Summary of Recommendationse
The Ontario Legal Aid Review makes the following recommendations:
CHAPTER 4 THE LEGAL NEEDS OF LOW-INCOME ONTARIANS
1. The design of the legal aid system should be based on the assessment of the specific legal needs of low-income Ontarians.
2. The design of the legal aid system, while reflecting these needs, should also address the diversity of special needs presented by such groups as ethnic, racial, cultural, and linguistic minorities, persons with disabilities; Aboriginal communities; women; children; youth; and the elderly.
3. The legal aid system should enhance its central and local capacity to gather and assess information regarding client needs.
4. The legal aid system should more effectively rely upon the clinic system, Plan administrators, and other service providers as a means of systematically gathering information with respect to legal needs.
CHAPTER 5 A FRAMEWORK FOR SETTING PRIORITIES FOR LEGAL AID
5. 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.
CHAPTER 6 THE LEGAL AID SYSTEM IN CONTEXT
6. The legislative mandate for the legal aid system should assign a high priority to its role as a proactive change agent in researching, developing, publicizing, and promoting substantive and procedural reforms to the broader justice system; in turn, the system should develop the necessary human-resource capabilities (internal and external) to play this role effectively.
7. The chief executive officer of the legal aid authority should develop close institutional linkages with other partners in the justice system including the governance bodies of any new unified administrative agency for the courts and any unified administrative justice system agency that might be created.
8. The Ontario legal aid authority, either alone or, preferably, in concert with other provincial legal aid agencies, should develop reform proposals that require federal cooperation, and apply pressure on the federal government to be responsive to these reform proposals (rather than externalizing the costs of any existing inefficient federal proceedings onto provincial legal aid plans).
CHAPTER 7 THE CHOICE OF DELIVERY MODELS FOR LEGAL AID
9. The Plan should seek to narrow the gap between full representation and no representation through provision of a much greater variety of legal services in order to assist a broader range of potential clients by invoking a wide spectrum of delivery mechanisms, including, for example, public legal education, duty counsel, supervised paralegals, Staff Offices, community legal clinics, judicare, and block contracting.
10. The choice of delivery models must be highly sensitive and adapted to context-the legal context in which services are required, the geographic context where they must be provided, and the context of particular client groups with special needs who require these services.
11. In choosing delivery models in particular contexts, a premium should be attached to early intervention to promote issue identification, settlement, mediation, diversion, and referral to other community agencies, rather than withholding legal assistance until disputes have become more intractable and costly to resolve, which may be counter-productive and impose greater demands in the long term on both the legal aid system and the underlying justice system.
12. While different delivery models will often be complementary to one another, there are also substantial advantages, in various contexts, of creating competing delivery models, for example, judicare and Staff Offices in criminal law, family law, and refugee/immigration law in larger urban centres.
13. In choosing delivery models in particular contexts, the Plan should be sensitive not only to relative cost considerations, but also to relative quality considerations, in particular the ability to prescribe and implement an effective quality-control regime in order to control problems of supplier-induced demand and quality variability or deterioration.
CHAPTER 8 RENEWING THE COMMITMENT TO LEGAL AID
14. The legal aid system and the province of Ontario should manifest their renewed commitment to legal aid by formally exchanging and recording in the Legal Aid Act the following set of understandings:
(a) A Shared View of the Fundamental Purpose of Legal Aid
Access to Justice
- The fundamental objective of the legal aid system is to promote equal access to justice by identifying and meeting the diverse legal needs of qualifying individuals and communities.
(b) Commitments of the Legal Aid System
A Needs Based System
- The legal aid system shall identify and assess the needs of those who are unable to afford legal services and seek to meet those needs appropriately.
Quality of Service
- The legal aid system shall be responsible for ensuring that the legal services it provides are of consistently high quality across the province.
- The legal aid system shall set priorities for service delivery in order to target available resources to the most appropriate cases.
Cost Effectiveness and Accountability
- The legal aid system shall be responsible for assuring the public that legal services are being provided in a cost-effective manner and that effective use is being made of modern information-technology and management techniques.
- The legal aid system shall be flexible, innovative, and experimental with respect to service delivery in order to maximize its ability to meet legal needs effectively and efficiently.
- The legal aid system shall undertake ongoing research and develop strategies to implement law and procedures which encourage access to justice and an efficient, integrated justice system.
- The services of the legal aid system shall be responsive to persons with diverse needs, including ethnic, racial, cultural, and linguistic minorities, persons with disabilities; Aboriginal communities; women; children; youth; and the elderly.
- The legal aid system's governance structure must be one that will attract public credibility and legitimacy and will have the capacity to effectively discharge its mandate in the public interest.
(c) Commitments of Government
- The government shall commit itself to the independence of the legal aid system from the government.
- The government shall ensure adequate, multiyear, stable funding to enable the legal aid system to carry out its responsibilities.
- The government shall commit itself to ongoing scrutiny and reform of those features of the underlying justice system that constitute major determinants of legal aid needs.
CHAPTER 9 CRIMINAL LAW LEGAL AID SERVICES
15. 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.
16. 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.
17. 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.
18. 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.
19. The structure of service delivery for Phase One-Managed Intake, Assessment, and Straightforward Dispositions-should be as follows:
(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.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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.
26. 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).
27. 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.
28. 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.
29. 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.
CHAPTER 10 FAMILY LAW LEGAL AID SERVICES
30. Legal aid administrators should implement a flexible and locally responsive model for the delivery of family law legal aid services that will allow administrators, service providers, and clients to develop service-delivery options that maximize the volume of high-quality services that can be sustained within a capped budget.
31. The legal aid authority should develop an effective way of assessing prospective family 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.
32. Legal aid administrators should diversify the mix of service-delivery models used to provide family law legal aid services in Ontario as follows:
(a) private judicare lawyers should continue to be a primary provider of services;
(b) the legal aid system in Ontario should develop a limited number of Staff Offices. These offices should be staffed by lawyers, supervised paralegals, counsellors, and administrative personnel. These offices should be modelled on the full-service pilot approved by the Law Society in 1994. At least one Staff Office should be modelled on the Women's Family Law Centre pilot approved by the Law Society in 1993;
(c) community clinics should not be used to provide family law legal aid services directly, except in exceptional circumstances, although family Staff Offices should consider co-locating with, or locating near, community clinics;
(d) the legal aid system should develop an expanded duty counsel program for the delivery of family law services;
(e) block contracting should not be used as a means to deliver family law legal aid services;
(f) the use of supervised paralegals in providing family law services should be significantly enhanced, to support and assist the work of private, staff, and duty counsel lawyers, and to perform work which does not require lawyer involvement;
(g) Area Offices, Staff Offices, and/or expanded duty counsel offices should have more public-education materials available for family law litigants. These materials, prepared in a variety of languages, should be made available at the first point of contact.
33. The legal aid system should provide a special certificate or retainer to address "emergency" family law matters; a sophisticated case-assessment/intake function to assess and address the full range of "non-emergency" legal needs in light of established priorities; a significant summary legal advice program; a case-management program for legal aid services delivered by either private or staff lawyers; and an expanded duty counsel program.
34. The case-assessment/intake function for family law matters should begin when an applicant enters an Area Office (or one of its satellites), with some intake services being available at Staff Offices or duty counsel offices or, in some instances or at some locations, community clinics. These alternative intake offices should be linked electronically to Area Offices in order to provide access or linkages to many of the same functions performed by Area Offices.
35. The structure of service delivery for "emergency" legal assistance in family law cases should be as follows:
(a) The legal aid system should provide immediate "emergency" legal assistance in instances where a delay in the provision of at least some form of legal assistance could have irreparable, serious consequences for the person involved, or for his or her family. Other legal aid offices, including Staff Offices, duty counsel offices, or community clinics, should be allowed to authorize "emergency" legal assistance in the absence of an accessible Area Office.
(b) "Emergency" legal aid assistance should be in the form of either an interim "emergency services" certificate or the provision of a limited amount of legal services within a Staff Office or duty counsel office until such time as the individual's situation has stabilized.
(c) Individuals who need emergency legal assistance should not normally be subject to a full legal or financial assessment at this stage. Rather, in most cases, the individual should undergo a more complete intake interview and assessment as soon as the situation has been stabilized.
36. In cases judged not to be emergencies (or where the situation has stabilized), each applicant should be subject to a full case-assessment and intake process, including a test for financial eligibility.
37. Applicants who are not financially eligible for legal aid assistance or whose issue does not fall within the legal aid system's services or priorities should be provided with public-education materials, or referral to other agencies or, through the Lawyer Referral Service, to a member of the private bar, as appropriate. Applicants who are diverted to other agencies should be told that that they could return to legal aid if and when their matters assumed a legal dimension.
38. Applicants who are financially eligible for legal aid and whose legal matter is covered by the legal aid program should be provided a range of legal services, including representation on a solicitor/client basis by way of either a legal aid certificate or a Staff Office; summary legal advice in the entire range of family law matters; or referrals to duty counsel, depending on their personal legal needs.
39. The number of duty counsel available for family law proceedings should be significantly increased, in the form of a permanent duty counsel office located at either an Area Office or a local courthouse, where financially feasible.
40. The summary advice program should work in conjunction with the expanded duty counsel program in order to assist clients to utilize duty counsel effectively on consent matters and adjournments once they have received summary legal advice or help with court forms. The person providing summary legal advice should assist a client in making an application for more intensive forms of legal assistance, should that assistance prove necessary during the course of providing summary advice.
41. In cases where individual case representation is appropriate, the client should be provided with an initial, limited retainer for either a private or staff lawyer. The client should be allowed to choose whether that retainer is taken to a private or staff lawyer. If a client's case cannot be resolved within the limits of the initial referral, the staff or private lawyer should be authorized to submit an opinion letter outlining the additional services necessary. Upon receipt of the letter, legal aid administrators should determine whether or not to approve further services under a case-management plan.
42. 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.
43. Family law legal aid services provided by members of the private bar should be supplemented with a number of central supports, including access to dedicated research and other central services, and to client-support facilities in family law Staff Offices. Staff Offices should also develop strong linkages with community and other agencies providing services needed by family law legal aid clients and to other legal aid offices dealing with related issues such as young offender matters.
44. The family law case-management program should be designed to work in conjunction with many existing programs to deliver family law legal aid services, including the Plan's successful Settlement Conference program and various mediation and other programs, if appropriate.
45. A Family Bar Advisory Committee should be set up in each community, made up of members of the local family 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.
46. 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.
CHAPTER 11 "POVERTY LAW" LEGAL AID SERVICES
47. A revised Legal Aid Act should include an explicit mandate to provide "poverty law" services.
48. The community clinic model should be retained as the primary means of delivering "poverty law" services in the province.
49. The independent community board of directors model for individual clinics should be retained.
50. The legal aid authority should make training of community-clinic board members a high priority.
51. The unit of the legal aid authority responsible for clinics should develop infrastructures designed to support community boards, including assistance in the areas of fiscal management, labour relations, conflict resolution, and technical support. This unit should facilitate the development of board "best practices", mentoring opportunities, access to experts, and improved communication between community boards.
52. The clinic system's "Quality Assurance Program" should be pursued vigorously. The clinic system should continue its current efforts to regularize data collection across the province.
53. Individual clinics and the overall clinic system should initiate a multiyear strategic-planning process. This process should include an assessment of the current and likely future demand for "poverty" law services; an evaluation of the strengths and weaknesses of the system to meet that demand; the development of programs or strategies designed to create or improve the coordination of services and skills within the system; and the development of performance measures against which the achievement of those objectives can be assessed.
54. The Executive Director of each individual clinic should sit on the Area Committee of the administrative unit of the legal aid authority in his or her area. The Area Director, or his or her designate, of each administrative area within the legal aid authority should be a member of the board of directors of the clinic in his or her area.
55. As a general rule, the general service clinics should not have a mandate to provide direct case representation in criminal, family, or immigration and refugee law matters. However,
(i) such clinics should be allowed to provide other kinds of services in these areas where such services are consistent with their "poverty law" mandate and appropriate safeguards are in place to ensure that these services do not overwhelm the clinic's "poverty law" services, and
(ii) they should be allowed to deliver limited case-representation services in exceptional circumstances (including geographic remoteness and/or lack of other available service providers) if such services are assessed as a community priority.
56. Specialty clinics could and should provide services (including case representation) in these areas if such services would support their focus on systemic issues or would support their client community.
57. The legal aid authority should make the completion of the geographic coverage of the general service clinic system a key priority. The legal aid authority should consult with current clinics, community groups, service providers, and interested individuals in order to determine the need for any new specialty clinics.
CHAPTER 12 IMMIGRATION AND REFUGEE LAW LEGAL AID SERVICES
58. The legal aid authority should establish a needs-assessment and priority-setting process for application by local decision-makers, and an appeals process, in relation to refugee and immigration matters in accordance with the principles set out in this report.
59. With respect to the issuance of legal aid certificates for refugee determinations, the legal aid authority should consider whether the current process of screening claimants to determine whether family members could finance legal representation is cost-justified. Similarly, the issuance of "opinion certificates" to enable counsel to draft a letter to the Plan explaining the merits of the case rather than full certificates should be reviewed to determine whether this is cost effective.
60. In the event of a negative refugee determination, the legal aid administrators should consider modestly expanding the initial "opinion letter" for funding for judicial review and permit: (a) an opinion letter on judicial review; and/or (b) application for consideration under the Post-Determination Refugee Claimants in Canada (PDRCC) program; and/or (c) application for humanitarian and compassionate consideration.
61. The legal aid system should provide legal aid services for detainees, at least with respect to an initial detention review, through the Refugee Law Office.
62. With respect to deportation proceedings, legal aid should resume screening applicants with a view to funding financially eligible applicants who have been in Canada since childhood or adolescence, and have little connection to their country of citizenship if this qualifies as an overall priority for the legal aid system. Similarly, legal aid certificates for preparation of certificate of "public danger" submissions to the Minister of Citizenship and Immigration should be considered for a limited number of hours to those for whom the consequences of removal are the most serious (refugees and those who have been in Canada since their youth).
63. The legal aid authority should consider whether there are cost savings to be realized from contracting-out blocks of cases from the same country or region to lawyers or law firms for a pre-set fee (to be determined in consultation with the bar), and allow counsel to tender based on quality-assurance commitments.
64. The legal aid authority should adopt a range of quality control strategies, including: (a) information vehicles explaining to claimants how legal aid works, what clients are entitled to expect from lawyers, and providing a number/contact person to whom complaints/questions can be directed; (b) formulating standards of conduct for the practice of immigration/refugee lawyers; (c) coordinating investigation and disciplinary efforts.
65. The mandate of the Refugee Law Office, established as a pilot project in 1994, should be substantially extended to include not only refugee determinations, but detention reviews, deportation proceedings, applications for consideration under the Post-Determination Refugee Claimants in Canada program, applications for humanitarian and compassionate consideration, and certificates of "public danger" submissions. In addition, all initial screening for legal aid certificates in immigration and refugee matters in Toronto should be undertaken by the Refugee Law Office (renamed the Immigration Law Office), with successful applicants for legal aid then having the choice of using the services of the RLO (ILO) or private counsel.
CHAPTER 13 "OTHER" CIVIL LAW LEGAL AID SERVICES
66. The Ontario government should introduce legislation that allows for regulated contingent-fee arrangements for lawyers in Ontario.
67. The legal aid authority should coordinate efforts with its justice–system partners to establish a Contingency Legal Aid Fund for low-income Ontarians.
68. The legal aid authority should revisit the range of civil cases that historically had coverage under the Plan, and should reassess whether or not coverage should be provided to people in some or all of the matters in light of our articulated priority-setting considerations and managed-intake proposals.
CHAPTER 14 FUNDING AND FINANCIAL ARRANGEMENTS
69. Assuming that the legal aid system in Ontario is to meet fixed funding commitments, the Legal Aid Act should be amended to reflect this arrangement.
70. The provincial government should provide the legal aid authority with a rolling, three-year funding allocation. The legal aid authority should be allowed to carry surpluses and deficits within the three-year cycle (and, with the Attorney General's approval, between cycles).
71. As a condition of funding, the legal aid authority should provide the provincial government with annual reports, annual business plans, and a multiyear strategic plan.
72. The Legal Aid Act should, at a minimum, guarantee the current level of funding for the clinic program's current mandate for a period of at least three years after the expiry of the MOU.
73. The legal aid authority should make the development of a sophisticated management-information and information-technology strategy an early priority. This strategy should seek to:
(i) increase operational and financial controls;
(ii) reduce administrative costs;
(iii) enhance program-evaluation capabilities; and
(iv) improve the quality of service to clients and service providers, potentially including improvements in access, electronic reporting of work done, direct deposit to service providers' bank accounts, electronic reporting of payments for work done, and outstanding work-in-progress and work yet to be done.
74. The legal aid authority should continue its client-contribution policy based on assessed ability to pay.
75. The legal aid authority should improve its ability to recover client contributions and costs, including improved collection on Pay Agreements and lien proceeds, should it prove cost-effective to do so.
76. The legal aid authority and the provincial government should approach the federal government in order to:
(i) urge the federal government to maintain or increase the present level of federal funding to legal aid;
(ii) identify federal laws, procedures, or policies which affect the demand for legal aid and access to justice in furtherance of the authority's responsibility to undertake ongoing research and develop strategies to implement law and procedures which encourage access to justice and an efficient, integrated justice system; and
(iii) seek funding for one or more of the innovative projects discussed in this report.
77. The prevailing level of funding for legal aid services in Ontario should continue past the expiry of the MOU.
78. The provincial government should establish a separate budget allocation for the purpose of funding one-time "transition" costs, including the appointment of a transitional board, and improved information technology, which funds will be required in the 1998/99 fiscal year.
CHAPTER 15 GOVERNANCE
79. Governance of the legal aid system in Ontario should be transferred from the Law Society to an independent statutory agency.
80. The government should play a critical role in the appointment of the members of the agency and should assume political responsibility for the definition of its mandate. Once the government has established an agency in which it can have confidence and has defined its mandate, however, the government should, in the normal course of events, allow the agency to proceed with the job assigned to it.
81. The mandate of the new agency should specifically indicate that it is to provide appropriate legal aid services across a broad range of service areas, such as criminal law, family law, immigration and refugee law, and "poverty law". The mandate of the new agency should be stated in an authoritative fashion, preferably in the enabling legislation for the agency.
82. The agency should be designed in such a way as to ensure that it has the capacity to carry out the commitments assigned to it in the new vision for legal aid in Ontario, set out in chapter 8.
83. The board of the agency should be constituted in the following manner:
- The board should have eleven members. The members should be appointed to the board by the Lieutenant Governor-in-Council, upon the advice of the Attorney General.
- Of the eleven members, four should be nominated by the Attorney General from a list of ten provided by the Law Society, two of whom must be lawyers who have a significant connection with the clinic system, it being envisaged that at least one of lawyers selected by the Attorney General from the Law Society slate would have extensive knowledge and understanding of the clinic system. The lawyers recommended by the Law Society need not be Benchers. Consideration should be given to requiring the Treasurer of the Law Society to consult with the Chief Justice of Ontario with respect to the identity of the Law Society nominees.
- The chief executive officer of the agency should sit on the board as a full voting member. In other respects, the Attorney General should be accorded reasonable latitude in selecting candidates for the board in order to achieve as sound a balance as possible of the various groups with a claim to be represented on the board.
- The legislation establishing the agency should provide that the Attorney General, in appointing persons to be members of the board, shall have regard to the desirability of ensuring that the board includes persons having expertise in or knowledge of :
(a) the provision of legal services;
(b) the work of the courts and tribunals;
(c) management; and
(d) the legal needs of low-income Ontarians.
84. Members of the agency board should be appointed for three- or four-year terms on a staggered basis. Individual members would be eligible for consideration for a further term.
85. The regular members of the board should be part-time members, as could the chair and vice-chair.
86. The chair and vice-chair of the Board should be appointed by the Attorney General after consultation with the Treasurer of the Law Society. The chair and vice-chair should have longer terms of office than regular members.
87. The responsibilities of the board should be as follows:
- Within the agency's mandate, the board should be responsible for policy-making and strategic planning, and conducting these activities in a manner which is transparent to the Ministry of the Attorney General and the public at large.
- The board would be responsible for formulating cyclical strategic plans which would set the overall objectives for the legal aid system by assessing current and future needs for services, developing strategies to meet those needs, and setting performance measures against which it can be determined whether the achievement of these objectives has been met.
- The board would determine service priorities and allocate resources in accord with those priority determinations.
- The board would be responsible for financial management and budgetary planning.
- The board would formulate requests for provincial funding, which would be forwarded to the Attorney General, and act as an advocate for appropriate levels of funding.
- The board would be responsible for all expenditures of public funds and comply with government requirements concerning reports and audits.
- The board would be responsible for and accountable for the management of the agency and the operation of the service-delivery system.
- The board would develop programs designed to ensure cost-effectiveness of service delivery, quality assurance, and responsiveness to client needs.
- The board would establish a research, program-evaluation, and policy function.
- The board would determine the management and organizational structure for the agency.
- The board would develop human-resources planning and play a direct role in the hiring of senior management.
- The board would develop the agency's capacity to participate in the development of an integrated justice system in collaboration with other partners in the justice system.
- The board would assume responsibility for developing a management information and information-technology strategy for the agency.
88. The name of the agency should be the Legal Services Corporation of Ontario.
89. A number of tentative suggestions concerning the organizational structure of the new agency are offered. We suggest the creation of a separate reporting line for the clinic system which would report to senior management at the same level as the other three functional groups, operations, corporate services and a new program-evaluation and planning function. To signal the increased emphasis on comprehensive management of the system, the title Area Director should be replaced by Area Manager. We suggest that the organizational structure be relatively flat and, more particularly, not include the insertion of a regional level of management of the legal aid system. With respect to the latter point, however, we recommend that one of the Area Managers within each region of the province be identified as the Regional Senior Area Manager for purposes of carrying out coordination of activities within the region.
90. Although we favour continuation of 'the current role performed by local Area Directors, the number of Area Managers could be reduced by assigning to some the responsibility for more than one community in their particular region of the province, provided that reducing the number of Area Managers in this way would effect significant cost-savings for the legal aid system.
91. There should be a local cyclical strategic-planning exercise parallel to the process carried out at system-wide level. Local strategic plans would inform and be informed by the system-wide process and would be subject to agency approval.
CHAPTER 16 AN IMPLEMENTATION STRATEGY
92. The proposals set forth in this report should be implemented in three phases, the details of which are outlined in chapter 16. Summarized briefly, our proposals should be implemented as follows:
(a) The first phase, from receipt of this report to enactment of legislation, would involve a policy-development and legislative drafting process within the Ministry of the Attorney General. At the same time, the Ministry should begin to identify people to serve on the board of the Legal Services Corporation of Ontario and should enter into negotiations with the Law Society concerning the framework for a smooth transition to the new legal aid system.
(b) The second phase, from enactment to expiry of the Memorandum of Understanding in March of 1999, would involve the establishment of the board of the Legal Services Corporation and the development and implementation of a comprehensive transition plan which will ensure a seamless transition for the clients, lawyers and other service providers of the legal aid system and establish appropriate structures to enable the new agency to assume its responsibilities in March of 1999.
(c) The third phase, post-March 1999, would be the assumption by the Legal Services Corporation of Ontario of responsibility for discharging its statutory mandate and the implementation of its strategy for providing a needs-focused, high quality, prioritized, and cost-effective legal aid service that will be designed to meet the broad range of legal needs of low-income Ontarians.