Section II: Summary Of The Major Findings Of The 1997 McCamus Report
I. DEVELOPMENT OF THE LEGAL AID SYSTEM IN ONTARIO
a) Historical Framework
The first major shift in the delivery of legal aid services in Ontario began in 1967. Prior to that time, the delivery of legal assistance to low-income Ontarians was viewed as a charitable service by the legal profession. The three key principles underlying the introduction of the Legal Aid Act, 1967 were: 1) the delivery of legal aid services was to be based on the judicare model, whereby certificates would be issued to members of the private bar providing legal aid services and paid by the government; 2) the enabling legislation conferred an entitlement to legal aid to anyone who met the eligibility criteria; and 3) it was to operate as a partnership between the province and the Law Society of Upper Canada, with the Law Society responsible for the day-to-day administration. The governance framework, funding structure, and delivery models established by the Legal Aid Act, 1967 continued to operate for almost three decades.
b) Signing of the Memorandum of Understanding
By the 1990s, the soaring costs of legal aid became a significant concern to the Ontario government. As a result, in 1994, in the context of a deep recession in the province and a growing government deficit, the Ontario government announced that the funding of legal aid certificates was to be subject to a fixed annual government contribution. At about the same time, the federal government started to provide its financial contribution to legal aid in fixed amounts unrelated to the actual need in the provinces and territories, and withdrew its funding of certain areas of law, such as refugee matters, as well as Northern legal services administered by the Nishnawbe-Aski Legal Services Corporation.
The result of these financial factors was the Memorandum of Understanding (MOU) entered into by the Law Society and the provincial government in September 1994. The MOU required the Ontario Legal Aid Plan (OLAP), for the first time since its inception, to operate within a predetermined funding level for certificates. The MOU also set out a four-year funding commitment.
c) Implementation of the MOU
In order to implement the new funding restrictions required by the MOU, the OLAP imposed service cuts in 1994, 1995, and 1996, which resulted in 150,000 fewer certificates being issued per year. The availability of legal aid services for non-family civil law was severely restricted. In order to effect further reductions, prioritization of the types of services offered was also undertaken in the areas of family law, criminal law and refugee and immigration law. A justice strategy was also established to help lower legal aid costs, which included diversion programs and early Crown charge screening. In 1996 the Law Society eliminated all block-fee billing in criminal matters, introduced maximum billing caps on certificates, and implemented stricter client financial eligibility requirements.
II. THE ESTABLISHMENT OF THE 1997 LEGAL AID REVIEW
On December 13, 1996, then-Attorney General Charles Harnick, established the Ontario Legal Aid Review ("the Review"), an independent task force to be chaired by Professor John McCamus, former Dean of Osgoode Hall Law School. This was the first comprehensive review of Ontario's legal aid system since the modern program's inception. 1 The mandate of the Review was to undertake a thorough analysis of the existing legal aid system in the province, and to make recommendations as to its future direction. It was directed to study the implications of capped funding on the system's future design, administration and governance, and to identify the prevailing common legal needs of low-income Ontarians. To accomplish this, the Review distributed a consultation paper, and received 170 written submissions in response. In addition, a number of background papers were commissioned to examine current unmet legal needs. 2 The result of the Review was the publication of the 1997 Report, "A Blueprint for Publicly Funded Legal Services" ("the McCamus Report"). The McCamus Report laid the groundwork for the Legal Aid Services Act, 1998 and the establishment of Legal Aid Ontario. The Report formulated its overall findings in ninety-two recommendations for reforming Ontario's legal aid system.
III. THE 1997 LEGAL AID REVIEW'S FINDINGS
a) The Legal Needs of Low-Income Ontarians
The Review found that the lives of low-income people are regulated in ways that are overarching, complex, intersecting, and intrusive. 3 As many of the submissions to the Review iterated, low-income people require access to legal representation when the law intrudes in their lives in extreme ways, i.e. child apprehension, incarceration, or involuntary treatment. The Review reached several key conclusions regarding the legal needs of low-income Ontarians, including:
- low-income individuals have legal needs which differ from those with resources;
- factors which may contribute to a person's financial need, such as disability, age, or race, can result in specific legal needs; and
- the allocation of legal aid resources should rest on the development of mechanisms to assess the particular and changing legal needs of low-income Ontarians.
IV. A FRAMEWORK FOR SETTING PRIORITIES FOR LEGAL AID SERVICES
a) The State's Obligation to Provide Legal Aid
The Report noted that a legal aid system operating within a capped budget must undertake priority-setting exercises in order to determine how the budget will be allocated between the competing claims.
The McCamus Report examined normative justifications for providing legal aid, and determined that the state has an obligation in various circumstances to facilitate access to law. Legal aid is one, but not the only, means for meeting that obligation. The Report also set out the state's legal obligations under the Canadian Charter of Rights and Freedoms, as well as the Young Offenders Act 4, the Criminal Code, and the International Covenant on Civil and Political Rights, to provide legal counsel in certain contexts. The Report found that the Charter may require that areas of law other than criminal law be funded by legal aid in the future.
b) Priority Setting: the Recent Experience
At the time the Review was undertaken, priority-setting for the legal aid system was done in two separate contexts: certificates and clinics. For the certificate side of the system, the Legal Aid Committee, subject to review by the Law Society, was responsible for setting the priorities of the legal aid plan. Following the signing of the MOU, a prioritization of services in the areas of criminal law, family law and immigration and refugee law was done in order to adjust to the capped funding. For the clinic system, each clinic's community board sets its priorities. The clinics have operated within capped budgets since their inception, and consequently had developed a great deal of experience with priority-setting and adjusting their services in response to demand.
c) Towards a New Model for Priority-Setting
The Report foresaw that priority-setting would continue to be a major focus for those overseeing the legal aid system if the system were to continue to operate within a capped budget. The Report recommended that the following eight themes be considered when the legal aid system engages in priority-setting:
- 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 "risk of incarceration test" in setting service priorities;
- The importance of integrating delivery-model issues within the priority-setting process;
- The importance of focusing the priority-setting debate on client impact;
- The importance of using resources strategically to facilitate access to law; and
- The importance of priority-setting being subject to revision in light of experience in an evolving social and legal environment.
d) The Legal Aid System in Context
A central tenet of the McCamus Report is that the legal aid system must be regarded as an integral component of the overall justice system in Ontario. The Report emphasized that in envisioning an improved model for the delivery of legal aid the existing justice system should not be viewed as static.
The Report found that legal aid has a role to play in instigating and propelling legal reform. The Report discusses the proposed changes in criminal, family, refugee and civil law that came out of the research papers commissioned for the Review. 5 One incentive for such reforms to be implemented is the cost-savings that would accrue to legal aid as a result. The Report concluded that for legal reform efforts to be successful, there must be an ongoing focus on incremental change through continuous design, experimentation, implementation, and evaluation exercises. 6
e) The Choice of Delivery Models for Legal Aid
The McCamus Report identified the need for the future legal aid governance body to be willing to explore and experiment with a wide variety of delivery models.
The Report made the case for greater diversity and creativity in the delivery models of legal aid services in Ontario, taking into account the specific needs of individual clients, the types of legal services being provided, and the geographic locations being served. The ultimate goal of this approach is to obtain the maximum benefit from the finite resources available. Several principles were identified to guide the design of the new system, including:
- the need to provide a greater mix of legal services 7 to help reduce the divide between full legal representation and no legal representation, and thereby assist a greater percentage of the public with their legal problems;
- delivery models should be reflective of the legal, geographic and client context;
- it can be beneficial for the delivery models to be in competition with one another;
- quality considerations must always be kept in mind; and
- independent evaluations of these programs should be conducted intermittently.
V. A BLUEPRINT FOR LEGAL AID SERVICES IN ONTARIO
a) Renewing the Commitment to Legal Aid
The McCamus Report emphasized that the successful implementation of any reforms to the legal aid system would be predicated on the ability of the government and the legal aid system to establish shared goals pertaining to the fundamental purpose of legal aid. One such goal identified by the Report is access to justice. That is, the fundamental objective of the legal aid system should be to promote equal access to justice by identifying and meeting the diverse legal needs of qualifying individuals and communities. It was also thought necessary for there to be a commitment by the government to the principles of independence, funding and systemic reform in relation to the legal aid system.
The legal aid system itself needs to have a special commitment to the following areas: priority setting in a needs-based system, quality of service, cost-effectiveness and accountability, service delivery models, law reform, diverse needs, and governance.
One of the key considerations of the Review was whether the Law Society should continue to have a governing role in the administration of Ontario's legal aid plan. The Report considered the governance of legal aid in other jurisdictions in Canada, as well as the United States, Australia and the United Kingdom. The Report outlined the following goals and objectives in making a case for change in governance of the legal aid plan in Ontario: independence; accountability for efficient use of public funds; obtaining adequate resources for legal aid; ability to deliver quality services in a broad range of areas of the law; capacity to promote confidence in the legal aid system; responsiveness to client needs; efficient governance; coordinated management of the entire legal aid system; and innovation and experimentation. The Report recognized that it is difficult for the Law Society to insulate itself from the interests of the legal profession. The Law Society would thus face special challenges in implementing reforms to the judicare system.
Taking all of the above-listed goals into consideration, the McCamus Report recommended that the governance of the legal aid system be transferred from the Law Society to an independent statutory agency. This new agency could more effectively: understand, assess and respond to the broad range of legal needs of low-income Ontarians; integrate management and financial expertise at the highest level of governance; conduct a greater level of experimentation and innovation with delivery models; coordinate the certificate system and clinic system; and promote confidence in the legal aid system. The Report recommended that the mandate of the agency be set out in the enabling legislation, which should require that the agency 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 also need to ensure adequate multi-year funding. The government must also, however, allow the agency to determine its own method of priority-setting and service delivery in providing the mandated services.
The Report outlined a strategy to implement the proposed governance changes, including establishing the enabling legislation, identifying the appropriate individuals to serve on the inaugural board, and working with the Law Society to ensure a smooth transfer to the new administration.
The Report concludes with a summary of its ninety-two recommendations.
- The previous study was the Report of the Joint Committee on Legal Aid, tabled in April 1965.
- Background Papers:
- Current Utilization Patterns and Unmet Legal Needs by William A. Bogart, Colin Meredith and Danielle Chandler
- Special Legal Needs of People with Mental Disabilities by Patti Bregman
- Legal Aid, Aboriginal People, and the Legal Problems Faced by Persons of Aboriginal Descent in Northern Ontario by Donald Auger
- Legal Aid Needs of Aboriginal People in Urban Areas and on Southern Reserves by Jonathan Rudin
- Normative Justifications for the Provision of Legal Aid by David Dyzenhaus
- The Legal and Constitutional Requirements for Legal Aid by Nathalie Des Rosiers
- Legal Aid Delivery Models by Susan Charendoff, Mark Leach and Tamara Levy
- An Economic Analysis of Legal Aid Delivery Mechanisms by Hamish Stewart
- Quality Control and Performance Measures by Sandra Wain
- Legal Aid and Criminal Justice in Ontario by Alan N. Young
- The Provision of Legal Aid Services Under the Young Offenders Act by Ron Levi
- Case Study in the Provision of Legal Aid: Family Law by Brenda Cossman and Carol Rogerson
- Poverty Law-A Case Study by Janet Mosher
- Report on Immigration and Refugee Law by Audrey Macklin
- Governance of Legal Aid Schemes by Martin L. Friedland
- A Cross-Jurisdictional Study of Legal Aid: Governance, Coverage, Eligibility, Financing, and Delivery in Canada, England and Wales, Australia, New Zealand, and the United States by David Crerar
- At 59.
- Now the Youth Criminal Justice Act.
- See note 2.
- At 103.
- For example, with public legal education, duty counsel, supervised paralegals, community legal clinics, judicare, and block contracting..