In August of 2007, the Honourable Michael Bryant, Attorney General of Ontario, asked Professor Michael Trebilcock of the University of Toronto Faculty of Law to undertake a review of the legal aid system in the Province. Professor Trebilcock succeeded Professor John McCamus of Osgoode Hall Law School, who had been appointed as Chair of Legal Aid Ontario in July of 2007, making it inappropriate for him to continue a review involving an agency that he now headed. The Honourable Chris Bentley was appointed Attorney General of Ontario in October 2007.
The terms of reference required Professor Trebilcock to conduct a review of legal aid in Ontario since 1999, including a consideration of the Legal Aid Services Act, 1998 and regulations, focusing on the tools and capacities to maximize effective administration and good governance of the legal aid system, and examining alternatives to the current tariff process, including methods of ensuring regular reviews to set and adjust the hourly rate paid to lawyers doing legal aid work. He was specifically mandated to work with Legal Aid Ontario, to consider best practices in other jurisdictions, to take into account the historical context of legal aid in Ontario, and to hold such consultations as he considered appropriate.
A series of consultations were held with various groups and individuals (see Appendix) between May and December 2007, first led by Professor McCamus and then by Professor Trebilcock, and over twenty written submissions were received during this period.
Setting the Context (Sections II, III, IV, V)
Section II: The McCamus Report, 1997
Section II briefly sets out the context in which the McCamus Task Force was appointed in 1996 and the major themes of its report, which was released in 1997. The McCamus Report recommended that the governance of the legal aid system be transferred from the Law Society to an independent statutory agency. The Report recommended that the mandate of the agency be set out in the enabling legislation and should require it to provide services in the areas of criminal law, family law, immigration and refugee law, and poverty law.
The government's primary role in relation to the new agency would be to appoint its members and to assume political responsibility for defining the agency's mandate. The government would provide the funding, but would allow the agency to determine its own method of priority-setting and service delivery in providing the mandated services.
Section III: The Statutory Framework
Section III briefly reviews the important features of the Legal Aid Services Act, enacted by the Ontario legislature in 1998, largely responding and giving effect to the McCamus Task Force's recommendations.
The Legal Aid Services Act, 1998, establishes Legal Aid Ontario (LAO) as an independent not-for-profit statutory corporation. LAO's mandate is to create and administer a cost-effective and efficient system for providing high quality legal aid services to low-income Ontarians. The Act establishes a board of directors for Legal Aid Ontario, responsible for the governance and management of the corporation. The board appoints a president, who is chief executive officer of the corporation and who is responsible for implementing the policies of the board.
The Legal Aid Services Act, 1998 gives LAO broad authority in the design and administration of the legal aid system in Ontario. This independence allows for flexibility and innovation in the design of legal services, and allows LAO to adapt services in recognition of the diversity of special needs in the province. The Act also requires LAO to have regard to the fact that the private bar is the foundation for the provision of legal aid services in the areas of criminal law and family law, and that clinics are the foundation for the provision of legal aid services in the area of poverty law. The Act allows LAO to employ duty counsel and to enter into contracts with the private bar to provide duty counsel services. It also enables the creation of staff offices, and grants LAO the authority to provide funding to clinics.
Under the Act, the government retains authority to make regulations on a number of substantive matters, including financial eligibility requirements for legal aid and the tariff of fees and disbursements.
Section IV: Notable Achievements by Legal Aid Ontario
Section IV briefly summarizes notable achievements of LAO since it began operations in 1999. LAO acknowledges that it has been more innovative over the years in its internal administration than in external service delivery. It is the delivery of services by full-time employed staff that has been the most significant change in the past eight years. The complement of lawyers in staff offices has risen from 16 in 1999-00 to 26 in 2006-07, the number of staff duty counsel has risen dramatically, from 36 to 136, and the total number of clinic staff lawyers rose from 176 to 242.
LAO currently has seven staff offices, one for refugee law, three for family law and three for criminal law. LAO has quadrupled the complement of staff duty counsel over the past eight years, and has expanded full-time supervisory duty counsel and Duty Counsel Offices (DCOs) to a total of 65 locations (including both family and criminal law sites). In addition to the DCO program, LAO has established an advice lawyer program to provide family law services in Family Law Information Centres (FLICs) operated by the Ontario Ministry of the Attorney General, and LAO has also developed specialized duty counsel for Domestic Violence, Mental Health, Gladue and Drug Treatment Courts. LAO has expanded the clinic system to ensure community legal clinic coverage in all areas of the province, bringing the total number of clinics to 80, including 18 specialty clinics.
LAO has examined ways to make applications for legal aid and access to the legal aid system easier for potential clients, including the Homeless Access and Referral Partnership Project (HARP) and, most recently, the Simplified Online Application Portal (SOAP).
LAO has also developed a number of technological innovations that reduce administrative burdens both for certificate lawyers and for the system itself. Technology has enabled improvements in billing and payment and in sharing legal research. Finally, LAO has developed a number of measures to improve the quality of legal aid services in the province such as minimum panel standards and a mentoring program.
Section V: Submissions and Consultations
Section V sets out the major criticisms and proposals for reform of the current legal aid system made either to Professor McCamus or Professor Trebilcock in the course of written submissions by or meetings with various stakeholders.
The majority of submissions dealt with three key issues: funding of the system, including tariff and salary levels; coverage of legal aid services; and governance and administration of the system.
All of the organizations representing legal aid certificate lawyers emphasized the inadequacy of hourly rates, and most submissions noted that fewer lawyers are willing to do legal aid work than in the past. Several submissions noted that young lawyers are not going into legal aid work. A number of submissions noted the recruitment and retention issues resulting from low salaries for legal aid lawyers, including staff lawyers, duty counsel and clinic lawyers. Organizations representing legal aid certificate lawyers urged the adoption of a regular tariff review mechanism in order to avoid past situations where the tariff was increased only in response to a crisis, and others argued that any tariff review mechanism should also address the overall budget of LAO.
A number of organizations commented on the lack of service integration in the legal aid system, and offered ideas such as multi-disciplinary clinics, broader ranges of service areas, and a single entry point for clients. Several emphasized the need for services and programs at the front end of the legal process to promote early resolution and to reduce demand on downstream social services.
Several submissions argued that financial eligibility criteria are not reflective of current financial realities and impact particularly heavily on already vulnerable populations. A number also noted the significant lack of access to justice for the working poor and middle class, and the increasing phenomenon of unrepresented litigants. Many submissions expressed particular concerns over the very restrictive access to legal aid assistance in family law matters.
The submissions contained few comments regarding Legal Aid Ontario's board of directors. None advocated a return to the old governance regime or proposed moving to some radically different new governance regime.
Future Challenges Facing the Legal Aid System (Sections VI, VII, VIII, IX)
Section VI: Framework for Evaluation
Section VI sets out the major rationales for a public commitment to enhancing access to justice and makes a provisional and general assessment of how well the public commitment to this ideal has been maintained over the decade that has followed the publication of the McCamus Report.
Several normative rationales for the ideal of access to justice are discussed: the rule of law; equal freedom and dignity of individuals; principles of equitable distribution; and the relationship between the rule of law and economic prosperity. Recent World Bank studies have found that the rule of law accounts for nearly 60 per cent of a state's intangible wealth.
In many respects, the legal aid system in Ontario, in all its dimensions, is a social program of which Ontario citizens can be proud. However, this said, a substantial measure of satisfaction in what has been achieved should not become a source of complacency as to the substantial challenges that the system faces in the future.
The legal aid system, despite the important normative rationales that underpin it, is not a system in which most middle class citizens of Ontario feel they have a material stake. As a percentage of the population, fewer and fewer citizens qualify for legal aid, and many working poor and lower middle-income citizens of Ontario confront a system which they cannot access and which they are expected to support through their tax dollars even though they themselves face major financial problems in accessing the justice system. Both LAO and the Government of Ontario, through the Ministry of the Attorney General, need to accord a high priority to rendering the legal aid system more salient to middle-class citizens of Ontario (where, after all, most of the taxable capacity of the province resides). In addition, there has been a significant decline in the number of lawyers participating in the certificate system.
However, any argument for additional financial resources must assure the provincial government and the taxpayers of the province that the existing level of funding is being used in the most cost-effective and productive ways possible, and that legal aid resources are being expended to facilitate more timely and more effective resolution of disputes.
Section VII: Innovations in Service Delivery
Section VII evaluates a range of either existing or potential alternative delivery mechanisms and seeks to establish the need for a much higher level of innovation and experimentation by LAO in the mixed delivery system that it oversees.
We are now well beyond the debates of previous decades about the merits or cost-effectiveness of particular models for the delivery of legal aid services, whether these delivery models be based on the private bar, staff lawyers, clinics, or other variations. It is also now clear that there is no silver bullet, no previously unimagined idea that will reveal the best, most efficient and most cost-effective means of delivering legal aid in all contexts. In the face of the serious issues confronting the legal aid system, it becomes increasingly important that LAO be much more strategic, innovative and experimental in its approach to service delivery.
There is significant potential for LAO to build on current staff lawyer initiatives. LAO should continue to pursue opportunities to use staff duty counsel where feasible, in both criminal and family courts. In particular, LAO should explore the potential for duty counsel to provide more, and more varied, pre-litigation services, especially in family law. LAO should also expand the use of paralegals where it is appropriate and cost-effective to do so.
Criminal and family staff offices serve the useful function of filling in niches in the market in servicing the needs of especially vulnerable clients (e.g. those with mental health issues) or providing services where lawyers are not available for certificate work. In addition, the existing staff law offices provide LAO with a useful window on this segment of the legal aid services market by yielding independent observations on appropriate hourly allocations to various proceedings. Family law staff offices, in particular, have strong potential to provide integrated, holistic services to clients, and in light of the frequent commentary as to the serious difficulty family law litigants face in finding lawyers to accept legal aid certificates (particularly for child protection matters or in rural communities), there may well be a strong argument for expanding the number of family law offices. LAO will need to carefully monitor the statistical data to assess which communities in Ontario may most benefit from these services.
Beyond these existing initiatives, LAO must be willing to experiment with new, innovative ideas. There ought to be a much more integrated system for providing low-cost information and summary advice services to a broader range of citizens than is currently available.
It is true that in Ontario some forms of summary legal assistance are provided without, or with more relaxed, means testing. These include duty counsel services; various web sites which provide public legal education materials; the Law Society of Upper Canada's telephone hotline service; and Pro Bono Law Ontario's recent pilot programs which utilize volunteer lawyers to improve access to justice in the Small Claims Court and the Superior Court in Toronto. Some clinics also provide summary advice on a non-means tested basis. However, all of these initiatives are ad hoc, poorly integrated, not aggressively promoted to the public, and cannot reasonably be viewed as constituting a systematic effort to enhance access to justice for the working poor, lower middle-income, and middle-class citizens of Ontario more generally.
Many jurisdictions, including other provinces in Canada, the United Kingdom and the United States, deliver a range of services by means of citizen advice centres, or employ technological solutions involving websites or telephone hotlines. In Ontario, more comprehensive, sophisticated and accessible electronic information systems and telephone services, accessible to all citizens of the province, should be developed. LAO should be the hub around which these services are provided.
Another productive line of inquiry should focus on the promotion of private insurance markets for legal expense coverage, especially in family law and civil matters. Prepaid legal plans are not a new concept in Canada. They were considered and endorsed by the Law Society of Upper Canada in 1993, but have yet to make their way into the mainstream in Ontario. The Law Society of Upper Canada and LAO should accord a high priority to promoting the role of legal insurance in Ontario.
Another major theme of this report is greater integration of legal aid services. As empirical studies in various jurisdictions now amply demonstrate, individuals' problems often come in clusters, where one problem triggers a cascade of other problems. The initial problem may be a legal problem, but without early intervention this problem may trigger subsequent problems, legal or otherwise, such as greater demands on other social welfare programs, social housing programs, physical or mental health programs, etc. Early intervention is, in fact, cost-conserving from a broader fiscal perspective, in that it pre-empts these cascades. But more than this, it calls for a more holistic or integrated institutional response where individuals with clusters of interrelated problems are not subject to endless referral processes that are tied to particular institutions (a silo approach) rather than particular individuals' needs and leading to "referral fatigue", which leaves many problems unresolved.
In this respect, a reconceptualization and broadening of the mandate of the clinic system may be an important first step along the path to greater integration in the provision of legal aid and related social services. There is also considerable potential for integrated service delivery by the other staffed components of the system, namely, duty counsel and criminal and family staff offices. LAO's SOAP initiative (Simplified Online Application Portal), which directly involves social service agencies in the certificate applications process, could become an important platform for an integrated referral network.
Better integration of legal services in Ontario's clinics, staff offices and duty counsel offices, coupled with a referral system based on strong partnerships with the social service sector would be a highly desirable goal.
The need for innovative service delivery mechanisms is particularly acute in the area of family justice services. A recent report on Ontario's Family Court Branch of the Superior Court of Justice ("the Mamo Report"), recommended that the Family Law Information Centres (FLICs) should be the entry point into the family justice system. Increasing the range of services and availability of advice lawyers and information referral coordinators, and relaxing the eligibility criteria would enhance the value of FLICs and promote greater integration.
LAO, in determining expansions or improvements with respect to the use of duty counsel, paralegals and staff offices, should accord the highest priority to family law clients.
Section VIII: Future of the Certificate System
Section VIII evaluates the future of the certificate system and in particular the management of the level and structure of the legal aid tariff for legal aid services provided under certificates by the private bar. It makes the case for vesting the tariff management function in LAO and establishing an institutionalized process for adjusting the tariff on a regular basis thereafter.
Tariff rates have a relationship to lawyer participation rates. The number of private lawyers providing legal aid services dropped steadily between 1999 and 2007, notwithstanding an increase in both the tariff and the number of certificates issued during this period. Between 1999-00 and 2006-07, the total number of criminal lawyers has fallen by 14 per cent, and family lawyers by 29 per cent. In both criminal and family law, LAO relies on a small proportion of senior lawyers to provide the bulk of legal aid services. The data also suggest that the legal aid system may not be generating enough new lawyers to replace the more experienced lawyers who now make up the bulk of LAO's service providers. The situation in family law is particularly acute.
Issues involving the future of the certificate system involve three broad categories: a) who should determine the tariff (including hourly rates and hourly time and related allocations); b) how should these determinations be made; and c) how can the certificate system be put in some state of initial equilibrium so that future adjustments are incremental and tractable?
(a) Who Should Determine the Tariff?
Responsibility for determining the tariff should be vested in Legal Aid Ontario, but with the premise that LAO should operate on a fixed, albeit periodically renegotiable, budget. The present arrangement is outmoded and diffuses responsibility between LAO and the Ministry of the Attorney General. Vesting the tariff management function in LAO will: enhance the incentives of LAO management to manage its budget in the most cost-effective fashion possible; encourage LAO to be more flexible, dynamic, and innovative in experimenting with different tariff structures; enhance public accountability for the expenditures; and encourage more timely responses to imbalances between the demand for legal aid and the supply of service providers.
(b) How Should the Tariff be Managed?
Once the tariff rate has been set appropriately, LAO and the Ministry of the Attorney General should commit to a fundamental review of the tariff levels and structures every three years. Forms of arbitration are not recommended, as they would remove control over the budget from the government and control over management from LAO. Instead, every three years LAO and the Ministry of the Attorney General should agree on a Fact Finder who would undertake quantitative analyses with an agreed set of comparators. Choice of appropriate comparators is an important issue. A base-line would be intervening rates of inflation. However, one comparator that is crucial is trends in the take-up rate of certificates issued and trends in the elapsed time between issuance and acknowledgement, which would provide critical information on any disequilibrium between demand for legal aid services and their supply.
The Fact Finder's review would only require analysis since the last triennial adjustment. The periodic review process cannot allow affected stakeholders to relitigate forever the distant past and long-run historical trends that precede the triennial review period, or it will destabilize the review process and render it dysfunctional.
In order to avoid the risk of specially privileging legal aid services provided under certificates relative to legal aid services provided through other delivery mechanisms in a mixed delivery system, it is important that the Fact Finder also examine trends in salary levels for clinic lawyers and staff counsel and recruitment and retention problems being encountered in this context.
Once the Fact Finder's review is completed, it should be published and should form the basis of proposals by LAO to the Ministry of the Attorney General for adjustments to its budget for the next three year rolling budget cycle. The LAO's triennial budget proposals and justifications, following the Fact Finder's review, should also be made public, so that there is full transparency and accountability for LAO's requests and the government's response to these requests.
(c) Achieving an Initial Equilibrium
Before the process of tariff management can be effectively implemented, the system needs to be put into some state of appropriate equilibrium. If the 1987 base rate of $67 had been adjusted for inflation it would have been almost $100 per hour in 2002 (and approximately $110 in constant 2007 dollars). Hence, a base rate significantly lower than this range (perhaps with only two tiers of experience: one to five years, and six years and above) seriously risks further attenuating the commitment of the private bar to the legal aid system and will exacerbate the unfairnesses and inefficiencies in the existing tariff structure. Proposing yet further studies of these issues will be regarded as a serious provocation by the legal aid bar and as yet one more attempt to defer its resolution to some future indeterminate time. A starting point reflecting these orders of magnitude will be a bitter pill for the legal aid bar to swallow given that it falls far below the rates recommended by the Holden-Kaufman Task Force of $105 to $140 in 2000 (or $120 to $160 in constant 2007 dollars) but would nevertheless reflect a very substantial increase to current rates. However, the Holden-Kaufman recommendations are not fiscally or politically feasible (even if justifiable in a first-best world).
Closing the gap between the existing tariff and any defensible baseline tariff, as well as making related adjustments to salaries of staff counsel and clinic lawyers, whether implemented immediately or phased in over some relatively short timeframe (e.g., three years), will entail significant additional government expenditures on the legal aid system, in the context of worrying signs of a softening of the economy. Moreover, these expenditures cannot be viewed in isolation from other features of the system commented on in this review. In particular, relaxing the financial eligibility criteria.
Some of the additional costs entailed in raising eligibility criteria and compensation levels for legal services provided under certificates can no doubt be off-set by some of the service delivery innovations discussed in the report, and by LAO's commitment to productivity improvements of 1 per cent a year over the next five years.
Section IX: Governance
Section IX discusses various governance issues relating to the management of the legal aid system, now largely vested in LAO, which are broadly categorized as internal governance issues and external governance issues.
There is no doubt room for further improvements in internal administrative efficiency. LAO is committed to realizing efficiency/productivity gains of 1 per cent per year over the next five years (almost $20 million) through various improved management strategies, and it should be held to that commitment.
Innovation in Service Delivery Modalities
LAO needs to be much more innovative in experimenting with various service delivery modalities that advance two key objectives: first, fuller integration of legal aid services by moving from a silo-based delivery system to a system that involves more single entry points or one-stop forms of service provision, and second, ensuring that a significant range of forms of legal assistance are available on a non-means-tested basis to all Ontarians.
Innovation in Tariff Structures
If, as proposed, the responsibility for managing the legal aid tariff for the certificate side of the system is remitted in future to LAO, this will call for an innovative and experimental approach to determining the levels and structure of the tariff in various contexts in order to elicit the desired nature, quantity, and quality of services, including experimenting with block fees, setting different hourly tariffs to address supply and demand imbalances, or structuring the tariffs to induce a more holistic response to individual clients' needs or to promote early resolution in legal proceedings.
LAO needs a well-defined process by which lawyers can be removed from panels, with any further action then remitted to the Law Society of Upper Canada. A targeted form of peer review by LAO may well be warranted, where a pattern of client complaints or billing irregularities suggest a need for further scrutiny. A memorandum of understanding between LAO and the LSUC on various aspects of these quality assurance issues would help resolve ambiguities as to respective spheres of responsibility.
With respect to the clinic system more generally, the clinics have resisted efforts by LAO to introduce any system-wide form of quality assurance. This is obviously a sensitive issue. There are enough similarities across functions and client groups with respect to many of the clinics that comparisons are possible, with a view to corrective or remedial measures being taken. Thus, there seems ample room for middle-ground quality assurance strategies with respect to the clinic system.
Big Case Management
Over the years, the cost of big cases has increased steadily and has become the greatest pressure on LAO's criminal certificate budget. While not a significant percentage of the overall legal aid budget, the size of the expenditures on this relatively small number of cases does warrant concerted attention by LAO.
LAO has recently initiated measures to strengthen oversight and improve accountability in the management of big cases. These steps, while appropriate, appear strongly focused on the front end. LAO has not yet instituted mechanisms to monitor the progress of a case as it moves forward, to alert it to problems that may be arising, to enable it to respond to problems as they occur, and importantly, to review the conduct of a case once it has been completed. LAO must have a much stronger role in the process beyond setting a budget at the beginning and paying the accounts at the end. In order to ensure that this monitoring function is properly met, LAO should consider conducting on-going analyses of cases, routinely attending at judicial pre-trial meetings and other important events in the proceeding, and requiring regular detailed reporting from counsel on the status of the case.
It may be that Exceptions Committee cases are well suited to a targeted peer review process. Its role could be expanded to include an evaluation function - at various stages of a proceeding or at the end of the trial - that would review the conduct and outcome of the case.
An Access to Justice Research Function
LAO should undertake a significant research function with respect to exploring the modalities of alternative service delivery (which it has largely not done to date). More controversial is the notion that it should sponsor research on aspects of the broader justice system. While it would be inappropriate for a publicly funded agency such as LAO to act as agent provocateur in lobbying efforts to reform the justice system, it could play a constructive role in such research initiatives. Three things are clear: 1) not nearly enough of this research is being undertaken; 2) LAO has a constructive and important role to play in such research, at the very least as a kind of early warning system of failures in the system, and more ambitiously as a partner with the Ministry of the Attorney General and other justice system partners (including the recently reconstituted Law Commission of Ontario) in sponsoring relevant research; and 3) such research should be routinely placed in the public domain.
The Role of the Board at LAO
A constituency-based board is not recommended. It is crucial that the board adopt a broad client-based public interest perspective on its mandate. The Law Society of Upper Canada should continue to have the prerogative of nominating appointees for the board to help maintain the commitment of the practicing legal profession. The LAO board should also have members with substantial senior management experience in the public or private sectors in managing large multi-million dollar expenditure programs. There has also not been a systematic enough focus on ensuring adequate representation of demand-side interests and perspectives on the board. Here, the addition of senior representatives of agencies such as United Way or the Ministry of Community and Social Services may provide an invaluable additional perspective.
It would be productive for the Attorney General to consider appointing an Advisory Committee on LAO board appointments which would periodically issue public invitations for suggestions or nominations for board appointments and would, in addition, proactively solicit the interest of individuals that would offer the board distinctively valuable perspectives.
Transparency and Accountability
The Attorney General is ultimately responsible for all board appointments. LAO must publish an annual report setting out its activities for the year and its financial statements, which are subject to audit by the Auditor General. LAO negotiates periodically a five-year Memorandum of Understanding (MOU) with the Ministry of the Attorney General, and it must submit its proposed budget for approval each year. In the event that the Attorney General forms the view that the board of directors is failing to discharge its duties, he or she has powers under the Legal Aid Services Act to disband the board and appoint an Administrator. It is not clear that additional forms of transparency or accountability are appropriate.
The Community Legal Clinic System
There is a question of whether the clinics in fact add up to a coherent structure for the delivery of poverty law services in Ontario. Determining where the clinics fit in a broader strategic conception of the legal aid system is likely to become an even more significant challenge in the future, which would entail a stronger focus on both service integration and the provision of some range of legal services on a non-means-tested basis to all Ontarians. In pursuing both of these objectives, the clinics become a critical building block for this more expansive conception of legal aid services.
Student Legal Aid Services Societies (SLASS)
Nurturing the relationship between LAO and SLASS, and developing a more strategic appreciation of where SLASS fits into the broader landscape of legal aid services in the province, would seem an important task for LAO going forward. At the very least, LAO should not treat SLASS less favourably than the clinics in budgetary allocations; a modest annual grant to enable senior personnel from the SLASS to meet and discuss best practices and common challenges would also recognize their unique role in the legal aid system.
Pro Bono Law Ontario
More strategic leveraging of LAO's resources, through partnerships with non-profit and community organizations like PBLO, seems a productive direction for LAO to explore in the future.
The Law Foundation of Ontario
There is room for a more collaborative relationship between LAO and the LFO in developing some form of financial forecasting model. Apart from forecasting revenues from this source more accurately, the other alternative for LAO is to maintain a contingency reserve fund as a cushion against short-term revenue and certificate fluctuations.
The Law Society of Upper Canada
There are ambiguities with respect to the roles of LAO and the LSUC in maintaining appropriate quality standards. These ambiguities need to be resolved at an early stage going forward, perhaps through negotiation of an MOU between LAO and the LSUC. In addition, the LSUC has recently assumed responsibility for regulating paralegals. Paralegals are an important current source of legal assistance in the provision of legal aid services, and it is incumbent on LAO and the LSUC jointly to ensure that all potential opportunities for full utilization of the invaluable human resources they offer are maximized.
Ministry of the Attorney General
The most critical relationship is the financial relationship between LAO and the Ministry of the Attorney General and, through the Ministry, the Cabinet and the Government of Ontario. In the interests of transparency and accountability, following triennial reviews of eligibility criteria, tariffs and staff salaries, the business case presented by LAO for additional expenditures should be made public, so that the citizens of the province can evaluate whether the government's response to the case is appropriate or otherwise.
The Federal Government
The federal government has primary or major jurisdictional responsibilities in criminal law, family law, and immigration law; yet over the past decade or so, it has taken an increasingly limited view of its responsibility for ensuring access to justice in these areas of law, reflected in declining financial contributions to the legal aid system in Ontario in real terms. The provincial government should aggressively press the federal government to meet its responsibilities and to bear a significant share of the additional fiscal commitments required to underwrite a healthy and sustainable legal aid system in Ontario.
Realistically, not all of the recommendations can be implemented at once. Some require immediate attention, some attention in the medium term, and others are more in the nature of long-term strategic directions that LAO should pursue over time. There are seven key themes that arise from the analysis in this Report.
First, management of the legal aid system cannot be approached in isolation from the broader justice system and must be viewed as an integral part of a broader strategy of progressive and incremental reform of the justice system at large. Legal aid resources should be expended in ways that facilitate more timely and more effective resolution of disputes. In turn, reforms to the broader justice system must also be pursued that facilitate this objective.
Second, financial eligibility criteria need to be significantly raised to a more realistic level that bears some relationship to the actual circumstances of those in need. They should be simplified and made more flexible so that services could be provided along a sliding scale of eligibility with broadened rules for client contributions. The criteria also need to be brought into line with anti-poverty measures used elsewhere in the social welfare system and adjusted on a regular basis.
Third, some range of legal aid services should be provided to all Ontario citizens on a non-means-tested basis, in particular summary forms of advice and assistance, so that middle-class Ontarians develop a material stake in the well-being of the legal aid system.
Fourth, LAO needs to develop a strategic focus on mechanisms for facilitating greater integration in the delivery of legal aid services, minimizing the attachment of particular legal aid services to particular classes of institutions or classes of problems (the silo approach to legal aid service delivery), and enhancing single entry point or one-stop shopping approaches to the need for legal aid services. Reconceptualizing the mandate of the clinics and determining the role of the clinics in a broader strategic conception of the legal aid system would be a useful starting point.
Fifth, in order to facilitate the realization of some of the foregoing objectives, LAO must be much more aggressive and enterprising in experimenting with innovative forms of service delivery, such as comprehensive, sophisticated and accessible electronic information systems and hotline services, and it must be much more strategic in maximizing the considerable potential of existing service delivery mechanisms, particularly staff duty counsel, staff offices and paralegals.
Sixth, the legal aid tariff needs to be significantly raised in the immediate future, along with salaries for staff lawyers in the clinic and duty counsel systems, and a system of periodic adjustments thereafter institutionalized and incorporated into the budgetary process governing the financial relationship between LAO and the Ministry of the Attorney General. LAO should be responsible for the management of the tariff to encourage a flexible and innovative management approach that is responsive to imbalances in the system.
Seventh, even with a much higher level of commitment to innovation in service delivery by LAO, most of the other objectives, especially the expansion of financial eligibility criteria for legal aid assistance on the demand-side, and redressing the under-compensation of service providers, on the supply-side, cannot be fully realized without a substantial infusion of additional financial resources into a system that has been chronically under-funded for decades and which compromises our commitment to the ideals of access to justice and the rule of law, which as a civilized, compassionate and prosperous society should be one of our most important shared common values or assets.