strike a lawyer off the local legal aid panel, an appeal could be taken to the Provincial Director. The Provincial Director's decision not to authorize an appeal to the Court of Appeal for Ontario or the Supreme Court of Canada would be reviewable by a subcommittee of the governing authority.

DEFENCE BAR ADVISORY COMMITTEE

In order to ensure that the intake and assessment services function well and that the case load of duty counsel and the Staff Office is set at a reasonable level, and to ensure that local criminal legal aid services are being provided competently and meeting client needs, we suggest that there be a Defence Bar Advisory Committee made up of members of the local criminal bar who will assist the local Area Director or senior officials within the legal aid administration in the following ways:

  • advising on guidelines for the Area Director in relation to discretionary decisions;
  • advising on law and procedural reforms; and
  • advising on case-management standards, quality assurance and mentoring programs.

YOUNG OFFENDERS

The legal and social issues governing the delivery of legal aid services to young offenders are distinct from those relating to adult offenders. Under the Young Offenders Act (YOA), youth are guaranteed legal representation before the courts. Moreover, youth can be distinguished from adult offenders in that they are a vulnerable group who require specialized resources to support them when they confront the justice system. It is recognized that the problems of young offenders are often multifaceted and that there is often a range of responses available.

With this in mind, it is our view that the delivery of criminal legal aid services to young offenders should be structured similarly to that described above for adults, but that there should be local recognition and accommodation in the design of the range of services offered. Legal services to youth should reflect the particular needs of that group. For instance, the role of the case workers supporting lawyers in relation to bail proceedings may have to be adjusted to reflect the difficulties youth sometimes have in finding housing to support their release on bail. Similarly, the case-worker support or tariff structure for youth offences may have to accommodate the increased potential for diversion for youth or the additional work required for developing a sentencing plan for young offenders.

Lawyers working with youth should be skilled in the area of YOA proceedings and alternatives. This could be assured through a specialized Staff Office for young offenders or a special branch of the main Staff Office. In relation to judicare service delivery, there should be a specialized panel of YOA lawyers trained and evaluated in relation to this area of expertise.

To the extent that these matters are related to other family law matters (e.g. child protection), having a separate structure for young offender proceedings, especially within the Staff Office, should allow the lawyers or case workers to collaborate more closely with the family law Staff Office or with judicare counsel in related family law matters.

Under our model, young offender cases will be managed during the intake and assessment stage by the Area Office in conjunction with duty counsel and his or her staff. Choice of service-delivery option would not be given until it has been determined by the Area Director that the particular case is incompatible with the level of service that can be provided professionally by duty counsel. As with adult criminal cases, once the case is determined to be of the necessary complexity to trigger choice of counsel, a range of delivery options (depending on local availability) will be offered to the youth. All youth cases will be eligible for duty counsel coverage in accordance with the statutory right to counsel.

THE NEED FOR AN INTEGRATED JUSTICE STRATEGY FOR CRIMINAL LAW SERVICES

Crown screening is an example of an initiative that is consistent with and, indeed, required for an efficiently run legal aid system. Crown screening is a Ministry of the Attorney General policy imposing a requirement on Crown Attorneys to screen charges and to proceed only in cases and charges on which there is a "reasonable prospect of conviction". Before a case arrives in Provincial Court, a Crown Attorney should review the file to determine whether to proceed, and on what charges, whether the case requires a pre-trial, and whether the charge is suitable for diversion, and, if not, what the Crown election will be and what penalty will be sought. This then allows legal aid to make an early determination of whether the case fits into its priorities, subject to review when disclosure is made.

Our consultations across the province revealed that Crown screening practices vary considerably from courthouse to courthouse. Statistics demonstrate that guilty pleas and withdrawals still often require numerous appearances. If Crown screening were being carried out effectively, (e.g. within the set time frame and with an indication of the Crown election and sentencing being sought), the number of court appearances in relation to guilty pleas and withdrawals should be dramatically reduced. One explanation for the reduced impact of charge screening to date is that it is not consistently conducted by senior Crown Attorneys. It is suggested that more junior Crowns may be reluctant to make binding decisions to dispose of a case at first appearance.

Charge screening is also intended to identify suitable cases for alternative punishment or diversion. These are informal processes of resolving a case without the need to have the matter addressed in court and without the result of having a conviction registered for a criminal offence. There are currently no explicit policy guidelines for the alternative punishment program; rather, this determination is left to a prosecutor's discretion. As with Crown screening, leaving this process in the hands of junior Crowns may well result in fewer minor charges being diverted, and more costs incurred by legal aid and the justice system as a whole.

The value of properly screening all charges and of diversion cannot be overstated in terms of controlling justice system and legal aid costs. Timely and early disclosure by Crowns is also essential to our model. If both the Crown investment strategy and our managed intake and assessment phase are properly implemented, it would ensure that scarce legal aid resources are focused only on those charges that remain after early Crown and legal aid case screening has taken place.

One must also consider that a major change in sentencing policy was effected in 1996 with the enactment of conditional sentences. Bill C-41 indicates a major shift away from reliance upon custodial sanctions. Section 717 of the Criminal Code provides the first ever codification of the need for alternative measures (diversion). Section 718.2(d) provides that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances, and section 742.1 (conditional sentence) allows an offender to serve an imposed custodial term of less than two years in the community if the court concludes that serving the sentence in the community would not endanger the safety of the community and is otherwise consistent with the sentencing principles set out in the Criminal Code. Parliament has now provided the framework for innovative sentencing practices, and the Criminal Law Division of the Ministry of the Attorney General should respond by providing directives to prosecutors as to when a case should be considered suitable for a non-custodial disposition.

In short, if charge screening, early and timely disclosure, diversion, and conditional sentencing are effectively implemented and administered consistently by all Crown Attorney offices, there would be significant savings for the legal aid system. If these practices are not put in place, it will greatly increase the cost and reduce the operational efficiencies not only of our model, but of the criminal justice system as a whole.

RECOMMENDATIONS

  1. The legal aid authority should continue to seek a high level of cooperation and participation from the private bar in relation to the delivery of criminal legal aid services.
  2. The legal aid authority should implement a flexible and locally responsive model for the delivery of criminal legal aid services that will allow administrators of the legal aid program, lawyers and other service providers, and clients of the system, to develop service-delivery options that maximize the volume of high-quality service that can be sustained within a capped budget.
  3. The legal aid authority should develop an effective way of assessing prospective criminal law clients' needs as individuals and of setting priorities among those needs based on the impact of the provision or the withholding of services in the circumstances.
  4. The delivery of criminal legal aid services should have three components: managed intake, assessment, and straightforward dispositions; service options for complex cases; and appellate advocacy.
  5. The structure of service delivery for Phase One-Managed Intake, Assessment, and Straightforward Dispositions-should be as follows:
  6. (a) The responsibilities of the Area Directors should include:
    (i) the development of a comprehensive and managed approach to intake and case assessment; and
    (ii) the use of duty counsel to assist clients in relation to summary legal advice, adjournments, bail hearings, withdrawals, straightforward guilty pleas and sentencing, Crown screening, Crown disclosure, pre-trial conferences, and representation on trials requiring limited preparation.
    (b) There should be a duty counsel office in each courthouse. Duty counsel services should be provided by salaried or fee-for-service lawyers available for four week-rotations at a minimum. Duty counsel services should be provided at correctional facilities in order to take advantage of recent changes to the Criminal Code.
    (c) With the exception of trial representation, these preliminary services should normally be provided without the expense of an eligibility assessment. However, the Area Director, and his or her staff, should, at their discretion, be able to assess people at any point in the process where there is good reason to believe that the person can afford to retain private counsel and legal aid would spend more money providing service to the client than it costs to do the actual assessment. This would normally occur at some point before a trial occurs.
    (d) In a case where a successful financial assessment is completed, the Area Director or his or her designate should:
    (i) assess the client's case to evaluate how much time will be required to prepare the case effectively to ensure trial fairness, and
    (ii) determine whether the case is one that can be prepared within the time available for duty counsel, or whether the client should be provided with choice of service delivery.
    (e) The guidelines used by the Area Director or his or her designate to determine the appropriate service-delivery mechanism for a particular case should be developed in conjunction with the private bar. The private bar should also work with the Area Director to monitor and assist duty counsel to ensure that clients are getting quality legal representation from all parts of the criminal legal aid system.
  7. The structure of service delivery for Phase Two-Service Options for Complex Cases-should be as follows:
    (a) The client should be provided with choice of counsel. Service delivery may be available through the private bar, through local Staff Offices, or from counsel working on block contracts.
    (b) The design mix for the delivery of criminal legal aid services in each locale should be proposed at a local level (and approved by head office) having regard to client needs, including geographic, linguistic, and other special needs.
    (c) Where both appropriate and feasible, Staff Offices should be set up to provide criminal legal aid services in communities across the province. The offices should be staffed with a range of persons, including lawyers and case workers (e.g., supervised paralegals, bail officers, social workers, community workers, criminal investigators, and interpreters). The operation of the Staff Office should be linked to the duty counsel program.
    (d) Lawyers employed by the Staff Office should perform a range of functions, including advice counsel, trial counsel, or appellate counsel. Responsibilities may be rotated within the office, depending on range of expertise and seniority. Salaried duty counsel staff should also have access to internal rotation opportunities within the Staff Office.
    (e) Clients of the Staff Office should, where feasible, be able to request choice of counsel within the office.
    (f) All cases referred beyond the early managed intake phase to either private bar or Staff Office counsel should be subject to case-management standards.
  8. With respect to Phase Three-Appellate Advocacy-all appeals to the Court of Appeal should be approved at the provincial level and supported by a central research facility. Summary conviction appeals should be handled by the local Staff Offices or by local practitioners on certificate or block contract.
  9. The services provided by private lawyers, staff lawyers, duty counsel, and other staff should be subject to appropriate quality-assurance mechanisms. Standards should be set for lawyers wishing to be on panels to accept legal aid certificates.
  10. Area Directors should be responsible for supervising quality assurance (including controlling panel membership), providing consistency in eligibility determinations, building strong local-bar input into the delivery of criminal legal aid services, and ensuring that client needs are being met appropriately.
  11. Provincial or regional support from the legal aid administration should be made available to local service providers through: dedicated research and other non-legal support services, quality-assurance programs, policy development, and law-reform capacity.
  12. A Defence Bar Advisory Committee should be set up in each community, made up of members of the local criminal bar who will provide assistance to the local Area Director or senior officials within the legal aid authority:
    (a) advising on guidelines for the Area Director in relation to discretionary decisions;
    (b) advising on law and procedural reforms; and
    (c) advising on case-management standards, quality assurance and mentoring programs.
  13. The structure of service delivery for young offenders should be as follows:
    (a) The delivery of criminal legal aid services to young offenders should be similarly structured to that described above for adult offenders, but there should be local recognition and accommodation in the design of the range of services offered to reflect the special issues arising in regard to youth and children who become involved in the criminal justice system.
    (b) Lawyers working with youth should be knowledgeable in the area of Young Offenders Act proceedings and related community services, and should meet appropriate performance standards set by the legal aid administration.
    (c) All youth cases should be eligible for duty counsel coverage in accordance with the statutory right to counsel, and those cases determined to be of sufficient complexity to trigger choice of counsel should receive a choice of service-delivery options (as available in their community).
  14. Community clinics should not be used to provide criminal law legal aid services directly, except in exceptional circumstances, although criminal Staff Offices should consider co-locating with, or locating near, community clinics.
  15. Where the Area Director makes a determination about whether a case is covered or which delivery model is appropriate, the Area Committee should hear appeals from such determinations. Where there is a decision that it is not appropriate for a client to change his or her counsel, an appeal could also be taken to the Area Committee. Where there is a decision by the Area Director to strike a lawyer off the local legal aid panel, an appeal could be taken to the Provincial Director. The Provincial Director's decision not to authorize an appeal to the Court of Appeal for Ontario or the Supreme Court of Canada would be reviewable by a subcommittee of the governing authority.
  16. Charge screening, early Crown disclosure, diversion, and conditional sentencing should be consistently and effectively put into place across the province by the Crown to match the early intake and assessment procedures recommended in relation to the delivery of criminal legal aid services.