Section I: Introduction
I accepted an invitation in August of 2007 from then-Attorney General of Ontario, Michael Bryant, to undertake a review of the legal aid system in the Province, with a view to reporting by March 2008. In this task I succeeded Professor John McCamus of Osgoode Hall Law School and Chair of the McCamus Task Force on Legal Aid that reported in 1997. 1 Professor McCamus had been appointed to undertake a review of the evolution of the legal aid system in the decade following his report, about a year earlier, but his appointment by the Attorney General as Chair of Legal Aid Ontario in July of 2007 made it inappropriate for him to continue a review of an agency which he now headed. The Honourable Chris Bentley was then appointed Attorney General of Ontario in October 2007.
My terms of reference required me to conduct a review of legal aid in Ontario since 1999, including a consideration of the Legal Aid Services Act, 1998 2 and its 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.
My advice and recommendations will reflect the following principles:
- Legal Aid Ontario's mandate is to promote access to justice for low-income Ontarians by providing high quality legal aid services in a cost-effective and efficient manner;
- Legal Aid Ontario operates at arm's length from the government;
- Legal Aid Ontario must be accountable to the public through the government for the quality of legal services and expenditure of public funds;
- The management and direction of Legal Aid Ontario must demonstrate expertise in the law and the legal needs of low income Ontarians, and have knowledge and capacity of business, finance, and management principles commensurate with a public institution of its size and importance; and
- Lawyers performing legal aid work are a valued and important component of a successful legal aid system.
By way of background, I was the Research Director of the McCamus Task Force and was responsible for commissioning and overseeing the completion of 16 background studies of various aspects of the legal aid system in Ontario and assisting with the writing of the McCamus Task Force Report. In 2000, Legal Aid Ontario commissioned Robert Holden, former Director of the Law Society of Upper Canada's Legal Aid Program, and the Honourable Fred Kaufman, former member of the Quebec Court of Appeal, to undertake a review of the level and structure of the legal aid tariff for the certificate system in Ontario. They in turn retained me as Research Director for their study. With the help of various technical staff and research assistants, I prepared background material and analysis, in particular various quantitative analyses of the evolution of the tariff relative to various comparators.
After taking up my current assignment in August of 2007, I read submissions that had been made to Professor McCamus, along with notes of meetings which he had held with various stakeholder groups. I also extended the time for the filing of written submissions to me until December of 2007, and extended an invitation to all stakeholder groups to meet with me in person if they so wished (an invitation that many accepted). Submissions received and meetings held by Professor McCamus and by me are listed in an Appendix to this Report.
In this Report, in Section II, I briefly set 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. In Section III, I review 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. In Section IV, I outline the notable achievements of Legal Aid Ontario (LAO) since it began operations in 1999. In Section V, I summarize the major criticisms and proposals for reform of the current legal aid system made either to Professor McCamus or myself in the course of written submissions by or meetings with various stakeholders.
With these sections as a backdrop, I then turn in Sections VI, VII, VIII and IX of the Report to an evaluation of future challenges facing the legal aid system in Ontario. In Section VI, I set out, by way of framing the ensuing discussion, the major rationales for a public commitment to enhancing access to justice and make 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. In Section VII, I go on to evaluate a range of either existing or potential alternative delivery mechanisms and seek to establish the need for a much higher level of innovation and experimentation by LAO in the mixed delivery system that it oversees. In Section VIII, I evaluate 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, and make the case for vesting the tariff management function in LAO and establishing an institutionalized process for adjusting the tariff on a regular basis thereafter. In Section IX, I turn to various governance issues relating to the management of the legal aid system, now largely vested in LAO, which I broadly categorize as internal governance issues and external governance issues. In Section X, I briefly conclude this Report by emphasizing seven key themes that I believe emerge from it.
I conclude this introduction with some richly warranted acknowledgements: to Juliet Robin and Miranda Gass-Donnelly, both counsel with the Policy Division of the Ministry of the Attorney General for Ontario, who have provided invaluable assistance and insights in every phase of my Review; to Judy Hayes also counsel in the Policy Division of the Ministry of the Attorney General, for expert and timely research assistance; to Nye Thomas, Director, Strategic Research, LAO, for his patience, timeliness and expertise in responding to numerous requests for information; to LAO for an extensive submission to me; and to all the groups and individuals who in written submissions and meetings with me candidly shared their views as to the strengths and limitations of the legal aid system in Ontario, and the challenges that lie ahead as we collectively strive to vindicate the ideals of access to justice and the rule of law in this province. Their views have critically shaped most of the important lines of thinking in the Report that follows.