LEGAL AID SERVICES ACT, 1998 LOI DE 1998 SUR LES SERVICES D'AIDE JURIDIQUE
ASSOCIATION OF COMMUNITY LEGAL CLINICS OF ONTARIO
FAMILY BAR OF NORTHUMBERLAND COUNTY/NORTHUMBERLAND COMMUNITY LEGAL CENTRE
ASSOCIATION DES JURISTES D'EXPRESSION FRANÇAISE DE L'ONTARIO
ADVOCACY RESOURCE CENTRE FOR THE HANDICAPPED
COUNTY AND DISTRICT LAW PRESIDENTS' ASSOCIATION
ABORIGINAL LEGAL SERVICES OF TORONTO
COUNCIL OF ELIZABETH FRY SOCIETIES OF ONTARIO
ONTARIO LEGAL AID PLAN AREA DIRECTORS' ASSOCIATION
CANADIAN COUNCIL FOR REFUGEES COALITION FOR JUST IMMIGRATION AND REFUGEE POLICY
FEDERATION OF METROPOLITAN TORONTO TENANTS' ASSOCIATIONS
CANADIAN BAR ASSOCIATION -- ONTARIO
CONTENTS
Tuesday 17 November 1998
Legal Aid Services Act, 1998, Bill 68, Mr Harnick /
Loi de 1998 sur les services d'aide juridique,
projet de loi 68, M. Harnick
Ministry briefing
Ms Nancy Austin, director, legal aid project
Law Society of Upper Canada
Mr Derry Millar
Mr Robert Armstrong
Association of Community Legal Aid Clinics of Ontario
Ms Ernestine van Marle
Mr Hugh Tye
Ms Ivana Petricone
Family Bar of Northumberland County/Northumberland Community Legal Centre
Mr Wilfred Day
Criminal Lawyers' Association
Ms Katherine McLeod
Association des juristes d'expression française de l'Ontario
M. Tory Colvin
M. Gérard Lévesque
Advocacy Resource Centre for the Handicapped
Ms Giselle Cole
Mr David Baker
County and District Law Presidents' Association
Mr David Sherman
Aboriginal Legal Services of Toronto
Mr Jonathan Rudin
Ms Kimberly Murray
Council of Elizabeth Fry Societies of Ontario
Ms Elaine Bright
Ontario Legal Aid Plan Area Directors' Association
Ms Ramona Wildman
Ms Leslie Ault
Mr Robert Buchanan
Canadian Council for Refugees; Coalition for Just Immigration and Refugee Policy
Mr Francisco Ricco-Martinez
Ms Avvy Go
Federation of Metropolitan Toronto Tenants' Associations
Ms Barbara Hurd
Mr Hank Mulder
Canadian Bar Association -- Ontario
Miss Virginia MacLean
Mr Marshall Drukarsh
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
Chair / Président
Mr Jerry J. Ouellette (Oshawa PC)
Vice-Chair / Vice-Président
Mr E.J. Douglas Rollins (Quinte PC)
Mr Dave Boushy (Sarnia PC)
Mr Bruce Crozier (Essex South / -Sud L)
Mr Peter Kormos (Welland-Thorold ND)
Mr Gerry Martiniuk (Cambridge PC)
Mr Jerry J. Ouellette (Oshawa PC)
Mr David Ramsay (Timiskaming L)
Mr E.J. Douglas Rollins (Quinte PC)
Mr R. Gary Stewart (Peterborough PC)
Mr Bob Wood (London South / -Sud PC)
Substitutions / Membres remplaçants
Ms Annamarie Castrilli (Downsview L)
Clerk / Greffière
Ms Tonia Grannum
Staff / Personnel
Mr Avrum Fenson, research officer, Legislative Research Service
The committee met at 1006 in room 151.
LEGAL AID SERVICES ACT, 1998 LOI DE 1998 SUR LES SERVICES D'AIDE JURIDIQUE
Consideration of Bill 68, An Act to incorporate Legal Aid Ontario and to create the framework for the provision of legal aid services in Ontario, to amend the Legal Aid Act and to make consequential amendments to other Acts / Projet de loi 68, Loi constituant en personne morale Aide juridique Ontario, établissant le cadre de la prestation des services d'aide juridique en Ontario, modifiant la Loi sur l'aide juridique et apportant des modifications corrélatives à d'autres lois.
The Vice-Chair (Mr E.J. Douglas Rollins): All right, if we could have the standing committee on administration of justice come to order.
MINISTRY BRIEFING
The Vice-Chair: Our first presentation will be a technical briefing from Nancy Austin, director of the legal aid project. You'll make your presentation and then we'll divide the remaining time of the hour up between the three parties for comments.
Ms Nancy Austin: I propose to do a brief summary of the 10 parts of the act and then go through in detail, highlighting the areas which we have received comments on from various organizations.
Part I of the act sets out the purposes of the act and the definitions.
Part II establishes the corporation Legal Aid Ontario, the transitional board, and requires the law society to assist in the transition from the Ontario legal aid plan to the new Legal Aid Ontario.
Part III sets out the services which can be provided by Legal Aid Ontario and how those services can be provided, the eligibility for services and details of clinic funding and operation.
Part IV deals with copayment provisions and cost-recovery provisions. That is to say, it will allow the corporation to require legal aid applicants to contribute to the cost of their legal aid services if they have the financial means to do so, and it will allow the corporation to recover costs, either court costs awarded or costs pursuant to the copayment agreement.
Part V sets out the corporation's powers, and that basically allows it to operate. It will have the powers of a natural person in a body corporate.
Part VI sets out provisions to allow for a temporary administrator should the board of directors of the plan fail to perform their duties appropriately. The section would require the court to make that determination, not the government, and it would be a temporary administration or trusteeship subject to extensions, again decided by the court.
Part VII of the bill sets out general protections for the board and the staff of the agency in pursuing its duties and also sets out how clients' privacy will be protected.
Part VIII: Our amendments to the current Legal Aid Act will remove the 5% clawback that lawyers to date have been paying on legal aid certificates and will remove the lawyers' levy, which is the 50% of administrative costs that the lawyers have been contributing to legal aid while they have been running the plan.
Part IX deals with consequential amendments, mainly changing the name of the act from the Legal Aid Act to the Legal Aid Services Act, 1998, in other statutes in which the Legal Aid Act is referred to.
Part X lists the dates that certain sections of the act come into force.
I will now start with part I. The purposes of the act are for the most part those outlined by Professor McCamus in the Ontario Legal Aid Review which was released in September 1997. The main purpose of the act is "to promote access to justice throughout Ontario for low-income individuals by...
"(a) providing consistently high quality legal aid services in a cost-effective...manner to low-income individuals throughout Ontario;
"(b) encouraging and facilitating flexibility and innovation in the provision of legal aid services, while recognizing the private bar as the foundation for the provision of legal aid services in the areas of criminal law and family law and clinics as the foundation for the provision of legal aid services in the area of clinic law."
It goes on to ensure that gaps in the system are addressed, that the needs of legal aid applicants in the province are addressed, and it states that the corporation will be independent of the government of Ontario, while being a schedule 3 agency, accountable financially to the government.
The definition section: For the most part the definitions are the same ones used in the Legal Aid Act or used in practice, if not specifically defined in the Legal Aid Act. Some new definitions are "clinic law," which basically identifies the previous poverty law, and "person responsible," which identifies current practice of when another person is responsible to assist a person in contributing to copayment in legal aid.
Section 4 sets out the objects of the corporation. They match the provisions of section 1, which set out the purpose. Again, it's establishing and administering a cost-effective and efficient system for high-quality legal aid services; establishing priorities and policies so that those services can be provided; and facilitating coordination among the different methods of service. That would allow Legal Aid Ontario to work with other service-providers to ensure that there is a seamless way to apply for legal aid, receive legal aid and receive other services which could complement legal aid services, and Legal Aid Ontario is also to advise the Attorney General on all aspects of legal aid services in the province of Ontario.
In section 3 -- slightly out of order; sorry -- the key is that the corporation is established and that it is not a crown agent. This is to ensure the independence of the corporation while ensuring it's accountable for public funds.
Section 5 sets out the qualifications of the board of directors and requires them to have staggered terms so that the board will have a continuity of knowledge at any given point in time.
Mr Peter Kormos (Welland-Thorold): Point of order, Chair. My apologies to you, Ms Austin.
Chair, I've read the bill. I've taken advantage of ministry briefings by Ms Austin and her colleague. I know the government members have read the bill and have been similarly briefed. I know Ms Castrilli has read the bill and has similarly been briefed. I'm wondering if we can get down to questions to Ms Austin and members' statements and responses. It seems to me to be a waste of Ms Austin's time for her to be going through this bill in a manner which she has already done with any conscientious member of the committee because they've had the briefing with her, certainly any government member, because undoubtedly they've read the bill and can similarly understand what Ms Austin is speaking of. Perhaps it would be more relevant to pose specific questions or make specific comments for Ms Austin to respond to. I'm simply talking about a more efficient use of our time.
The Vice-Chair: She has been afforded the chance to go ahead with the 20 minutes, even though you may not agree with her presentation.
Mr Kormos: No, the presentation is fine. I have no quarrel with it.
The Vice-Chair: We afforded her the 20 minutes. I think we need to give her that length of time.
Mr Kormos: She's not a member of the Legislature; she's not a member of the committee.
The Vice-Chair: I know, but with all due respect, this is what the briefing is for. It's her technical briefing that she's giving us. Whether you agree with it or have known it before, it still is her ability to do that.
Ms Annamarie Castrilli (Downsview): Mr Chair, let me say we're now in committee. This bill has been through first reading, through second reading. We have had ample debate in the Legislature to date. We've had numerous briefings. We've heard the Attorney General on this bill. We've heard the parliamentary assistant. We've heard many people who have commented on the substance and the technical aspects of the bill as well.
I wonder, in the interests of getting to the meat of the matter, which is to discuss the points that may be contentious in the legislation and not wasting everyone's time with reciting what we already know, whether it would be appropriate to seek unanimous consent to dispense with the technical briefing and proceed to a more substantive discussion of the bill.
The Vice-Chair: My ruling is that she has been allowed the time to make her presentation. We will continue with that.
Ms Castrilli: But I've sought unanimous consent, Chair.
The Vice-Chair: Is there unanimous consent?
Mr Gerry Martiniuk (Cambridge): No, we've accepted the report. This is a briefing period pursuant to this committee's decision. It should be carried on.
Mr Kormos: I didn't support that report.
The Vice-Chair: Would you please continue, Ms Austin.
Ms Austin: Section 7 of the bill deals with setting up advisory committees which would advise the board of Legal Aid Ontario. They are mandated in the areas of criminal, family and clinic law, but the board has the power to set up committees for any other area of law in which it feels the need to be advised. The Lieutenant Governor in Council can also require other committees to be set up if it finds it necessary.
Section 8 sets up the audit committee and the clinic committee. Those would be comprised of members of the board of LAO.
Sections 9 and 10 set up the transitional board, which will run Legal Aid Ontario from royal assent of the bill through to March 31, 1999, following which the transitional board will continue until the full board of Legal Aid Ontario is named. The full board of Legal Aid Ontario can be named as early as April 1, 1999. During the period from royal assent of the bill until March 31, the law society runs the operational day-to-day legal aid plan. Throughout this, the law society is to assist in the transition and ensuring that services continue to be provided.
Under Part III of the bill, services, sections 12 and 13 establish the priorities and the factors that Legal Aid Ontario must consider when setting the priorities for provision of services. Section 13 sets out the areas of law in which services can be provided. It mandates the corporation to provide legal aid services in the areas of criminal law, family law, clinic and mental health law, but Legal Aid Ontario has the discretion to provide legal services in any other area of civil law unless a regulation states it may not.
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Section 14 lists the ways in which services can be provided. It is not an exclusive list. They can be provided by way of certificate, through lawyers, through clinics, authorization of other service-providers, establishing legal aid staff offices etc.
Sections 15 through 18 basically set out that there will be areas of the province in which legal aid will be provided, and set out eligibility for provision of legal services.
Sections 19 through 22 deal with staff offices, duty counsel, student legal aid societies and provision of certificates. It sets out the details for each of those areas of provision of services. That basically follows current practice.
Again, sections 24 through 27 follow current practice for applying for a certificate, issuing a certificate, provisional certificates and group certificates.
Sections 33 through 39 deal with the role of clinics in the system and monitoring of clinics by Legal Aid Ontario. Clinics are clearly identified in this bill as a major method of providing clinic law services, and later on in the bill you will note that their funding is guaranteed at current levels for the first three years of operation of Legal Aid Ontario.
Sections 40 through 49 deal with cost recovery and collection of costs. Again, they follow current practice in the plan.
In part V, the corporation is provided with the powers of a natural person. That gives it the ability to contract to hire employees, fire employees, enter into leases, enter into contracts for provision of other services. One qualification on that is, when investing, it must follow the guidelines for a prudent investor, similar to that under the Trustee Act.
Section 57 allows it to enter into agreements with other governments to co-operate in providing legal aid services and access to information. Again, that mimics the current practice and allows it to set fees for non-legal services. That would be publicly legal education and any non-legal services provided.
Section 59 sets out the duties of the board for setting policy directions, all within the financial resources of the corporation. The corporation is expected to live within its financial means.
Sections 72 through 80 outline the powers of the trustee. The trustee can only be appointed by order of the court if the court is satisfied that the appointment is in the public interest and is needed to ensure the continued and effective provision of legal aid services.
The other sections that I will just flag for you -- the rest is mainly technical. Section 81 provides that the French Language Services Act, which does not currently apply to the Ontario legal aid plan, will apply to Legal Aid Ontario as of April 1, 1999.
Section 91 ensures that the corporation will set up a quality assurance program -- this is read in conjunction with section 59 -- to ensure a high level of service is provided. It's a management tool that is necessary for the corporation in that section, and also protects solicitor-client privilege.
Section 95 sets out the offences under the act, and section 96 lists the regulatory powers which, although set out throughout the act, are gathered in one place at the end for ease of reference.
That's a summary of the bill. We have received some suggestions from different parties on ways that the bill could be changed, as has this committee.
The Vice-Chair: Thank you very much. We'll start now with the opposition for a period of approximately 20 minutes, if they use that time.
Ms Castrilli: We've already had one day of hearings on this bill in Thunder Bay yesterday, and it's been interesting to hear what ordinary people have to say, what practitioners have to say, what people who work in the area have to say with respect to this legislation. It won't surprise you that their concerns echo what we have raised in the House with respect to this bill.
Let me start with some of the positive aspects of this bill. It's obvious that legal aid needed some restructuring. The profession and certainly the public have asked for a redimensioning of legal aid. There have been difficulties in terms of funding, which has been decreased by successive governments. There have been, certainly, difficulties with respect to getting legal aid certificates. We've seen that in the last year alone some 50% of certificates have been issued. There's been a cut of 50%, which has really been quite detrimental to people.
There needed to be something, and one of the things that was suggested was the creation of a new entity that would be at arm's length from government and certainly from the legal profession, which was accused of having some conflict in administering the legal aid plan. So we have the formation of a new corporation, Legal Aid Ontario.
As far as that goes, it's a good concept. What troubles us with respect to the legislation and the corporation, and what has been highlighted in the comments so far from the people that we've heard, is that what we've really erected is a shell, and until we know how that shell is going to be staffed, how that shell is going to be funded, it remains just that, a shell.
You may recall that Professor McCamus, in his introduction to the report that he was commissioned to make, indicated that the legal aid system must provide certain guarantees for people at the lower end of the scale in order to be able to provide equal justice for everyone. He sets out at great length some of the goals of the legal aid system, which Ms Austin has outlined for us. But in addition he states in his report very clearly that in return the government must commit itself to ensuring adequate multi-year stable funding for the system. Quite frankly, there's nothing in this legislation that does that. In fact, it's quite the contrary.
The sections set out in the act with respect to clinics only commit the government to three years at best. The funding, as you know, is frozen at current levels, which is really quite difficult for people to accept when you understand that the need to access justice is increasing, particularly in the face of other cutbacks that we've seen in the area of justice. I refer to things like the criminal compensation board, which has been decreased by some $1.5 million over the term of this government. I refer to the fact that the police complaints tribunal was disbanded, which was an easy way for people to access justice. Now they have to essentially go to the police. If they don't get justice, they have to go to the courts. I could give you a litany of those. In fact, I've listed some of those during debates in the House, so I will not use my 20 minutes to do that.
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People are concerned because we do not see a decrease in the need of people in a whole host of areas: in family law, for instance, where Professor McCamus indicated in his report we have some 67% of litigants who go unrepresented, mostly women and children, because they can't get legal aid certificates and they can't get lawyers and they can't afford to pay lawyers on their own.
We see that there are serious needs in the area of landlord and tenant, for instance, and again it's lower-income people who are most affected. That becomes all the more critical with what's happening with respect to rent control in this province.
There is no evidence that the need for legal aid is going to go down. All the indications are that it's going to go up. When you have a piece of legislation that doesn't deal with the funding issue, that doesn't deal with the multi-year stable funding, which doesn't deal with even adequate funding, we have some very serious problems.
When you add to that the omissions in this legislation, those areas of law which will not be covered by legal aid, the problem becomes even more compounded. We've heard from environmental groups, for instance, and it's absurd, that you couldn't get environmental law dealt with under legal aid. There was at least a discretionary ability to be able to do that under the old legislation. That's been removed. Landlord and tenant doesn't appear. There are very serious concerns about what legal aid will and will not fund, questions that remain to be answered, and I'm sure that over the course of the next few days we will hear from the public on these omissions.
Another area that I think is extremely worrisome, for not just us in the opposition but we heard evidence yesterday as well of this, is the appointment process to this board. There's a real feeling out there that the government may appoint individuals to this board who reflect its ideological bent and that that ideological bent may in fact mean the demise of the clinic system in Ontario. So there's an issue as to how people are appointed to the board. Will they reflect not just the geographic diversity of Ontario, which is stated in the bill, but the demographic diversity?
We heard from native women's groups yesterday saying there are some real problems in terms of native women and how we deal with them in this province. What can they expect from a corporation that deals with legal aid? Will it be receptive to their ideas? Will their concerns be represented? I think those are very legitimate questions as to how the process of appointment will take place, who will be appointed to these boards and what the real agenda is with respect to appointments.
In case that appears a trifle partisan, it's not just the opposition saying it, as I've said before. It's in fact the public who are concerned because they've seen other appointments that have been made and they have not always been reflective of a broader agenda.
There's another issue that I think is also particularly worrisome. It's been raised with respect to other justice bills and here we go again. In this particular piece of legislation the French Language Services Act is excluded. I thought we had fought that debate before, that we were not going to penalize individuals who speak French in this province, that whatever access there is to the courts ought to be equal for both francophones and anglophones in this province. I'm sure we will hear from l'Association des juristes d'expression française de l'Ontario later on with respect to this issue, but I wonder, given the debates that we've had around this issue, why we find again in this legislation that the French Language Services Act is excluded from application.
Chair, I don't know how much time I have left, but the issues that we have to deal with with respect to this piece of legislation are substantive. They revolve around funding; they revolve around the stability of that funding; they revolve around what areas of law will be excluded from the application of the legal aid certificates; they revolve around the appointment process, and with it comes the whole notion of accountability. Certainly in my view and in the view of many, the accountability ought to be to the Legislature, not necessarily just to the Attorney General. There of course is an issue, as I've pointed out, of French language, which is extremely critical.
Do I still have time?
The Chair (Mr Jerry J. Ouellette): Yes, you have about 10 1/2 minutes.
Ms Castrilli: Oh, my. What I'd like to do with the time that's left then is put some of those issues to Ms Austin and ask for her comments.
Ms Austin: I made note as you were going through. If I miss any, please call my attention to them.
Ms Castrilli: Indeed.
Ms Austin: Your first comment was that the bill is a shell. That in a sense is true, but what any bill does is set out the structure in which, in this case, an independent corporation will operate. If you set out every single term and condition, the corporation would have very little left to decide. So what the bill does is it sets out the structure, it sets out the regulatory powers in section 96, both those of Legal Aid Ontario and those of the Lieutenant Governor in Council. Then it goes on and states specific powers given to the board, and the board can either exercise those through policies, guidelines, an MOU with the government. There are many ways it could, but it allows the corporation to set its own priorities in accordance with the terms of the act and deliver services, again in accordance with the terms of the act, but it gives it the flexibility to do that.
One of the things we heard throughout was, "Don't make this so fixed that the corporation will not have a job to do," so that's what we have tried to accomplish in the act, and any more than that I can't comment.
You stated that there needs to be adequate multi-year stable funding. That has been in place under the MOU entered into between the NDP government and the Law Society of Upper Canada, and it has been honoured by this current government. This current government has stated in the House that there will be three-year stable funding at the 1998-99 provincial funding level, the first three years of the operation of Legal Aid Ontario.
Ms Castrilli: I understand what the legislation says and that this isn't something for you to answer, obviously.
Ms Austin: No.
Ms Castrilli: The reality is that the funding is hardly stable if it's only for three years and it's hardly adequate if it's frozen at current levels. But, as I say, that's not a political decision for you.
Ms Austin: I won't go there.
Ms Castrilli: I question as to whether that is adequate or stable or even multi-year, as Professor McCamus indicated.
Ms Austin: Now, section 65 does set out a mechanism for multi-year funding. It basically requires the corporation to set out a three-year budget in the estimates process. The first-year budget would be approved. In the second year, they would put forward a fourth year. So they would know during any three years what their anticipated budget would be and they have the ability to roll surpluses and deficits from year to year in section 65 of the act. So the mechanism is certainly in the bill.
You mentioned you were worried about clinics only being funded for three years. The clinic and clinic law itself is now a mandated service under the Legal Aid Services Act, 1998. There is a built-in base funding level at the current level, but it does not say that Legal Aid Ontario cannot fund at a higher level if that is how it sets its priorities and determines ways to provide services.
Ms Castrilli: It doesn't mandate increases either, according to inflation or anything else.
Ms Austin: No, it leaves it to Legal Aid Ontario. The way the bill is structured is to allow Legal Aid Ontario to operate as an independent agency within a financial envelope it is given, and certain protections are built into the act for clinics and --
Ms Castrilli: I appreciate that. The questions I'm raising are political. I agree with your interpretation. I think your interpretation, however, is a legal interpretation and there's certainly a great deal more that could be read into this.
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Ms Austin: Again, on the coverage areas, addressing only the legal aspect, there is the mandated coverage, but then the board of Legal Aid Ontario can set other priorities which could include landlord and tenant or other civil law. It's certainly not excluded. The definition is an inclusive one in the act.
On the issue of how people are appointed to the board, the structure is set out in the act and it's a political question as to how they are actually appointed.
Your comment on the French Language Services Act -- I apologize. It is confusing in the act. It is written in the negative, but it is a positive obligation on the corporation to have the French-language services apply as of April 1, 1999, in section 81. The reason it reads the way it does, saying, "the French Language Services Act does not apply" is because Legal Aid Ontario comes into effect on royal assent, which is almost right away, and yet Legal Aid Ontario will not be operating the plan until April 1, 1999. The law society continues to operate the plan. The law society does not fall under the French Language Services Act, so this had to be phrased in the negative, that the French Language Services Act does not apply until April 1, 1999, at which point it does, because that's when Legal Aid Ontario starts operating the plan. It is worded in the negative but it is a positive obligation and the French Language Services Act does apply.
Ms Castrilli: My comments were to elicit precisely that response, because it is a difficult read in the act, and just for the record we'll be asking for much clearer language than what's in the legislation at the moment with respect to that provision.
Ms Austin: I believe that covered the points you raised unless you have others.
Ms Castrilli: No, you've answered them, thank you. It still leaves the political questions open.
The Chair: You still have about two minutes left.
Ms Castrilli: I'm going to defer. I'm anxious to hear our presenters. We started late, so I will defer to my colleague.
The Chair: We'll move to the third party.
Mr Kormos: Thank you, Ms Austin. Ms Austin, I have the highest regard for you. As I indicated earlier, you were so kind, with your colleague, to spend time with Ms Boyd and me going over the bill, and you've been available both during the course of legislative debate, as you sit in the wings, and during this committee to answer questions that I've had of you. Your answers to direct questions have been very forthright.
I'm not asking you to take any notes because it seems to me that, and again no disrespect, because you want to draw the line between what's political and what's not, but you don't want -- well, you do. That was your response to Ms Castrilli.
Ms Austin: That's my job. I'm only here to --
Mr Kormos: I understand that, but I find, quite frankly, your refusal to draw some conclusions about the wording of the statute to be troublesome, not because it requires you to form a political conclusion but because they are the inevitable conclusions. The issue is all about funding. The issue is all about whether or not this government -- or quite frankly subsequent governments -- is going to provide adequate funding so that a legal aid system can operate at any level of effectiveness here in Ontario.
The fact remains that this legislation does not provide for a minimum standard of legal aid. It doesn't. There's nothing in this bill which indicates what the minimum standard will be. Although it endorses the clinic and certificate system and mandates the corporation to provide legal aid services by any method that it considers appropriate, it goes on, and I'm referring to section 14, to talk about having regard to "the corporation's financial resources."
At the end of the day there is no minimum standard, Chair. Effectively, we could be left with some gutted legal aid clinics and no certificate system, because it's all conditional on the resources provided to the corporation. The corporation has no power to compel the provision of resources or even to access an independent body to make its case for adequate resources. Do you know what I'm saying? Any number of administrative agencies and commissions can supervise the adequacy of funding to a certain area of concern.
We've got a letter that has been filed with the clerk. It's from Wayne Woods in Hamilton; it's a written submission. It is typical of the broadest-based concerns out there about legal aid, either pre-Bill 68 or post-Bill 68. This gentleman is involved in family litigation and is talking about the difficulties that he's had with what appears to have been a succession of lawyers. Again, I don't dispute what he says, although it's only one side of the story. A succession of lawyers have billed legal aid in various amounts, but at the end of the day Mr Woods went to court on his own and is still awaiting a resolution of the matter. It's an issue involving what appears to be access.
The big shortcoming, the big deficiency -- you people know it; it's been across the board. Criminal certificates: You heard from two criminal defence lawyers yesterday, talking about the inadequacy of funding if a criminal lawyer finds herself or himself involved in lengthy criminal litigation, or intricate or complex criminal litigation.
The deficiency has been across the board, but nowhere is it more acute than in the area of family law. The fact is, and that's what Mr Woods's letter confers, that a large number of family lawyers are unwilling and/or unable to effectively represent their clients in family litigation on the basis of the current tariffs in the legal aid system. That's the reality of it. We've seen, effectively, the delisting of services in legal aid in the area of family law. You've received these complaints in your constituency office. I know that, Chair, because we've received them in ours; all of us have. We've had these people come in, more often than not women.
We warned the Attorney General. For instance, when both opposition parties supported the family support guidelines, we warned the Attorney General at the time that this would put an enhanced load on the family courts and on the bar -- lawyers -- and concurrently on legal aid, because there would be a whole whack of people wanting to access the courts to have their support orders revised, either as recipients of support or as payors of support. The system has failed those people.
We heard yesterday from women in a unique situation, in a remote part of northern Ontario, aboriginal native Canadian women, about the difficulties in accessing legal aid, obtaining an advocate's assistance, retaining a lawyer for women who are at risk, women who are in danger, along with their kids.
Let's note that this bill very specifically states that the private bar is the foundation for the provision of legal aid services in the areas of criminal and family law.
Ms Austin: It's the foundation.
Mr Kormos: Yes. Very specifically, it says that.
Ms Austin: Correct.
Mr Kormos: It doesn't embrace or endorse or advocate or prepare the foundation for a broad-based system of family law clinics across the province, although it's capable of doing that within the structure. It states very clearly that the private bar -- again, I have no quarrel with the concept, but the private bar can't do it unless there's adequate funding for those services. The private bar, notwithstanding the best of commitments to their profession, when they have a very limited number of hours of preparation in family litigation -- and I'm speaking specifically about family law -- are going to have to turn down and refuse legal aid certificates.
That's what you've been hearing in this committee, Chair, isn't it? You very specifically have been told that lawyers and law firms simply cannot afford to entertain legal aid certificates when they have overhead; they've got to pay for any number of costs. The certificate program simply is inadequate.
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I would admonish the government members to be very careful in their enthusiasm for this bill, because obviously it will be up to the next government, the one that will be elected in 1999, to determine the level of funding for legal aid. I'm prepared to concede it could well -- look, Lord knows I pray about this more often than anything else that I've ever prayed for, that it not be the Tories who form the next government. I do. No disrespect to you, Chair, but I pray for that and I'll work as hard as I can to prevent it, to make sure the Tories are turfed. But the reality is that when you look at the poll support that the Conservatives have now, depending on how they can stickhandle things and how many more millions of dollars they spend of taxpayers' money on glossy advertising, it's quite conceivable that, yes, they could form a government again.
I want people to be very clear about that, not become complacent about the Tories being defeated just because they're mean and right wing and reactionary, just because they beat up on women and kids and workers and sick people and seniors and students. Don't think that alone is going to get them defeated; it's going to take a whole lot of political work over the course of the next six months to defeat the Tories. I can see that they may well be re-elected, but even if they're not, the next government, be it Tory or Liberal or NDP, is going to determine the effectiveness of the legal aid system.
Do you want to know something? Let's recall any number of circumstances. Let's recall the promise to revoke the GST and how easy it was to promise that, yet how alluring it was to breach that promise once one forms the government. What I'm saying is that the next government, regardless of its political stripe, is going to be very tempted to save money, to reallocate resources away from the justice system if the legislation allows it to. I'm saying this legislation does.
I'm referring to subsections 65(5) and (6) of the legislation which very specifically provide for stable funding -- people know what it is; we talked about it yesterday -- for the clinic program for three years and stable funding for refugee and immigration law for a mere two years. Fair enough. There's no legislative provision for stable funding of the overall legal aid plan.
This, Ms Austin, is where you quickly raise the point that the Ministry of the Attorney General -- that's Mr Harnick when it comes down to it -- promises that the government will maintain stable funding of the overall plan for three years. If he's prepared to promise it, why isn't he prepared to put it in the legislation? He's prepared to put into legislation stable funding for the clinic system for a mere three years and stable funding for refugee law for a mere two years. There's no mention of refugee law. That's been raised. It was raised yesterday; it will be raised again over the course of this week. Clearly this government is abandoning legal aid services for people seeking refugee status.
Is that a politically popular position? I say that it is. This government has read the writing on the wall, senses -- yes, sadly and regrettably -- an anathema, a building, growing fear perhaps, among other things, about refugee claimants in this country, notwithstanding Canada's commitments to any number of international accords and its responsibilities internationally. This government is exploiting the distaste out there about refugee claimants which quite frankly, in my view, oftentimes has racist overtones or underlying racist qualities. Indeed, "qualities" isn't the appropriate word.
Why should we believe the Attorney General when he promises stable funding? We couldn't believe the Attorney General when he told us the family support plan was up and running up in North York, could we? Far be it from me to say that he lied. I can't say that in committee but I said it outside the committee in front of the press yesterday. I can't say it in committee, I know that, because it's unparliamentary, but I said it to the Thunder Bay Chronicle yesterday, that the Attorney General lied about the family support plan. Why should I believe him, why should any of the pubic believe him, when he merely promises to provide stable funding over the course of three years?
This is the Attorney General who -- I don't know if he's back from New York yet or not -- was being wined and dined and courted by Newcourt Credit Group down in New York City this past weekend. He was down at the Four Seasons having his suite paid for. Apparently he and Mrs Harnick were down there. I had my staff check. Do you know what a room at the Four Seasons is worth? I didn't know. It's been a while since I was down at the Chelsea Hotel on 23rd Street, which I tell you is the low-rent district compared to the Four Seasons. The Four Seasons starts at US$565 a night for a double, up to US$1,050 a night for a double. I'm just telling you what they told us. We called them this morning to find out what the room rates are. I wanted to know what Newcourt was paying for Mr Harnick's accommodations in New York. I wanted to know how much an Attorney General costs. Other than the price of some Broadway tickets and an air flight, apparently anywhere from $560 to $1,050 a night.
I understand why the crime commission would have wanted to keep him away from the Santa Claus parade here in Toronto this weekend, having heard what Jim Brown said about the Santa Claus parade.
This is the Attorney General who allows himself to be wined and dined and courted by Newcourt, a private corporation that has as its goal, has as part of the whole gang that was down there people who were involved in privatization, including those involved in the planned privatization of Highway 407, among others.
I'm not prepared to accept the Attorney General's say-so because his say-so, his promise, isn't worth a tinker's damn; it isn't worth the paper it's written on. Here it is; it's included in the minister's statement to the House upon the announcement of this so-called reform of legal aid.
Is the structure bad? No. I've indicated that already in the House. Clearly the assumption, the inference you can draw, is that the law society really didn't want the responsibility of administering it any more. Fine. The prospect of an arm's-length corporation is inoffensive in itself. Mind you, has this government in its legislation done anything to ensure that the membership of that corporation, the membership of that board, is going to be representative of all of the facets, all of the sectors, in Ontario society? No, not by a long shot. Indeed, the legislation guarantees that it's going to be padded with political hacks, political appointees.
Again, government backbenchers can protest on behalf of their Attorney General or on behalf of the Premier or on behalf of their cabinet that that won't be the case, but I sat through the ABC committee, the agencies, boards and commissions committee, which screens appointments. You saw the dogs that were paraded through there: pure political appointments, people who very much had a personal and philosophical commitment to this government's agenda. This government knows that the whole issue of legal aid out there among the general public doesn't have a particularly high profile and it's not particularly popular.
The legal aid system has been vilified in part by observations regarding some of the defences of what have been some horrific crimes here in Ontario, some just unspeakable, horrific crimes which involved legal representation and extraordinary legal aid costs because of the nature of the trials. The government understands that legal aid is not held in particularly high regard by the general public. This government knows that if you polled the community right now and asked them whether they think their tax dollars should be spent on -- how would they phrase it if they polled it? "Defending criminals"; I'm sure that's how members of the crime commission might be inclined to phrase it. Far be it from me to put words into their mouth. You know darn well what the public's going to say: "Of course we don't want to see tax dollars invested in defending criminals."
As Mr Montemuro pointed out yesterday, the whole issue, the real story, the real rationale, was all about protecting the tradition of the presumption of innocence. It was also about making sure the criminal justice system works, or, quite frankly, any other facet of the justice system, be it family law, be it civil litigation, administrative law, what have you. Don't think that judges and crown attorneys aren't concerned about the prospect of a complete collapse of the legal aid system and the crisis that will create in our courts and the injustices that will inevitably generate.
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I've got to tell you, Chair, I'm not inclined to support this legislation -- I think you sort of got the drift some time ago -- not because the prospect of an arm's-length corporate body running legal aid is inherently bad. Of course not. The law society is an independent body. Quite frankly, I'll accept the recommendations of Professor McCamus in that regard. I'll accept his recommendations. The bottom line, though, is funding and I don't think this government is sincere about its commitment to funding, because if it was, it would have put it in the bill, it's as simple as that, and/or it would have provided for a means whereby the corporation, with all of its advisory groups, could appeal to an independent body to determine what is an adequate level of funding. You know that as well as I do.
I don't trust this government at all. I don't trust subsequent governments. I trust subsequent governments a little more than I trust this one. I've been here 10 years. I've seen all three parties now form government. It hasn't been a pretty picture, let me tell you. At the end of the day, it hasn't. The fact is that unless it's etched in stone, unless it's a part of the legislation, I don't trust this government or any subsequent government to adequately fund legal aid services, because it doesn't have political spin for them. There isn't a great political payoff, but there are some horrific consequences should legal aid not be adequately funded.
I call on government members to speak out about that, to be outspoken, to be courageous, to let their Attorney General know, if he's not suffering jet lag from that flight back from La Guardia or Newark -- I doubt very much if he drove or took the bus. You know that, don't you? Not when Newcourt's paying the tab. You don't take a bus to New York City; you take the plane. And not when you're staying at the Four Seasons, where prices start at $565 a night US -- you know what that is in Canadian? -- up to $1,050 a night.
The issue is all about funding. The bill fails to address that. We can't count on the Attorney General to keep his promise.
The Chair: Thank you very much, Mr Kormos, for your presentation.
Mr Kormos: Thank you, Chair.
LAW SOCIETY OF UPPER CANADA
The Chair: We call upon our first presenters of the day. If the representative or representatives of the Law Society of Upper Canada could come forward and identify yourselves for Hansard, we would appreciate it. Just so you know, there's a total time allocated of 20 minutes. At the conclusion of any presentation you may have, the time is divided equally between the three caucuses for questions and answers. Thank you for coming. You may begin.
Mr Derry Millar: Thank you. My name is Derry Millar. I'm an elected bencher of the Law Society of Upper Canada and the chair of the clinic funding committee. With me today is Robert Armstrong, QC, who is also an elected bencher and the chair of the legal aid committee of the law society. As you know, Mr Harvey Strosberg, QC, the treasurer of the law society, will be appearing before you on Thursday and he will speak to the bill on behalf of the law society and will discuss with you those portions of the bill that the law society, through convocation, has some difficulty with.
As you all know, the lawyers of Ontario, through the Law Society of Upper Canada, have for over 30 years run the legal aid plan, which is acknowledged as the finest legal aid plan in Canada. As you are also aware, the clinic funding committee, of which I am chair, is presently established by the clinic funding regulation which is part IV of the Legal Aid Act regulations. The clinic funding committee supervises the clinic funding staff and the expenditure of the funding it provides for the operation of the community clinics.
There are 70 community legal clinics in Ontario plus two project clinics operated in conjunction with specific ministries. Of the 70 clinics, 56 are general clinics and 14 are specialty clinics which offer services in particular areas of law or services to the legal needs of a specific client group.
The clinic system is funded by a grant of $32 million per year from the Ministry of the Attorney General. The funding for the clinic system has been frozen since 1993.
It has been recognized by the Ministry of the Attorney General, and was recognized by the McCamus report, that the clinic system in Ontario provides high-quality and cost-effective representation to the poorest people in the province and provides them with needed poverty law services.
If I might just stop for a moment and speak about the McCamus report, Mr McCamus, in his report:
(1) recognized the valuable contribution of the clinic system to the delivery of poverty law services in Ontario;
(2) recommended that the community legal clinic model be retained as the primary means of delivering poverty law services in the province;
(3) recommended that the community legal system be expanded across the province, in effect to complete the system;
(4) recommended that the community legal clinic system maintain its separate identity within the new legal aid organization;
(5) recommended that the community clinic system be funded for three years after the expiry of the memorandum of understanding at its current level of funding.
The report, among other things, also said that there needs to be more board accountability, including more training for the boards of individual clinics, and he also said there needs to be more coordination between the certificate side and the clinic side at the local level.
The act that you have before you incorporates the recommendations of the McCamus report. You will hear next from the association of legal clinics of Ontario with respect to the new legislation and their perspective.
The clinic funding committee believes that the Legal Aid Services Act, 1998, maintains the independence and community-based nature of legal clinics both by its statutory provisions and in the three-year guarantee of funding for the clinic system. The bill provides the flexibility necessary to provide legal aid services by the most effective means possible, while respecting and preserving the primacy of the private bar as the foundation of family law and criminal law services, and clinics as the foundation of clinic law services.
Mr Armstrong and I would be happy to answer any questions you may have with respect to our respective areas of responsibility.
The Chair: Thank you very much for your presentation. That allows us approximately three and a half minutes per caucus, and we'll begin with the third party.
Mr Kormos: The law society grappled with the issue of funding the plan over the course of the last couple of years, as I recall it. I recall similarly people travelling out there across the province looking to the public, including members of the bar, for suggestions as to funding. What happened to that exercise?
Mr Millar: As you know, Mr Kormos, since I guess 1993, the law society entered into a memorandum of understanding with the then government of Ontario with respect to funding. As a result of that, the funding for the clinics was frozen at $32 million and the funding with respect to the rest of the legal aid plan was fixed as a result of the memorandum of understanding.
Mr Robert Armstrong: At $167 million, and limited our certificates to 100,000. In the year before the memorandum of understanding, the number of certificates was in the area of 240,000.
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Mr Kormos: What led up to the law society relinquishing its stewardship of legal aid?
Mr Armstrong: I would be prepared to answer that question. I think it was a combination of the McCamus report and its recommendation, the Criminal Lawyers' Association making a very strong recommendation that the law society should get out of the legal aid business and, thirdly, the capped funding.
I think the benchers on the whole felt that with the reduced funding available, we did not have any more -- not that we ever did, but we had no control over the funding available. It's a very sophisticated social welfare program. We didn't get elected to run a $250-million social welfare program, and we just thought that we should get out of it and leave it to an independent agency to run.
Mr Kormos: You know that the bill provides for stable funding for refugee law for two years, subsections 65(5) and (6), and stable funding for legal aid clinics for three years, but omits any legislated requirement for stable funding of the overall legal aid plan. Why, in your view, would that third element be omitted when in fact the Attorney General promises it? Both of you are lawyers, I think. Why wouldn't the Attorney General want to legislate it if he was prepared to really promise it?
Mr Armstrong: That's got to be a question for the Attorney General. We can't answer for him. We're on the way out.
Mr Kormos: I don't trust the Attorney General. I won't ask you whether you do or not. His track record is such that it's hard for me to take his word.
Mr Armstrong: To be fair, with us so far he has kept his word.
Mr Millar: With respect to the clinic system, he has done what he said he was going to do.
Mr Kormos: You haven't been involved with the family support plan a whole lot, have you? Thank you.
The Chair: We now move to the government members.
Mr Martiniuk: As you know, the Attorney General has said that a memorandum of agreement will be signed with the new corporation for stable funding over the next three years. Just for our background, because I was not involved in legal aid, prior to 1993 -- this is when the law society, I understand, and the government at the time, Mr Kormos's party, entered into an agreement in which stable funding was guaranteed for five years -- can you tell me what occurred prior to 1993 that might have made that necessary?
Mr Armstrong: I think it's probably 1994. Prior to 1994, in practice what happened was that the legal aid plan provided a budget approved by the law society. It then came here and typically what would happen is the Attorney General's department would say, "You've asked for too much," and they would approve something like two thirds to 80% of the budget. The law society would go ahead, administer the program and come back and say, "We told you we couldn't do it for two thirds or 80%; we need more money," and the government usually came through with more money.
What happened in 1994 is the government of the day said: "Look, we mean what we said. You can't have any more money, either now or later, and you've got to administer this program under a capped arrangement of $167 million from the provincial government." When you add in the other money that came from the federal government and other sources, it came out to about $240 million to $250 million. That's the background of it, so it was in a sense a kind of open-ended funding arrangement that had existed for nearly 30 years. We think it worked well, we think we administered it responsibly, but the political masters and mistresses of the day said, "We don't agree with that any more." We said, to be blunt about it, "Okay, you should get somebody else to run it."
Mr Martiniuk: I take it the government of the day was saying, "Because of our obligations to the taxpayer, we can't write a blank cheque."
Mr Armstrong: I think that's fair, yes.
Mr Millar: With respect to the clinics, the clinics would provide a budget and the budget would be approved by the ministry, and what happened in 1994 is that the budget was then frozen at the 1993 level.
The Chair: We now move to the official opposition.
Ms Castrilli: Thank you, Derry and Bob, for being here today and giving us a very unique view of this legislation.
I want to make a comment and then ask two questions of you. I hope I have time for that. The comment is that certainly in the Legislature we have had a lot of finger pointing, particularly on the government side, on mismanagement of the legal aid plan by the law society. I have been on record, and want to go on record again in this committee, to say that there were certainly some problems but finger pointing is not the solution. The issue has always been one of funding and not mismanagement.
The questions that I have for you are these. The first is, you have mentioned that $32 million is the amount that has been allocated for the last few years to clinic funding, and I'd like you to comment on whether that's going to be adequate for the foreseeable future. It's going to be frozen, as you know.
The second question -- I want to get it in so that the Chair won't say I'm out of time -- is we heard yesterday in Thunder Bay where we had a number of groups appear, including some that came from further north, that there were some real problems with respect to getting legal assistance. One of the recommendations that Professor McCamus made with respect to the clinic system -- it refers specifically to number 11; I don't know if you have it in front of you -- is that there should be a completion of the geographic coverage of the general service that clinics provide. I wonder if you feel this legislation addresses that at all, given the disparity of service available in northern and southern Ontario.
Mr Millar: With respect to the clinics, I think it has been recognized by everyone who has ever been involved with the clinics that they have been very cost-effective and that they have been very responsible organizations. The clinics have never run a deficit, because the clinics get a budget and the clinics live within the budget.
What the bill does in subsection 65(4) is set a floor, as we see it, with respect to the funding of the clinics. The clinic system hopes that when the new corporation is set up the allocation of monies for the clinic system will increase and that the clinic system will have more resources to do its job. Really, the legislation is in effect doing what McCamus said, saying, "You will have no less than what you've got now, and it's hoped that the clinic system will get more."
In order to complete the clinic system throughout the province, more funding is necessary, because the clinic system cannot expand without more funding. The staff in the clinics, for example, haven't had a raise in five years, so we need more money, and this section provides a base.
Ms Castrilli: But there's no guarantee that the additional funding will be available. As you stated, there's a floor but there's no guarantee beyond that.
Mr Millar: We would love to have a guarantee, but that's not something that --
Ms Castrilli: It's not there. Thank you very much.
The Chair: Thank you very much for coming forward today. We very much appreciated your presentation.
ASSOCIATION OF COMMUNITY LEGAL CLINICS OF ONTARIO
The Chair: We'll call our next presenters. If the representatives of the Association of Community Legal Clinics of Ontario could come forward.
Mr Kormos: On a point of order, Chair: The last presentation did nothing to quash the rumours that the trade-off between the AG and the law society was that if the AG gave them the Law Society Act, they'd give the AG Bill 68. What can I say?
The Chair: For the presenters who have come forward, if you could identify yourselves for Hansard, we would very much appreciate that. You may begin.
Ms Ernestine van Marle: Thank you for giving us the opportunity to respond to the proposed bill. I'm Ernestine van Marle; I'm the co-chair of the Association of Community Legal Clinics of Ontario. I'm also the chair of the board of a legal clinic. As you know, board members serve without pay. The reason they are there is that they believe in the tremendous value of the services. The other advantage is that board members are often involved in many other things, and so they have an intimate knowledge of mental health or immigrants or whatever they are involved in. Often the legal clinics, at least in my area, have a splendid working relationship with your constituency workers. We are a source of referrals and a resource to the people who work with you.
Hugh Tye, who is sitting on my left, is the other co-chair of the association. He is a lawyer and a director of his clinic, and he will make the presentation.
Ivana Petricone is also a lawyer and a clinic director, and she is a member of the legal aid subcommittee of the association. Ivana will respond to whatever questions you may have.
I understand that a few clinics will also make presentations but that they will speak to specific issues in their communities.
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Mr Hugh Tye: Mr Chair and members of the committee, the association, after analyzing the draft legislation, has certainly concluded that there's much to commend in the Legal Aid Services Act, 1998, in its current state, primarily because we believe it's based on the blueprint established by Professor McCamus in the 1997 report. We certainly endorse the stated purpose of the act, contained in section 1, that being "to promote access to justice throughout Ontario for low-income individuals." We believe that the legal aid system created by this legislation has the potential to accomplish that stated goal.
We applaud the creation of an independent corporation to operate the legal system. Clearly there is the potential for that board to be accountable to the users of legal aid services, that being in the criteria set out for the appointment of individuals to that board.
We're pleased that some members must have knowl-edge and experience in the difficulties confronting low-income individuals in this province. We support the legislation's inclusive approach to legal services, which allows for innovation under the new scheme. Certainly the board will be given some flexibility in how it chooses to meet the legal needs that are identified in the province. We also support the stability that is provided by a five-year memorandum of understanding in section 70 of the legislation and the three-year funding cycle for the clinic system.
Referring specifically to the legislation's provisions dealing with community legal clinics, we certainly support the recognition of clinic law as a fundamental component of the legal aid system and the very broad, inclusive definition of "clinic law." Also, the definition of clinics themselves preserves the independent, community-based nature of clinics, which we believe is the underpinning of our system. We also endorse the fact that there is a standing committee for clinics and that there is a three-year minimum funding guarantee for the system, which is consistent with what Professor McCamus recommended.
Some housekeeping amendments that we would like to note are contained in section 4 of our written presentation. These are to sections 33 through 39 of the bill, which deal primarily with clinics. We have noted some inconsistencies with other sections and have therefore suggested that when funding decisions are made about clinics, there be written reasons provided and a reconsideration process. Some sections deal with it, some don't. We recommend some consistency there.
Also, there appears to be an omission of the fundamental duty of local clinics to determine the legal needs of the community and the services that should be provided therein. It's implicit -- clearly this is the fundamental nature of clinics and boards -- but we feel it should be an explicit duty set out in the legislation.
Finally, we have asked for some clarity and precision in section 38.
We have also identified some provisions in the act that we feel are not consistent with the stated purpose of the legislation. Those are contained in our written presentation. I will just touch on them briefly, and then I will pass the microphone to Ivana.
Clearly it's essential that the new board, Legal Aid Ontario, be independent of government funders as well as the legal profession responsible for providing most of the services under this new system. With reference to that board, the act contains criteria for the selection of directors, as I mentioned, but it does not deal with the process of appointment. We feel this is critical, and we recommend an independent selection process or at very least one that is guaranteed to be open and consultative beyond simply consulting with the treasurer of the law society of the province. We feel that this would go a long way to ensuring the independence that is so important to this new legislation.
In the immediate future, for the transitional board which is contemplated in section 9, there are no criteria at all for selection and there are unlimited powers and unlimited tenure. Again, we feel it's critical that there be limits on tenure and powers for the transitional board and an open selection process for the appointment of the five individuals to that important board.
Ms Ivana Petricone: You've heard several times today from my colleagues and from others who have spoken how important it is for Legal Aid Ontario to be independent of the government that funds it. I'd like to underline that it's of particular importance to clients of community legal clinics, who more often than not are involved in disputes with that government.
For that reason, we find that subsection 13(3) concerns us somewhat. We think this subsection has the potential to erode the independence that you have heard is so vital for Legal Aid Ontario. Subsection 13(3) lists several areas of law which Legal Aid Ontario would be prohibited from providing. Clause 13(3)(e) gives the government the authority to set regulations in any area of civil law. Our concern is that this erodes the jurisdiction of Legal Aid Ontario to determine the needs of low-income Ontarians and the disadvantaged community, and it therefore should be removed from that section. Our concern is that political considerations might be involved in deciding which areas of civil law might be prohibited.
You've also heard of the importance of funding. I'd like to underline that we also are concerned with Legal Aid Ontario having adequate multi-year stable funding. But our concern also involves the independence issue, somewhat like the issue we all had with our parents, that we couldn't be truly independent until we were economically independent. It's vital that we have independence with respect to funding from the government.
You've also heard that this act circumscribes immigration and refugee law services. That concerns us a great deal. Professor McCamus recommended that the design of the legal aid system should address the diversity of special needs presented by ethnic, racial, cultural and linguistic minorities. The report offered several ways to enhance these services to the refugee and immigrant communities.
However, immigration and refugee law is not specifically named in the list of services under subsection 13(1). You've also heard that funding is only guaranteed for two years. While it's our understanding that these two years are to permit the province to negotiate with the federal government to live up to its obligations, and while we would all like to see the federal government meet those obligations, it's our concern that many refugees will suffer in the meantime. And "suffer" is the correct word for this, because these are people who are at risk of losing their lives, at risk of being returned to countries where their rights have been seriously violated. I can't underline how vulnerable this community is and how much they need legal aid services. So I urge you to include refugee and immigration law in the list of services and to remove the two-year limitation on the funding guarantee.
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Several sections in the act deal with the quality assurance program. We initiated a quality assurance program in the clinic system almost two years ago. We're developing experience in this area. Clinics are supportive of a program which helps to ensure that our services are top-notch. We're particularly supportive not only because it improves the work we do, but also because it guarantees the highest level of services for the low-income community we serve.
We believe, however, that two fundamental principles must guide any quality assurance program. These are that the client's right to confidentiality must be of utmost importance, and that the goal of the program must be to support and improve the work we do and not part of a disciplinary process.
To this end, we recommend some amendments to sections 89 and 91, which are in our written brief. Briefly, these state explicitly the purpose of the quality assurance program, which we suggest is to provide ongoing, verifiable assessment of the quality of operations. The second amendment requires the authorization of each client for a file to be reviewed by an employee of the quality assurance program. Third, we suggest that the word "review," as in "quality assurance review," be substituted for the word "audit," to better reflect the intent of the program. Generally, we've recommended some amendments which will build greater protection for confidentiality of clients once that information is in the hands of the quality assurance employees.
We're happy to answer any questions you have.
The Chair: We have a little over two minutes per caucus, and we'll begin with the government members.
Mr Martiniuk: Thank you for assisting us here today, and thank you for your volunteer time.
As a matter of education, could you give me a typical legal aid clinic and the services and percentages they might -- I know there's no such thing as typical, they all vary. But I'm interested in the services they would provide and the percentages of those services.
Ms Petricone: There are two types of clinics, as you heard Mr Millar describe. Hugh and I work in general services clinics, and there are several specialty clinics.
The general services clinics are in geographic localities, and so our communities are defined by the geography, the location we're in. Generally we provide services in housing, landlord and tenant law, social assistance law, workers' compensation. We do Canada pension disability plan appeals, employment insurance appeals: those areas of the law that the poor generally have the most need of. Several clinics in Toronto give services in immigration and refugee law.
In terms of percentages, it's difficult to say. In my clinic right now, housing is the highest, followed by social assistance. I'm sure you're aware of the circumstances there have been in the past few years to make that necessary.
The specialty clinics define their communities by a particular disadvantage that a community might face. So there are specialty clinics that serve the elderly, the disabled, and children and youth. There are two that serve injured workers. There is a clinic that specializes in public legal education. There is a correctional law program specialty clinic that assists inmates. That's generally; I don't know if I've answered your question.
The Chair: We now move to the official opposition.
Ms Castrilli: Thank you very much for being here and giving us a perspective from the people on the ground who do the work, and thank you for doing it without a pay raise for five years, which is what we heard the law society say just before you.
Yesterday in Thunder Bay the Roman Catholic Diocese of Thunder Bay, which does a significant amount of work and has pioneered work with refugees in northern Ontario, indicated to us that it's not entirely correct to say that the responsibility for immigration rests solely with the federal government. They advanced two arguments. One is that the funding for refugee and immigrant matters is covered under the federal general transfer payments, and so the province can allocate that in any way it wants and it's bogus to say that it should not be allocated in that area. The second is that there are no qualms in provincial matters, for instance, for legal aid to cover criminal law, which is federal, and yet they balk at refugee and immigration law as being federal. I wonder if you agree with that and what comments you might have.
Ms Petricone: Let me say that when we were receiving our briefings with respect to this act and when we raised our concerns about subsection 65(6), it was explained to us that the reason for the two-year period was to give the province an opportunity to negotiate with the federal government. Our association can't comment on whether that's appropriate. Our concern is that if it is appropriate and the province feels it must enter these negotiations, there needs to be a safety net for the people who need the services in the meantime. They shouldn't be pawns in this debate.
Ms Castrilli: Could I just say your recommendations are very practical, and thank you very much.
The Chair: We now move to the third party.
Mr Kormos: Who briefed you on the legislation?
Ms Petricone: The legal aid reform project.
Mr Kormos: Ms Austin?
Ms Petricone: Yes, and her staff.
Mr Kormos: Did you believe everything she told you about the rationale, for instance, for the two-year commitment to refugee law funding but no mention of it in terms of the scope of legal aid in the earlier parts of the bill? Did you believe her?
Ms Petricone: We had no reason to disbelieve her.
Mr Kormos: Then why would refugee law be included in the scope of practices to be encompassed by legal aid within either the clinic or certificate areas?
Ms Petricone: The explanation that was given to us was what I have already stated.
Mr Kormos: I know what she told you because she told me the same thing in my briefing, and I quite frankly think that's political spin. It would have been so easy to include refugee law as one of the mandates of clinics or certificate areas at the same time as saying stable funding will only be there for two years, just as they include clinic law very clearly and you applaud that, but they say it will maintain stable funding for only three years for clinic law. I think this government doesn't give a tinker's damn about refugee law. Otherwise it would have been put into the earlier parts of the bill.
Ms Petricone: We're asking them to do that.
Mr Kormos: You bet your boots. But you understand that politically the polling, the public opinion, is on their side. The public, by and large, is unsympathetic to refugee issues. You hear the radio talk shows and that sort of stuff, don't you?
Ms Petricone: Yes. We also see the refugees and the immigrants who not only come to us for refugee and immigration law services but for all the other services I've mentioned.
Mr Kormos: I admire your trust in these people, honestly. I wish I could come up with even a fraction of it.
FAMILY BAR OF NORTHUMBERLAND COUNTY/NORTHUMBERLAND COMMUNITY LEGAL CENTRE
The Chair: Our last presenters of the morning are the Family Bar of Northumberland County/Northumberland Community Legal Centre. If you could identify yourself for Hansard, we would appreciate it.
Mr Wilfred Day: My name is Wilfred Day. I have been practising law in Port Hope for 27 years, primarily litigation.
This is a report from the front lines. I have two hats today. The first is for Northumberland county's family bar: 28 lawyers in Cobourg, Port Hope, Brighton and Campbellford.
The government is right to be proud of parts of Bill 68. First, having an independent board dominated by non-lawyers will finally let legal aid deal with business such as lawyers' fees without being faulted for conflict of interest. Second, many key points were not in the old act but only in the regulations. When people grumble about the many powers given to cabinet under the omnibus bill, you can say some acts, like this one, go the other way. For example, this bill does spell out the principles that Legal Aid Ontario "shall provide...services in...family law," and that the private bar is "the foundation for" the provision of family law services.
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Still, on most points the new board of Legal Aid Ontario will decide. How responsive to local needs will the new system be? Area committees and area directors will have the functions assigned by the board. Why are we watching this new board? Some background will show you.
Although this act speaks to the future, you may feel nostalgic when you see how family law legal aid works in Northumberland. Next door in Durham region, a local survey last fall showed that out of 145 family lawyers, only 24 still take legal aid. By contrast, in our county it still works the way it was meant to, by the whole bar sharing the load. We have 28 lawyers with a substantial family law practice. All but two still take legal aid. Almost all of us are small business owners; that is, sole practitioners or partners in small firms. The 26 family lawyers who still take legal aid, five women and 21 men, have an average experience of 15 years in practice.
We worry about access to legal aid. We see every day that judges cannot administer justice properly when unrepresented litigants bring cases before judges with bad documents. In 1993-94, our county issued 799 civil certificates, mostly family. However, after the 1994 cutbacks, the number crashed to 116 in 1996-97, only 15% of the past level.
We cut a bit more than our share in our county. However, our big problem was the provincial cut in family law. In those three years, criminal certificates in Ontario dropped to 50% of pre-cutback levels and immigration dropped to 35%, but family law dropped to 21% of pre-cutback levels. Legal aid overshot its target cuts in family law, but even last year the provincial limit in family law was still only 29% of the pre-cutback level.
Let's be clear who we are talking about. The Supreme Court of Canada, in Moge, told courts to take judicial notice of what they called the "feminization of poverty." This applies not just to young single parents but to seniors without private pensions, usually women, and those earning minimum wage, usually women. Take a woman working for $9.60 an hour and living alone with her one child. Their basic needs for shelter, food and other necessities are $1,596 a month, according to legal aid's tables, not counting debt payments or child care costs. That's exactly what she takes home. If she's not getting child support, she qualifies for free legal aid. If the child's father also earns $9.60 an hour, he pays child support of $163 per month, plus his share of child care costs. If her debt payments eat that up, as usually happens, she still qualifies for free legal aid. I have a client who maxed out her credit card charging diapers and formula when her maternity benefits from unemployment insurance would not stretch far enough. About half my clients are women and half are men, but whichever side one is on, the issue will not go away.
Because we share the load in places like Northumberland, legal aid has gotten away with freezing our pay for 11 years. The basic legal aid rate has been $67 per hour since 1987. As its last kick at the can before handing over legal aid, the law society finally got up its nerve to say an increase was overdue. Legal aid had the money, because the cuts overshot the targets, yet the cabinet recently refused to approve an increase in the hourly rate, after 11 years, of 4%. If we see a 1987 child support order, with inflation of 33% since 1987, as part of our work we get the child support raised. Yet we can't get our own fees to keep pace with inflation. Our mistake obviously was asking for only 4%.
As you know, women get 95% of family law certificates. In Northumberland these women still have almost the same choice of lawyers as men do. In many districts like Durham this is no longer true. It will not stay true in our county forever either.
Recently one of us dropped off the panel, noting that $67 per hour barely covers his overhead. He says he does his volunteer work after hours, but he would come back if the rate went up to $90 an hour. Once the senior lawyers quit taking their share, the middle group cannot afford to pick up the slack and the system collapses to the point where a woman on legal aid has to choose among a few less experienced lawyers who take most of the certificates. This means that the first item on the new board's agenda will be the inadequate rates, which in many places deny women equal access to justice. The second will be the barriers to equal access to justice caused by the cuts in certificates.
Hence, my main point: The credibility of this new board is vital to the confidence of the bar in the new legal aid plan. Without that confidence, it won't work. We frankly had doubts about some of the old legal aid committee. They were mostly law society benchers, most of whom no longer took legal aid certificates, if they ever did. They meant well, but the Bay Street types did not look as if they were in touch with the front lines.
Several provisions in your bill are vital. The Attorney General names five directors. Section 5(5) says he or she shall ensure that they "reflect the geographic diversity of the province." Likely, you would all assume that means one from western Ontario, one from the east, one from the north and two from Toronto. However, no doubt you know many Toronto lawyers who could sincerely think this means one out-of-town member to give balance to the four from Toronto.
Legal Aid Ontario shall divide the province into designated areas and may merge them. This makes counties and districts like ours very nervous that someone in Toronto will decide we no longer need our own part-time area director. Therefore, the submission of the County and District Law Presidents' Association to the legal aid project team asked that the bill spell out the geographic distribution very clearly. Section 5(7) says that of the five members from the law society, no more than three can be benchers. It would help to spell out their geographic distribution as well.
The CDLPA submission also said that the lawyers on the board should all be lawyers who "engage in actual delivery of legal aid services." Perhaps you may leave that choice to the law society, but it would help if you said that at least three lawyers from the law society must be lawyers who currently provide some legal aid services.
Despite the bill's many good points, it has one big flaw of general public interest: The independent board does not look independent. This draft has the Attorney General selecting all 11 directors. The Attorney General's October 6 news release calls Legal Aid Ontario an "independent organization." The ministry's backgrounder accompanying it states, "Legal Aid Ontario's independence from government and the legal profession...is necessary to ensure that the organization represents the public and is not in a conflict-of-interest position with the government, which is a party in a majority of legal aid cases, or the legal profession." Clearly the ministry is inviting an amendment to ensure this. The board is already accountable to the government that sets its budget. The Attorney General does not need to select the whole board as well.
The Attorney General is clear that the board not be in the hands of lawyers. We agree. So we need some directors independent of both the bar and the government. The CDLPA proposed a board of 15: seven lawyers, four government appointees and four independent of both government and lawyers.
We request two amendments to the bill to ensure that the board is truly independent:
(1) This draft says that the Attorney General selects five lawyers "from a list of persons recommended by the law society." But to ensure the board's independence, the law society must actually name the lawyers. If you want to put parameters on the law society's choices, for the sake of transparency you should put them in the bill, not in the hands of the Attorney General.
(2) The Attorney General must not select the majority of members, but the majority must be non-lawyers. Therefore, we suggest two independent non-lawyer members. One could be named by the deans of Ontario law schools and one by the Association of Community Legal Clinics of Ontario in consultation with user groups like the association of women's shelters, persons with disabilities, the Elizabeth Fry Society, the John Howard Society and the mental health association.
Putting on my second hat as chair of the board of the Northumberland Community Legal Centre, I support the submissions that you've just heard from the ACLCO. I am here mainly to make my submissions for the family bar, so I will not go into more detail on the clinics. I would point out one excellent point in your bill which used to be only in the regulations, which is that each clinic shall be an independent community organization.
Our board passed two motions at its last meeting. One was, "That we request an amendment to the act to ensure that the board is truly independent...." This is the same as I've said for the family lawyers. The law society must name the lawyers, with two additional non-lawyer members to be added.
Secondly, as Chief Justice McMurtry told our conference in April, "What distinguishes the clinics...is their ability to respond in a community-specific way" to the needs of those in poverty. Under your bill, Legal Aid Ontario shall "determine the legal needs of low-income individuals and of disadvantaged communities in Ontario" and "establish priorities for the areas of law, types of cases and types of proceedings for which it will provide legal aid services."
We believe it's understood that clinic boards will have a duty to do the same in their communities, but the bill is silent on this. Therefore, our board also voted, "That we request a 'housekeeping' amendment to section 39 of the bill to add the duty of a clinic board to determine the legal needs of the community served by the clinic, and establish priorities and policies for the clinic's services and methods of providing them."
Thank you, Mr Chair and members of the committee.
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The Chair: Thank you for your presentation. That affords us three minutes per caucus. We'll begin with the official opposition.
Ms Castrilli: Thank you very much, Mr Day, for being here. I must say I'm quite impressed by the fact that so many lawyers in your jurisdiction still take legal aid certificates. That's got to be a rarity in Ontario.
I'm interested in the comments you made with respect to the independence of this new body, Legal Aid Ontario. We heard from others yesterday that they believe it's not only an issue of independence, that the way it's currently structured this body will not be independent from the Attorney General and the Ministry of the Attorney General, but that indeed it might even be more difficult to deal with this board if the appointments are ideological appointments. That is, the board might in fact include individuals who don't believe in legal aid for all sorts of reasons that we've talked about this morning: The public perception may be that legal aid is only for others, not for themselves, for generally criminals and people on welfare, and, "Who wants to spend any money on them?"
I wonder if you might comment on that. You've made a number of recommendations, but what would be your preference with respect to the appointments to this board?
Mr Day: We certainly recognize that the Attorney General and the government should have a major role in the appointment of board members. It's important that there be a variety of views on the board; it's important that there be people with management expertise who are not lawyers who can bring a different perspective. Our concern is that this board has to negotiate with the ministry to persuade the ministry of what budget it needs, to negotiate a three-year financial plan, a five-year memorandum of understanding. There's a variety of things that this board has to negotiate with the ministry. That's a pretty clear conflict of interest if the majority of the members -- in fact, all 11 of them -- have been selected by the Attorney General.
Even if the Attorney General is given a list of five by the law society and approves them all, or if you amend the act to say that the law society can name the five, still the Attorney General selects the other six. When you have a board, a majority of whom have been appointed by the Attorney General, then having to sit down and negotiate with the government and say, "Look, the money you've given us is not adequate," it simply doesn't give the appearance of independence. It gives the appearance of a conflict of interest and it doesn't inspire lawyers in the front lines like our group to feel that this board is really going to stick up for them.
Ms Castrilli: Would you approve of the kind of precedents that we already have with the Provincial Auditor's office or with the Ombudsman's office, where the report is directly to the Legislature and not to the Attorney General himself?
Mr Day: There are some provisions in this bill for the board to have some direct relationship with the Legislature, which is good. I'm just looking specifically at the appointment process.
Ms Castrilli: But if the chair were to be someone who had to be confirmed by the Legislature and if the appointment process could be devised so that the appointments were more impartial, that would address a lot of your concerns?
Mr Day: The chair is already the subject of a fairly elaborate consultation mechanism, and if you added another bell or whistle to it by having them approved by some all-party committee, that might add further. My simple point is that there needs to be a couple of people on there, at least two, maybe more, who are not appointed by either the government or the legal profession.
Ms Castrilli: Thank you very much.
The Chair: We move to the third party.
Mr Kormos: Just because you're here and you commented on some of the historical phenomena within the legal aid plan, when you've got a higher demand than you have resources, I suppose you can raise the eligibility standard so that fewer people are entitled to certificates or entitled to legal clinic services; you can reduce the amount of block fees or hourly fees payable to lawyers who accept certificates; or you can delist services, as has been done, for instance, both in criminal and family litigation.
Where would you propose that the hit take place?
Mr Day: There's a variety of ways to do that, and the important thing really is that whoever is making that decision should have contact with lawyers who have to live with the result. There's not only restrictions on eligibility and delisting services; there's also restricting the hours on certain services.
For example, right now custody cases are given more hours than support but they are given the same hourly rate. One of the questions that one might have is whether support cases necessarily need to be given the same priority as custody cases. For example, in Durham, I'm aware of the fact that the few remaining senior lawyers who do take some certificates primarily do so in the area of child welfare law, children's aid society cases, because that's an area that they feel is a priority and they're prepared to take those cases at a reduced rate, but they won't take legal aid for spousal support. So there's a variety of ways of breaking that down. We're nervous that this decision will be made by management experts who don't really know what's happening in the courts.
Mr Kormos: On the issue of independence of this corporation, the previous submitters talked about an independent means of resourcing, and that is to say that the budgeting be independent of the political considerations by the government. That's obviously a legitimate observation, because I don't trust this government to maintain funding for legal aid. I don't think it's a high priority for this government. My fear is that subsequent governments may enjoy the same abandonment of legal aid as they reallocate resources into things like tax breaks for the rich people and so on.
Would you advocate that the bill contain some means whereby adequate funding is determined, independent of the cabinet?
Mr Day: That's basically why we want the board to be independent. Any government, as you know very well, can cut funding for legal aid. What we need is a board that will be prepared to say, "The repercussions of doing so will be thus and so," and make those submissions publicly and stand up for the users of the service.
The Chair: Thank you very much, Mr Kormos. We'll move to the government members.
Mr Bob Wood (London South): I would like to ask you a couple of questions about case management and the potentials therefor in the new corporation. Before I do that, I should declare my view that I think family law has tended to be pushed aside a bit because there are certain things that have to be done in order to sustain criminal convictions, so if push comes to shove, family law has tended to maybe get pushed off the stage.
Mr Day: No question.
Mr Bob Wood: I think as well, sometimes some of the not very glamorous parts of family law -- an undefended divorce can actually be quite important to somebody, and I think that's tended to get pushed off the stage in recent years --
Mr Day: That's been pushed completely off. That's now a luxury.
Mr Bob Wood: -- unlike what happened 25 years ago, when that was recognized as something that was important.
My question is this: Do you think that a strong emphasis on case management, with some discretion to the case manager, who presumably would be the new equivalent of the area director of legal aid, would be helpful? In other words, should the lawyer be able to go to the corporation and say, "Here's the case, here's what I think is needed," and the case manager then has some discretion to allocate resources, or to decline to allocate resources if there is really no case worth pursuing? Do you think that would be helpful or not?
Mr Day: Actually, that's what we have now and what we're nervous we may lose. The area director at the moment has discretion to allocate additional hours for a custody case or an access case that is turning into a monster. Right now, the area director can allocate a certain number of hours and then you come back and give an opinion letter: what's happening, why I need more hours. We hope area directors will be allowed some degree of autonomy. We're not sure whether that's going to continue.
Mr Bob Wood: Having heard your first answer, they could be given more authority?
Mr Day: They absolutely could be, and area committees in particular could be given authority to do some serious local planning. One of the options that's never been considered yet, as far as I can tell, although I really don't know why, is that local clinic boards are allowed discretion to be responsive to the needs of local communities. Area committees have no planning function. They simply hear appeals from refusals by the area director, although area committees are generally quite broadly representative of their community. Nobody has ever really considered, as far as I can tell, a pilot project of allowing an area to have a global budget and set its own local priorities. I think it would be a useful experiment.
Mr Bob Wood: What about the flipside of it, where the equivalent of the director could say: "This case has very little merit. We're allocating $750 and that's it"?
Mr Day: That happens now.
Mr Bob Wood: You'd support that in the program?
Mr Day: Oh, sure. You have to be able to do that; otherwise you can't deal with the cases that really need the service.
The Chair: Thank you very much for coming forward. We very much appreciate you taking the time to come today.
This committee sits recessed until 1300 of the clock today.
The committee recessed from 1200 to 1310.
CRIMINAL LAWYERS' ASSOCIATION
The Chair: I will call the standing committee on administration of justice, discussing Bill 68, the Legal Aid Services Act, back to order.
At this time this afternoon I call the first presenter forward, the representative of the Criminal Lawyers' Association. If you could identify yourself for Hansard, we would appreciate it. You may begin.
Ms Katherine McLeod: Good afternoon, ladies and gentlemen. My name is Katherine McLeod. I'm one of the vice-presidents of the Criminal Lawyers' Association. We want to express our gratitude firstly at being invited to appear before your committee. I've provided you with a summary of our basic submissions, so you can take that with you afterwards.
We have a number of concerns with the bill. The first one I've referred to in my summary is section 7, and that's the role of the advisory committees. You'll see under section 7 that the bill anticipates that advisory committees of essentially the service-providers sit, as it were, in the background and provide their expertise to the board. When this change in governance was being debated both among ourselves and in our consultations with the ministry, I think we were one of the first proponents of the idea that the stakeholders or the service-providers not be at the table as a voting board member, because we're aware of the squabbles that have gone on between the various bars over the period of time, but that there be advisory committees which report to the board and which are present at the board, not necessarily as voting members. So it doesn't seem the legislation provides for any link between the advisory committees and the board.
The link we have proposed is that they be present at the table to assist and advise, but not as voting members. That's our first, main concern. Essentially, we think that without this link there may be a concern about the lack of expertise on the board. We understand the reason why; obviously it's considered that non-lawyers should make up the majority of the board. That's our first concern.
Our second concern is with respect to section 70. In that, you will see that it's anticipated that the new corporation and the Attorney General should enter a memorandum of understanding to provide for funding for each successive year after the initial period of time. Our concern is that the legislation is absolute: They "shall" enter into an agreement. The problem is, what happens if they can't agree? What we're looking to see in the bill and what we'd respectfully suggest is that some proponent of binding arbitration or some provision for arbitration be contained within that so that it's not an all-or-nothing proposition.
The third part of our submission is what has been referred to obliquely in the legislation but more up front in the press releases issued by the ministry, and that is that the future budget, which is essentially the present budget, for the new corporation should also fund pilot projects in alternative methods of delivery. This is a concern to the Criminal Lawyers' Association on two bases. One is that there will be very valuable funds taken out of the present budget and put into potentially very capital-intensive projects and therefore deprive those who are really in need at the present time for the sake of capital projects.
The second adjunct to that is the type of pilot projects that could be anticipated. When you look at the purpose of the legislation, it recommends and appreciates the certificate method of delivery, which we know now as and refer to as judicare, where a client can go to legal aid -- and I'm only speaking about criminal matters here -- and say: "I fulfill the financial eligibility. Please, can you give me a certificate?" The client will then have that certificate and can trot off to a lawyer of his or her choice and say: "Here's my certificate. Please, will you represent me?" That's the certificate model, but it's also the judicare model, where the client has his or her right to counsel of choice.
There are other projects which have been debated. The law society, when it was debating them, expressly disavowed this particular method of delivery. There's something called franchising, which is similarly a certificate method, but what would happen is lawyers would bid for 50 certificates. They'd say, "Right, I want certificates 1 to 50," and they would bid an amount for that. That certificate method is not judicare. We caution that we're very concerned about that purpose in the legislation. We'd like to see it defined within the legislation a little more closely in saying not only that the certificate method be the foundation but that the judicare method would be the foundation for the delivery of criminal services in the province. That is a concern for us.
I'm going to jump to 5 before I go to 4 of our submission. Number 5 is essentially an appreciation. Very often the criminal and the immigration bar work hand in hand, because a criminal charge will generate immigration consequences. We have continually and continuously been concerned about the lack of support from the federal government for the immigration bar and for its prerogative, we think, to fund. That's a statement contained in our submission of our support of this government to continue its negotiations. We note that the immigration bar has essentially been disenfranchised under the new legal aid bill and we obviously have concerns about that, but we know that the remedy is with the federal government.
My last submission is perhaps what has generated the most concern among our bar, and that is under section 14 of the bill, which is entitled "Methods of providing legal aid services." You can see that it includes, under clause 14(1)(b), "the authorization of service-providers, by means of certificates, to provide legal aid services to individuals or a group of individuals." Under section 2 of the bill, "service-provider" has contained within its definition "paralegal." Paralegals, within the criminal law context, have become a real problem in the criminal bar. There have been numerous court cases whereby the competence of counsel has been challenged because an accused person facing a potential jail sentence of possibly up to 18 months has been represented by a paralegal.
Madame Justice Bonnie Wein, who heard a case called Lemonides, recommended that this was an area that the government of the day should look at for the purpose of legislating paralegals out of the criminal courts. We don't take an issue with them in the Highway Traffic Act and the provincial offences courts, but we're talking particularly about the criminal courts, where criminal sanctions are imposed.
There have been numerous recommendations, both by the uniform law conference and other court cases, that this is an area of particular danger within the criminal law field. What we see in the legal aid bill is an express provision that service-providers include paralegals. We're aware that under subsection 14(4) there's a statement that "A paralegal shall not provide legal aid services except under the supervision of a lawyer." But there's a juxtaposition here which we don't understand between 14(1)(a), which means they can get certificates, and subsection (4), saying they can't do it except under the supervision of a lawyer.
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We are looking for support within this bill for the exclusion of paralegals from getting any form of legal aid certificates within the criminal law field. Some might accuse us, saying, "It may be competition and that's why you're against it." I just want to highlight for the committee some of the problems with paralegals in criminal courts.
They are not regulated. When they speak to a client, there is not the protection of solicitor-client privilege. Should a client have a problem, there is nobody backing them, such as the law society that's sitting on lawyers' backs all the time to ensure that they're not negligent. There's nothing for the paralegals. When a crown attorney speaks to a lawyer, lawyers speak about cases as officers of the court. There is no such protection or such responsibility for a paralegal. There's absolutely no provision for them to have any training in law.
Indeed, in the case in front of Madame Justice Wein which led to her suggestions, one of the clerks of the paralegal whose performance was at issue, an office clerk, got up and very proudly protested that he too was now representing people on summary conviction matters in the courts, such as domestic assaults where people routinely go to jail. When he was asked what kind of training he had, he said he read a book by some guy called Hogg, not the guy in the East Mall but some other guy. He was of course, for those who understand him, referring to, we think, the constitutional expert Professor Peter Hogg, but that was the extent of his training.
One of the busiest paralegals in our criminal courts was only last week, on top of his previous convictions for fraud and for fabricating evidence -- he routinely appears in criminal court -- convicted of fraud again, whereby he represented to one of the social services that he had AIDS. He received $55,000 in benefits. He was found guilty. He received a conditional sentence of two years less a day, a conditional sentence meaning he doesn't go to jail; he serves it in the community.
These are the kinds of people who are appearing in courts under the name of "paralegal." We're extremely concerned that the legal aid bill does not exclude paralegals or, as we call them, paid agents, from appearing or from receiving certificates in the criminal law field. Our strongest submission is to urge the committee that of any amendments they make, that is the most significant from the criminal law field for the purpose of the administration of justice and for the clients involved.
Those, respectfully, are our submissions. I don't think I've used more than my allotted time.
The Chair: That allows us approximately two and a half minutes per caucus. We begin with the government members.
Mr Martiniuk: Thank you very much for your presentation. I must say I've travelled the province interviewing both lawyers' associations and paralegals -- outside of Toronto; I have not met with the Toronto group -- and I am not aware at this moment of anywhere in Ontario where paralegals are appearing on criminal charges. It may be at this moment a problem that only exists in this jurisdiction, being the city of Toronto. You said you were aware of one individual who has appeared in criminal matters recently?
Ms McLeod: Absolutely. His name is Maverick A. Maveric. I have transcripts. I personally saw him appearing before Judge Bentley and lying in old city hall about his record. He appears routinely. There are numerous agents who appear before the courts on a regular basis. Every day you will see them, day after day. They set up firms. They represent themselves. They have cards printed. If anybody wants to look at them, I have some of our submissions to the Lemonides case with cards where they've said "legal council." They've spelled "counsel" c-o-u-n-c-i-l. What does a client know? A client doesn't know any different. These guys represent themselves -- they never say, "I'm a lawyer."
Mr Martiniuk: You're getting away from the question. I'm asking you to educate me. I'm looking for individuals who are appearing in Criminal Code matters who are not lawyers, because it is not the intent of this act to in any way provide the certificates to paralegals, simply because paralegals do not form part of the legal aid panel. Unless you're on the legal aid panel, of course, you do not get a certificate. I think you would agree that members of your association, and perhaps yourself, have used paralegals or law clerks in your work.
Ms McLeod: Yes, and that's why I think I make the difference between paid agents who appear in court, who stand up and say, "I'm agent for Mr So-and-so or Ms So-and-so." Paralegals in the criminal law field send shudders down people's backs, but it's probably better defined as "paid agent." "Paralegal" certainly encompasses paid agents.
Mr Martiniuk: But you do recognize that law clerks or paralegals employed by lawyers have often been used in many fields, including the criminal law. You have no objection to that?
Ms McLeod: I have no objection to them. I have objection to them essentially practising law.
Mr Martiniuk: You've given me one name. In what courts have you observed this happening? I'm talking about locations.
Ms McLeod: It's been in Brampton; Oshawa; Toronto, on frequent occasions; in all the bureaus, if I may call them that -- the Toronto regional courts; I believe one in London that I'm aware of.
The Chair: We now move to the official opposition.
Ms Castrilli: You've raised a number of issues. You've set them out very well for us and I thank you. I want to focus on something that you mentioned but is not in your submission and that's the whole issue of the premises upon which our new legal aid system ought to be based. You obviously focused on judicare as the model.
As you know, this particular legislation was taken in part from the legal aid review that was done by Professor McCamus. It's his contention in his report that judicare as a stand-alone model doesn't work. He looks at jurisdictions south of border and to staff positions as the way to really deal with the "poverty community," as he calls it. I wondered if you might comment on that.
Ms McLeod: I can only comment from a criminal law perspective. That may well be the case in other areas, but certainly one's experience, or my anecdotal experience, from south of the border leads me to assume that the staff clinics, as they were, that man the criminal law field are a recipe for miscarriages of justice. Anybody who reads any of the problems that those lawyers have with lack of funding, lack of independence, the kind of workload that they have -- it's a recipe for disaster, and of course the sanctions are much greater in the US than they are here.
We disagree with Professor McCamus on many bases, but that is certainly one of them. The judicare model in Ontario has been held up as one of the finest models of a delivery of legal aid services in the criminal field.
Ms Castrilli: Let me ask you some questions about funding of the system as it now occurs and, more specifically, how it will occur under the new legislation. If we take the legislation at its legal word, what we're talking about is a system which essentially is frozen in time for the next three years at what it is now, and we know that's a cutback from what we've had in previous times.
We had a lawyer in Thunder Bay speak to us yesterday. He came from the Kenora law association and he said: "It's really short-sighted to cut back, because what you're really doing is creating social chaos. What criminal lawyers and lawyers doing legal aid work do in fact is a lot of social work, and the money that you spend up front now, you save in the system later." I wonder if you could comment on that as well.
Ms McLeod: A criminal lawyer's job is not simply what you see in court obviously. Criminal lawyers do what they can to prevent recidivism. But the problem with freezing funding at a certain limit, and this has been debated for years, is that this is not a client-driven litigation experience. This is driven by an outside agency, to wit, the state, the police. It's driven by whatever directives come down from whatever government department saying, "You must crack down on X, Y and Z." The problem is, having such a fixed budget, and such a limited fixed budget, does not provide for those kinds of initiatives, if I may call them that. It does have many, many ramifications for us. In terms of the social structure, you're talking to a criminal lawyer, and we see it all the time. Our concern is, of course, that the lack of funding does not allow us to spend the kind of time we would ordinarily be able to spend to assist our clients.
The Chair: Thank you for coming forward today. We very much appreciate your taking the time.
Ms McLeod: Thank you for your time.
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ASSOCIATION DES JURISTES D'EXPRESSION FRANÇAISE DE L'ONTARIO
The Chair: We call our next presenters, the Association des juristes d'expression française de l'Ontario. If you could come forward and identify yourselves for Hansard, we would appreciate it. You may begin.
M. Tory Colvin : Thank you, sir. Merci, monsieur.
Monsieur le Président, messieurs et mesdames les députés, je vous remercie tout d'abord de l'invitation. Je vous apporte l'heureuse nouvelle que cette présentation prendra bien moins de 20 minutes.
Je me permets de présenter Me Gérard Lévesque, notre directeur général, et Me Véronique Malka, une de nos membres de la ville de Toronto.
Nous sommes une association d'avocats, de juges, d'arbitres, de médiateurs et médiatrices, de fonctionnaires dans la justice, de professeurs non seulement en droit, d'étudiants et étudiantes, et d'autres qui ont un intérêt de promouvoir les services en français dans le système juridique ontarien. Notre association vise donc à assurer un accès égal à la justice, sans pénalité, délai, obstacle ou hésitation à l'utilisation du français dans l'appareil judiciaire.
Nous sommes heureux et reconnaissants aujourd'hui d'être parmi vous pour partager avec vous nos préoccupations à l'égard du projet de loi 68.
D'abord, je me permets de vous signaler que nous appuyons la création d'une société autonome pour fournir des services de haute qualité aux particuliers à faible revenu en Ontario. Compte tenu du mandat de notre organisme, nous limitons nos commentaires à l'aspect linguistique.
L'article 81 de ce projet de loi se lit, comme vous le voyez, que «La Loi sur les services en français ne s'applique pas à la société,» mais que le 1er avril 1999, cet article sera abrogé.
Pour nous, ceci représente un aspect positif de cette loi puisque, à partir du 1er avril 1999, la Loi sur les services en français s'appliquera à Aide juridique Ontario. Ceci représente une amélioration notable au présent régime, où les droits linguistiques sont, si vous voulez, une grâce accordée par la Société du barreau. Les justiciables auront donc le droit de communiquer dans n'importe laquelle des deux langues officielles et de recevoir des services avec l'administration centrale tant que les bureaux situés dans les régions désignées suite à la Loi sur les services en français.
Les services, cependant, au niveau de la communauté franco-ontarienne ne sont pas, à notre avis, adéquats. Il y a par exemple certaines cliniques juridiques qui sont en mesure d'offrir des services en français, mais il n'y a que trois qui ont été désignées, celles de Prescott et Russell, de Stormont, Dundas et Glengarry, et du Grand Nord. La demande de désignation de la clinique juridique de Windsor-Essex est présentement à l'étude.
Au cours des années, nous avons reçu des plaintes au sujet des manques de services en français dans certains de ces bureaux. Pour la plupart, il s'agit du manque de personnel apte à traiter des demandes d'aide juridique en français. Nous constatons aussi un manque de personnel apte à discuter avec des juristes représentant des justiciables d'expression française ou apte à répondre à la correspondance écrite en français. Nous avons constaté aussi l'absence de formulaires et de documentation en français. Il y a eu également un manque d'avocats de services pouvant s'exprimer dans les deux langues officielles en Cour de l'Ontario.
Au niveau pénal, le droit de plaider ou de s'adresser en français existe malgré que ce soit une région bilingue ou non, région désignée ou non, puisque nous parlons, bien sûr, de lois fédérales. Donc, cet aspect d'avocats de services est bien au-delà des régions qui sont désignées suite à la Loi sur les services en français.
Pour tenter de remédier certains de ces problèmes, nous nous permettons de vous offrir quelques suggestions à la page 3 de notre mémoire.
Nous suggérons qu'il y ait une présence d'expression française à tous les niveaux du nouvel organisme, notamment au conseil transitoire qui sera créé le jour où la loi recevra la sanction royale.
Nous recommandons aussi qu'un comité des services juridiques en français soit créé, et qu'il soit représentatif des juristes et des cliniques juridiques offrant des services en français. Nous recommandons que ce comité des services juridiques en français assiste le conseil d'administration aux comités consultatifs créés pour tout domaine prescrit dans ses tâches de détermination des besoins, sur le plan juridique, des francophones à faible revenu, d'établissement des priorités et des politiques à l'égard du genre de services d'aide juridique à fournir en français dans les divers domaines du droit et pour les divers types de causes et d'instances.
Nous suggérons que le comité des services juridiques en français voit à l'évaluation des services d'aide juridique offerts à la population franco-ontarienne, assurant ainsi la prestation efficiente de services bilingues.
Nous recommandons que dans chaque région désignée en vertu de la Loi sur les services en français, il y ait au moins une clinique ayant le mandat de faciliter l'accès à la justice pour les francophones à faible revenu.
Cela fait, nous offrons notre collaboration et celle de nos membres pour favoriser la création et l'administration d'un système d'aide juridique efficient et efficace, en mesure d'aider les Ontariens des deux langues officielles à obtenir et avoir accès à la justice dans la langue officielle de leur choix.
Comme toujours, l'AJEFO est prête à travailler avec vous tant que possible pour assurer que la dualité des langues qui existe en Ontario soit maintenue et, en même temps, que nous soyons en mesure de vous assister.
Merci, monsieur le Président, madame et messieurs les députés.
The Chair: Thank you very much for your presentation. That affords us a little over three minutes per caucus. We begin with the official opposition.
Mme Castrilli : Merci bien de votre présentation cet après-midi. C'est très clair, comme toujours.
Je veux poser deux questions. La première, c'est que vous parlez des cliniques qui sont maintenant désignées, mais ça ne comprend pas toutes les zones désignées, toutes les villes désignées. C'est ça ? Est-ce que vous pouvez parler un peu de ça ?
M. Colvin : Bien sûr, toute région qui est désignée suite à la Loi sur les services en français doit être en mesure de respecter cette loi. Donc, à notre avis, je dirais que les cliniques juridiques dans les autres régions désignées auront une obligation d'être en mesure d'offrir des services en français aussi.
Mme Castrilli : Pouvez-vous, pour le comité, parler de ces régions désignées ? Où se trouvent-elles, par exemple ?
M. Colvin : Eh bien, la ville de Toronto est dans une région désignée et donc, forcément, devrait être en mesure d'offrir des services en français. De même pour la ville de London. Les autres régions -- Windsor est dans une région qui est désignée bilingue aussi. Nous avons dans le nord-ouest la région de Thunder Bay, qui est désignée aussi. Donc, plusieurs parties de la province sont théoriquement sous l'obligation d'offrir des services en français.
Mme Castrilli : On ne peut pas comprendre pourquoi il y a seulement, je crois, quatre régions qui sont désignées maintenant qui ont des cliniques ?
M. Colvin : Trois qui sont désignées et une quatrième qui est sous étude à l'instant.
Mme Castrilli : Ce n'est pas beaucoup, hein ?
La deuxième question que je voulais poser est à l'égard de votre suggestion, comme vous l'avez notée. Quand je lis ce que vous avez présenté, le problème que je vois est que ce que vous proposez ne se traduit pas facilement dans ce projet de loi. Je voudrais savoir comment on pourrait incorporer ces recommandations dans le projet de loi.
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M. Colvin : Je dirais que le plus important, c'est que lorsque la loi parle des comités qui sont créés, la suggestion que nous avançons est qu'un comité pour les langues officielles pourrait peut-être aider la loi et pourrait peut-être aider à mettre en vigueur les aspects linguistiques, les obligations linguistiques, qui vont suivre ce projet de loi.
Mme Castrilli : Ce comité de services juridiques que vous proposez est au sein du projet de loi ?
M. Colvin : Je dirais que c'est la meilleure place pour mettre un pareil comité. Cela dit, nous avons toujours été prêts a travailler avec les organismes ontariens, que ce soit sur un plan officiel ou non officiel, afin d'aider d'avancer la réalité linguistique en Ontario.
Mme Castrilli : Est-ce que vous voulez la protection de la loi pour ce comité de services juridiques de langue française ? C'est ce que je vous demande.
M. Colvin : Oui, madame la députée, je dirais que ce serait avantageux.
The Chair: We go to the government members.
Mr Wood: I want to come back for a minute to the question of the clinics for each designated area. Have you done any work to ascertain what the minimum population is that's needed to support a clinic?
Mr Colvin: No, sir, I haven't. I don't know if Gérard has any background statistics on that or not.
M. Gérard Lévesque: À l'annexe du mémoire remis en deux tableaux qui viennent de Statistique Canada qui montrent la population au seuil de faible revenu en Ontario, vous avez les tableaux les plus récents du recensement de 1996 qui indiquent, pour les hommes et les femmes en Ontario dans l'annexe A, et dans l'annexe B on définit par les âges également, l'ensemble de la population, au niveau des francophones, ceux qui sont au seuil de la pauvreté, donc qui rencontrent les critères pour obtenir de l'aide juridique. C'est réparti également par région et c'est disponible pour les principales agglomérations de l'Ontario.
Comme vous le savez, le seuil de pauvreté varie dépendant de la taille de la famille, d'une part, et également de l'importance de l'agglomération. Statistique Canada fournit tous les détails. On peut voir qui sont les gens en Ontario qui sont au seuil de la pauvreté et on rencontre ainsi le critère pour bénéficier d'aide juridique s'ils ont besoin de services juridiques.
Mr Bob Wood: What I didn't see in the material -- maybe it's fair or maybe it's not or maybe you've done some research that's not in the material: What is the minimum population that you think is needed to support a legal clinic? Have you looked at that issue at all?
M. Lévesque : Pas pour créer des cliniques, mais ici la recommandation n'est pas de créer des cliniques. C'est de s'assurer qu'au sein des cliniques qui existent, il y en a suffisamment pour répondre au besoin dans chacune des régions désignées. Sinon, il faudrait créer presque du jour au lendemain une vingtaine de nouvelles cliniques pour desservir le besoin des francophones si on demandait la création immédiate d'une clinique désignée en vertu de la Loi sur les services en français. Mais il y dans plusieurs cliniques une capacité bilingue à l'heure actuelle qui pourrait être utilisée pour répondre à l'objectif qu'on a identifié, de faire que dans chaque région désignée en vertu de la Loi sur les services en français, il y ait une clinique qui soit en mesure de promouvoir l'accès à la justice pour les gens à faible revenu qui sont d'expression française.
Mr Colvin: In other words, sir -- that's why I passed the question to Gérard -- I don't think we've done any studies in terms of population versus numbers of clinics. Our association has essentially looked at the idea of French-language services rather than population-to-clinic ratio.
Mr Bob Wood: Am I picking up from what you're saying -- maybe I am and maybe I'm not -- that you don't necessarily see a clinic in every bilingual region; that you see a capacity to provide service in every bilingual region? Is that what I'm picking up, or am I missing it?
Mr Colvin: I think essentially what we would be looking for is a bilingual capability in each region. If it's impractical to have let's say a clinic in Pickle Lake, there is likely some clinic support for Pickle Lake that might come out of Kenora or Dryden or some such. If that is in a designated area, designated under the French Language Services Act, then whatever that service area is, it should be in our view capable of providing services in French.
That's probably a bad example, because I believe it's in the Rainy Lake area, which isn't designated, but if we use Armstrong in northern Ontario, which is in Thunder Bay, it would be a prime example. It wouldn't have a clinic but Thunder Bay itself might. It's a designated area, therefore the clinic in Thunder Bay that serves Armstrong should have an ability to offer services in French as it's part of that designated area.
The Chair: Thank you for coming forward today. We very much appreciate your taking the time.
Mr Colvin: Nice to see you again.
ADVOCACY RESOURCE CENTRE FOR THE HANDICAPPED
The Chair: We'll call our next presenters, if the representatives of the Advocacy Resource Centre for the Handicapped could come forward. If you could identify yourselves for Hansard, we would appreciate it. Thank you for coming. You may begin.
Ms Giselle Cole: Thank you. Good afternoon. I'm Giselle Cole. I'm the first vice-chair of the board of directors for ARCH, which is the legal resource centre for the handicapped. It's our pleasure to be here this afternoon.
ARCH is a specialty clinic. Before I even go any further, I apologize to my colleague. This is David Baker, who is the executive director at ARCH.
ARCH is a specialty legal clinic. It was mentioned earlier that there is such a thing. We serve the community of disabled persons across the province. We try to provide service for a wide range of disabilities and groups, cross-disability. We're talking cerebral palsy, mental health, the kidney association, the I could only find Thalidomide Victims Association of Canada
Thalidomide Victims Association of North America, those kinds of broad-range, cross-disability groups.
We're very proud of the reputation that we have garnered for our work in disability law -- I'd like to think we're world-renowned -- and have managed to produce a lot of very good works around the province and the country.
We're a very diverse group of people with many needs, and how we have chosen to go about it is we've pooled the community. We have 62 member groups and our board of directors is regionally representative of that membership. Being cross-disability, one of the things that we have done as an active board is we've taken the needs and the priorities of the communities as they have presented them to us at various forums: membership meetings, our annual general meeting and so forth. Of course, these priorities change periodically, but fundamentally they are basically the same and, until we can address the complete issue of barrier removal, they will never go away.
We've looked at assessing that and strategizing our plan of attack in order to meet the needs, and to maintain our quality of service we quite often have independent reviews to ascertain that we are in fact meeting those needs.
We provide a varied and wide range of services. We deal in public education: education of lawyers, up and coming as well as established. For instance, a few months ago I had the privilege of speaking at the bar eds at Osgoode on Disability Day, in which ARCH takes a leading role and had an entire day spent discussing disability issues.
We deal in legal policy. We give legal advice over the telephone as well as referrals to other clinics and lawyers. We have various publications. We have ARCH*ALERT, which is quick summation of something that is happening immediately, and our checked with ARCH
ARCH*TYPE, which is more of a concise quarterly report of what is going on with the law and disability.
We have a program for training the trainers. Those are people who do front-line work in various community clinics, law and other clinics, and we provide them with the basis of understanding certain issues pertinent to their clinics in regard to disability. Most of that is preventive work, trying to minimize the expense.
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Of course, our most important function is litigation. Litigation obviously is the most expensive, not only in terms of dollars but in time. But it is a fundamental part of who we are.
We cover a broad range of areas of law that have been identified by the community. We find that these areas are very important to the lives of people living with disability. We're talking about barrier removal, access to education, income, health issues, education and, more often than not, income tax -- a very confusing issue about your rights and entitlements there.
We recognize that it's very important for the community to be involved and that there must be accountability to the community we serve, not just so that we will use government dollars wisely, but our hope is to attract a good, solid volunteer base and availability to resources and other connections.
Finally, in my role as chair of the ethno-aboriginal outreach committee for ARCH, one thing has concerned me about this legislation: We support the ACLCO's position on legal aid for immigration and refugee law. When you throw in the component of a disability or the potential for disability, it is an area that certainly need not be left out.
Mr David Baker: The ARCH board of directors is generally supportive of the position you've heard this morning from the ACLCO. We also agree with the comment by Derry Millar on behalf of the law society legal aid committee this morning, that the Attorney General has generally done what was recommended in the McCamus report and what he promised to do with respect to clinics. So we're expressing general support for the legislation.
We would like to comment on two specific areas, aside from immigration and refugee, which Giselle has mentioned. Clause 13(3)(e) gives the broad power to make exclusions from the areas covered by legal aid. As Giselle mentions, in terms of disability, the range of areas of law that we cover are much broader than might be anticipated. She mentioned income tax, which I think most members of the public would not understand to be an area of poverty law or something that would affect people with disabilities, but it's actually a tremendously important area for many people, particularly families caring for members with disabilities. We cite that as one example of the importance of maintaining flexibility. Particularly in the area of disability law, we would be concerned about retaining clause 13(3)(e).
The other area we'd like to address with you is the inclusion, for which we commend the government, of mental health law as one of the areas. I don't believe you will hear from representatives of the mental health community, specifically from either the bar or from people who have mental health problems, but certainly ARCH has historically been concerned and has worked to establish adequate legal representation for people with mental health problems. It's a group that has a great deal of difficulty articulating its needs, which in and of itself, in some measure, we feel explains why people require legal representation when they have problems with the law.
There is a broad range of legal issues legislation which this government and others have worked to establish that relate to the liberty of individuals, the treatment they receive, the choices they make about where they will live, who they will associate with and, of course, their property. These are fundamental areas that most of us take for granted, and most of us have an ability to self-advocate or speak on our own behalf with respect to these issues. For a group that has difficulty, particularly in acute periods, we feel it's tremendously important that the legislation have the recognition that is in subsection 13(1), that the legal services which are relatively recent in their origins, going back just to the late 1980s and early 1990s, are reflected in the legislation and will be continued.
Those are basically the submissions ARCH wishes to make.
The Chair: Thank you very much for your presentation. That allows us a little over three minutes per caucus. We'll begin with the government members.
Mr Martiniuk: Is your funding totally from legal aid, then?
Mr Baker: No, there's funding from the Ministry of Citizenship for an information service that was established by the current government, and which we opened I guess in 1997. So there's an information service in non-legal areas that is part of our mandate. There is funding from a variety of other sources. Giselle has mentioned volunteer services, which are also part of the service we deliver. We've been able to persuade a number of lawyers to offer their services pro bono to members of the disabled community. There is some funding from the city of Toronto in support of the publications, which Giselle mentioned. Those are the primary sources.
Mr Martiniuk: I'm trying to be educated as to your organization. Do you consider your board of directors as representative of the community?
Ms Cole: I would say so. We represent many groups across disability. There are 13 or 14 of us on the board of directors from across the province. We like to think that we represent various areas of disability.
Mr Martiniuk: In that you represent people from across the province rather than a locality, how large is your staff?
Ms Cole: Not big enough by a long shot.
Mr Martiniuk: How small is your staff?
Mr Baker: The funding from the legal aid plan funds eight and a half positions, of which six are currently lawyer positions. Through our fundraising we have added some support staff: a receptionist and the other half of the secretarial position that's not funded. Then there is the information service, which I mentioned the Ministry of Citizenship initiated funding for in 1997.
Mr Martiniuk: Other than your board of directors, is there a volunteer group or is that not something that can be worked into this type of operation?
Ms Cole: Committees are normally chaired by board members, and we recruit volunteers to sit on those committees because those of us on the board sit on a number of committees. I think I sit on three. We do try to pull outside resources where we can, but that wouldn't be plausible to effect the business of ARCH on a day-to-day basis.
Mr Martiniuk: Lastly, what is a representative type of litigation that your organization would assist with, if there is such a thing?
Mr Baker: That would be very difficult because of the broad range of areas. We've mentioned education. Again, it's not that well understood, but children with special needs have entitlements to representation under the Education Act. The mental health area is another. Transportation is another. Federally there are mechanisms for addressing problems people have when their wheelchairs are broken or whatever when flying. Employment areas: people who have difficulty getting employment, staying employed and often are terminated because of their disability. That would be a preliminary attempt at describing it.
The Chair: We'll move to the official opposition.
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Ms Castrilli: David and Giselle, thank you very much for being here and giving us your views. I want to say to my friend Mr Martiniuk, with no offence to be taken by members of the committee, I hope, that your group is far more representative than the members of this community are.
I want to ask a couple of questions with respect to your presentation. One deals with a presentation we had yesterday in Thunder Bay by PUSH Northwest, part of the disabled alliance network. They pointed out that currently 84% of all legal aid certificates go to criminal law, which therefore means there's very little available for everybody else. It comes down to a question of funding. Of the 16% that's left, what is your share? It's probably not very big. They worry, of course, that a lot of cases fall through the cracks, people who need to assert their rights and often don't because they don't even know that they have rights.
My question to you is: Given what this act says about funding, are you satisfied that you're going to be able to meet the needs of the community you serve?
Mr Baker: I think the establishment of an independent decision-making body is of prime importance, certainly to start off. In criminal law, there are of course a significant number of people with disabilities. I would say they are proportionately represented. At least Mr Kormos, if not other members in the committee, would be aware that people with disabilities are in need of legal representation in the criminal field. There are huge areas of law that have not been addressed through the certificate programs, and community clinics are not yet providing services in those areas. We continue to urge that clinics look at those issues. We've had some success in going to the provincial director of legal aid and getting emergency certificates in particularly acute areas.
We've made representations -- and this was a prominent part of the McCamus report, which is not fully represented in the bill. I mentioned the mental health area, but there are a number of people with developmental handicaps and others who, because of their disabilities, have a greater degree of difficulty representing their own interests. Assumptions that are made when issuing certificates need to take those kinds of special needs into account. We hope the new legal aid commission will more fully address that. We hold out some hope that this body will be responsive, recognizing that there aren't all the guarantees one might like in the legislation.
Ms Castrilli: I'd like to be as optimistic as you and hope that the funding won't be an additional barrier. Let me ask a question, because I know the Chair is going to step in at any moment. The bill talks about geographic representation on this board. Does it trouble you that that's the only criterion, that they're not really talking about demographic representation but about geographic representation? Do you have any comments on that?
Mr Baker: Certainly the disabled community is a very high percentage of the low-income community in this province. There's no question about that. It's also a very diverse community within itself. Giselle has explained the range of disabilities that exist. While one would hope that someone with a particular disability might have sensitivity and some awareness of other disabilities, that isn't always the case. If the committee felt that particular low-income communities such as the disabled community should have some representation on the board, I'm sure the ARCH board would not take exception to that. Obviously it isn't something we've addressed in our presentation.
The Chair: We move to the third party.
Mr Kormos: At the end of the day, this all comes down to the fact that the bill has no minimum standards in terms of a level of legal aid services to be provided. There is nothing in the bill that sets the bottom level, and there's nothing in the bill that requires a government, this one or any subsequent government, this one or the one that's going to be elected six months from now, to fund that minimum level of legal aid.
In view of the fact that there's a guarantee in the legislation of stable funding for the clinic program for three years and stable funding of refugee certificates for two years but no inclusion of even a time frame in which there's stable funding, only the minister's promise, the minister's commitment, my concern is that this or any subsequent government will do through the back door what they wouldn't dare do through the front door, and that is to shut it down by simply defunding it, unless the corporation has a means of enforcing a minimum level of funding that would provide a minimum level of services. How do you respond to the absence of any minimum standard or any guarantee of funding for the overall plan?
Mr Baker: I think the ARCH board of directors and membership would say that there certainly is recognition within the disabled community of the importance of legal aid. We heard you this morning talking about difficulty in communicating to the public the importance of legal aid, and I think that's a responsibility the disabled community feels it needs to address. There would be no quarrel if it were possible to build into the legislation the kind of guarantees that I think you are describing. I remember the late Chief Justice of Canada, Brian Dickson, talking about how the courts are starting to address the issue of guarantees. This may be something that will be necessary if adequate levels of funding are not provided.
Certainly in the criminal and mental health areas we know that the courts have already made statements about the essential nature, in order to have charter rights protected. Whether the courts will be an adequate guarantee in the long term remains to be seen as well. Ultimately, I think that the community that benefits from legal aid needs to communicate. The needs of some communities are going to be listened to and understood better than others, and those communities particularly must speak to the public about the importance of legal aid.
COUNTY AND DISTRICT LAW PRESIDENTS' ASSOCIATION
The Chair: Our next presenter is the County and District Law Presidents' Association. Would you come forward and identify yourself for Hansard. Thank you for coming, and you may begin.
Mr David Sherman: My name is David Sherman, chair of the legal aid committee of the County and District Law Presidents' Association. A brief has been distributed which sets out the substance, and in fact probably goes on at greater length than I will about the position CDLPA advances with respect to Bill 68. As well, I have attached to that submission what is described as an orienter or background orientation document, which will give you much greater information as to what the County and District Law Presidents' Association is.
It's not my expectation that you will read that during this submission, and so I should indicate that the County and District Law Presidents' Association is an umbrella organization that represents the 46 law associations that lie outside the city of Toronto. The province of Ontario is divided into 47, and the 47th is of course Toronto. Regrettably, Toronto is not a member of our organization. For the most part, these associations are made up of practising lawyers in each of the 46 counties outside Toronto. Their memberships range from modest memberships of 45 or 50 lawyers to well over 1,000 lawyers. We represent the bar from as far away as Rainy River, down to London and out to Ottawa.
In general, I wish to state that the County and District Law Presidents' Association has always been very actively involved in the delivery of legal services under the existing Legal Aid Act, that in fact we're committed to the provision of high-quality legal services as defined both in the existing legislation and in the proposed legislation, and that we have worked closely with the administration of legal aid in delivery models and pilot projects. We're very supportive of much of the McCamus report and significant aspects of the proposed legislation. We particularly applaud the description of purpose and the statement of objects in sections 1 and 4 of the act.
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We have some concerns with the composition of the board. Under section 5, in terms of recommendations from the Law Society of Upper Canada and the Attorney General, of the 10 members of that board, five are nominated or proposed by each group. It is respectfully submitted by our organization that the Law Society of Upper Canada, being the governing body of the profession, is not necessarily representative of lawyers throughout the province. and indeed in terms of the geographic diversity recognized in the act, it is our suggestion that the County and District Law Presidents' Association is ideally suited for the purpose of ensuring representation in terms of geographic diversity of counsel, given the nature of our grassroots organization, that is, representing the 46 law associations that are spread across the entire province.
Of additional concern with respect to section 5, there is no provision in terms of the lawyer appointees to the board that they have some experience in the delivery of legal aid services, and in fact it's not contemplated. Indeed, at a recent dinner the Attorney General seemed to suggest that having lawyers on the board who deliver legal services under certificates was to be avoided, largely as a consequence of avoiding the resource conflict that has arisen in the past between the family bar and the criminal bar. It is the position of CDLPA that it's critical to a perspective of appropriate delivery to in fact ensure that the lawyers, at least two and preferably three of the lawyers appointed to the board, have experience in delivery of legal services under the certificate system.
To touch on advisory committees, it would appear that it's contemplated that there will only be three advisory committees, that is, an advisory committee in the area of criminal law, family law and clinic law. I recognize that the act provides for other prescribed areas of law and that mental health law is one of those prescribed areas of law, but for reasons that are not entirely clear, mental health law is left out of that definition. It is the position of CDLPA that it should return to that definition or be specifically stated and that there should be an advisory clinic in the area of mental health law.
It is additionally our position that the advisory committees would be best set up not as a central provincial committee in and of itself, but rather on a regional basis. That in turn moves into our position with respect to the division of the province into areas.
The proposed division into areas appears to mirror the existing areas and area committees that are currently operating under the act. Those area committees are made up of members of the community and lawyers within those communities. It is CDLPA's position that that provides a wonderful resource of people who have long experience in the delivery of services under the Legal Aid Act from whom members could be secured to sit on regional committees, and then from those regional committees perhaps an appointee or two appointees could then move on to the provincial advisory committee. In effect, we're proposing a pyramid scheme of advisory committees so that the fundamental street level delivery of legal services is communicated up to the provincial panel so that the provincial panel has more than just a principal perspective of delivery of services in the province but in fact has a clear recognition of what it's like in the trenches and what the needs of the community are on the street, as opposed to here in Toronto.
Methods of providing legal services: One of the grave concerns that CDLPA has with respect to the provision of legal services is the definition of legal service-providers, including the phrase "paralegal."
As no doubt all of the members of this committee are aware, in January of this year the Attorney General began a review of paralegal activity in the province, prompted at least in part by a submission by the Paralegal Society of Ontario that they were actively seeking regulation. They wish to define the parameters of their activity and to become a self-regulating body. This coincided with the work of a number of ad hoc committees out of the bar on paralegal issues.
In June, a committee was established by the Attorney General for the purpose of studying the issue. That committee was made up of CDLPA representatives, CBAO representatives, Seneca College, the Institute of Law Clerks of Ontario, the Paralegal Society of Ontario and various government lawyers. Two subcommittees were created. Those reports are finalized. They've been submitted to the Attorney General's office. Recently the Attorney General indicated that these reports are under consideration and he is moving forward with respect to consultation with a variety of interested organizations.
I would like to point out that in a March 1997 position paper advanced to the Attorney General by the Paralegal Society of Ontario the question was posed, "What is a paralegal?" The response was, "A widely accepted definition of a paralegal has not been established." The report of the paralegal society went on to state: "Paralegals are currently operating without standards of practice, disciplinary procedures, or mandatory insurance requirements. Implementation of such measures would ensure that the public is protected from incompetent or unscrupulous individuals."
I recognize that the legislation provides for supervision by a lawyer and specifically says that a paralegal shall not deliver unless under the supervision of a lawyer. However, the act does not define what "under the supervision" means. It does not describe how many paralegals may be represented by a single lawyer. It provides for the establishment of paralegal panels. It gives the mandate to area directors to select membership for those panels but does not define any criteria for selection or qualification. The area directors are left in the unenviable position of existing in a vacuum as to who or what is a paralegal. What qualifications do they need to be entitled to receive a certificate? None of those qualifications exists in the act, and the area director is left without any guidance as to how to empanel these members.
The panel itself is open to paralegals who have an existing practice or an office within the community. With respect, it seems to imply that it's not anticipated that the paralegal will have to work within the office of a lawyer or under the direct supervision of a lawyer, but in fact can have an independent office, hang out a sign that says, "Legal aid accepted," and somehow work out an arrangement with an off-site lawyer for the undefined supervision.
There is no regulatory body for paralegals. If some difficulty arises with which the public is concerned and a complaint must be advanced, the only person or body to whom the complaint can be advanced is to the corporation or to the area director and the only penalty that can be imposed is removal from the panel. They are not subject to discipline by any governing body whatsoever.
A further difficulty is with the delegation of responsibility. Currently, if a lawyer has a law clerk or a secretary and work is assigned to those individuals on a file representing a client, those individuals are supervised directly by the lawyer. A paralegal, on the other hand, may find himself or herself delegating work to a secretary or clerk for completion, and as a consequence the supervision, whatever it ultimately may be, is diluted significantly.
It's acknowledged that during the crisis in legal aid a few years back there was difficulty in some members of the public accessing lawyers, particularly in the area of family law. There were many reports of individuals walking the streets with certificates, going to a number of law offices and finding lawyers refusing to accept them on the basis of a certificate. I would suggest, with respect, that that situation no longer exists. There is currently no shortage of lawyers who are prepared to do legal aid services work.
As a consequence, I would further suggest that the inclusion of paralegals in the definition is a cost-saving measure and a cost-saving measure alone. For the reasons I've already given, I would suggest it's premature, given the unregulated field from which paralegals come and the uncertainty of what even constitutes a paralegal. It's ill-advised and I would suggest that until such time as the Attorney General moves forward in establishing some regulatory scheme for paralegals or the paralegals, through a coordinated effort with the bar and other groups, advance an acceptable model for regulation themselves, the only response that would be reasonable is to remove paralegals from the definition of service-providers under the act.
I believe I've used up my 10 minutes, so I'll stop here.
The Chair: It's a total of 20 minutes.
Mr Sherman: Oh, I can go on for 20 minutes.
Mr Kormos: We get to ask questions and you get to respond, if you stop now.
The Chair: If you so wish.
Mr Sherman: I understood that you'd like to break it up into --
The Chair: The choice is yours.
Mr Sherman: I'm prepared to stop now and entertain questions, and if there are none, I'll continue on.
Ms Castrilli: There are some.
The Chair: Thank you very much. You leave us approximately three minutes per caucus and we begin with the official opposition.
Ms Castrilli: Thank you very much. The time allotted never allows for the exploration of in-depth papers like yours. I know we all feel very badly about that.
I've heard this before about paralegals. The Criminal Lawyers' Association in fact brought this issue up earlier. Are you aware of legal aid certificates actually going to paralegals?
Mr Sherman: No. Under the current act?
Ms Castrilli: Yes.
Mr Sherman: No. In fact, the Attorney General raised that a few weeks ago and I was somewhat taken aback by his suggestion that certificates are being issued directly to paralegals. My understanding of the existing act is that it's not provided for.
Ms Castrilli: I'm having trouble understanding why it would be an issue. Let me take you back to Professor McCamus's report, because that's the genesis of a lot of this. In his recommendations in his report he talks about a diversity of models for delivering legal aid services. He specifically talks about staff lawyers and supervised paralegal components. I don't know if you've had an opportunity to read that section, but I'm wondering why there would be such diverse views within our legal community on this issue.
Mr Sherman: It is my view that McCamus in his report when describing paralegals was being somewhat generous in his definition. What he was referring to and including in the definition of paralegals would be what many counsel currently look upon in their offices as law clerks and other individuals who have been trained and are truly acting as an aspect of a law office itself, not the type of paralegal activity that's contemplated by this act.
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What is of concern in this act, and I think it's most greatly reflected in the establishment of panels of paralegals with independent offices under the authority of the area director, is that really what they're looking to is the delivery of some form of legal services by way of independent paralegals, as opposed to a paralegal who is employed. That term "paralegal" covers a broad range of activities and a broad number of different individuals offering different legal services.
It's my view that what McCamus was describing was in fact an individual who was employed directly in an office, such as a staff office, or directly within the office of a lawyer and who could perform services under the direct supervision of that counsel. That was then in the interests of the public. My preference, frankly, would be that the certificate in those circumstances be issued to the lawyer, primarily because then it, if you will, puts the lawyer directly on the hook in terms of negligence and responsibility for protecting the interests of the client.
If a certificate is issued directly to a paralegal under the general supervision of a lawyer, the question arises, who is responsible in the event negligence arises? Is it the corporation that's responsible? Is it the supervising lawyer who's responsible? What remedy does the client have if the action is badly handled? That's not at all clear.
The Chair: We now move to the third party. Mr Kormos.
Mr Kormos: I do want to indicate that in this whole proposition of unregulated paralegals, I agree the language "premature" that you use is probably the most generous language that could be used, and you're not the only source of that comment. But at the end of the day, this is all about adequacy of funding, isn't it?
Mr Sherman: No. At the end of the day it's, in my view, sir, all about the proper administration of justice and ensuring that the citizens of this province are protected under the umbrella of the rule of law. I agree with you entirely that if funding is inadequate, we're going to fail in that effort. My concern is that in order to meet inadequate funding levels, the government may turn to a service delivery model that does not achieve that prime principle of ensuring that the public of this province is protected on an appropriate use of the rule of law.
Turning to paralegals who are not trained, not regulated and of uncertain qualifications to perform the task of delivering legal services is an avoidance of the obligation of the government of this province to ensure that our citizens have appropriate legal representation. I don't mean to belabour this point but, although we are dealing with the poor and disadvantaged, I think it's important to acknowledge that their rights and their needs are every bit as legitimate as people of independent means. People of independent means get to hire a highly qualified lawyer and the disadvantaged get to use uncertain, untrained paralegals.
Mr Kormos: I agree with you in every respect. My concern is that this government and subsequent governments are going to do through the back door what they can't do through the front door, and that is effectively defund legal aid.
I put this to you. You, like every other Ontarian, and I don't know what your income level is, have received a 30% cut of the provincial portion of your income taxes. Would you be prepared to forfeit that cut if it meant adequate funding of legal aid plans, among other things?
Mr Sherman: Given the extraordinarily modest needs of the administration of justice in this province, I don't think it would come anywhere close to needing to forfeit the 30%. But in response to that question, yes. With respect, I find shocking the funding levels that are given to the administration of justice in this province when compared to other areas. The amount of money that the province spends, $25 million, sounds like a great deal of money but not when compared to the balance of the budget. We do not spend a great deal of money on the administration of justice in this province. It wouldn't take much of a modest reduction, and that 30% tax relief that you described would more than adequately fund the administration of justice in this province.
Mr Kormos: Heck, if all of it were rolled back for only those 6% earning more than $80,000, we could restore funding to health care; we could restore funding to public education; we could adequately fund a legal aid program. Sounds good to me.
Mr Sherman: I wouldn't disagree with you.
The Chair: We move to the government members.
Mr Martiniuk: Thank you for your presentation. It's most informative. I take it your interpretation of the act as it stands is that paralegals could be awarded a legal aid certificate.
Mr Sherman: I think it's absolutely clear in the legislation, yes.
Mr Martiniuk: That's your opinion?
Mr Sherman: Indeed. When you look to the section that deals with service delivery, it talks about service-providers being granted certificates. I believe you will find that under clause 14(1)(b): "The authorization of service-providers, by means of certificates, to provide legal aid services to individuals or groups of individuals." If you return to the definition section of the act, "service-providers" are defined to be paralegals and mediators.
If you then move on, clause 23(1)(b) describes, "The area directors may establish, in accordance with the regulations...panels of service-providers who maintain an office or have an established practice in the area and who agree to accept certificates to provide legal aid services;".
Again, the definition of "service-providers," when you return to that definition section, "means a person, other than a lawyer, who provides legal aid services, including a paralegal and a mediator;".
Mr Martiniuk: OK. I'm interested in your opinion as set out on page 2, dealing with the composition of the board. I take it you wish the law society nominees or recommendations be reduced to two and that three be recommended jointly by your organization and the CBAO. Is that correct?
Mr Sherman: That's correct.
Mr Martiniuk: I understand there are ongoing discussions regarding amalgamation between your -- how long have those been going on?
Mr Sherman: Those negotiations have been in progress for almost two years.
Mr Martiniuk: Have they? Well, they must be near the end.
Mr Sherman: I would hope so.
Mr Martiniuk: I certainly would too. I'd like to see lawyers co-operate together; it would be refreshing. But the remaining three, is this some reflection on the law society and their recommendations?
Mr Sherman: With respect, I'd suggest that the suggestion of the remaining three is not so much an adverse reflection on the law society as rather the view that the law society is predominantly Toronto-centred and urban-centred and does not necessarily reflect the needs of the province as a whole. County and District, on the other hand, because of its far-flung associations -- the northwest is a wonderful example -- is in a much better position to meet the geographic diversity that is recognized in section 5.
Of interest, I can't speak for the Canadian Bar Association but, in the County and District association we operate on the principle of one association, one vote. As a consequence, a small association such as Kenora that has 100% membership, and that makes up about 45 lawyers, represents a huge geographic region in this province and has the same power and sway before our executive board and our plenary sessions as an association such as Ottawa that has many thousands of members. That is designed specifically within the context of CDLPA to ensure that there is an equal voice from each area of the province, recognizing the very disparate needs between a remote, rural area of the province and a highly urbanized centre such as Ottawa or London or Hamilton.
Mr Martiniuk: That's exactly the right answer for a person with a practice outside of Toronto for 30 years.
The Chair: Thank you very much for coming forward today. We very much appreciate that.
ABORIGINAL LEGAL SERVICES OF TORONTO
The Chair: We call on our next presenters. If the representatives of the Aboriginal Legal Services of Toronto could come forward and identify yourselves for Hansard, we would appreciate it. Thank you for coming. You may begin.
Mr Jonathan Rudin: Thank you very much. My name is Jonathan Rudin. I'm the program director at Aboriginal Legal Services of Toronto. With me is Kimberly Murray, who's the director of the legal clinic at Aboriginal Legal Services of Toronto.
We'd like to thank the committee for allowing us to make the presentation today. We have distributed a brief summary of our presentation. We're here in particular with reference to clause 14(1)(f) of the proposed Legal Aid Act which states that the legal aid corporation "shall provide legal aid services by any method that it considers appropriate," including subsection (f): "The funding of aboriginal legal services corporations is to provide legal aid services to aboriginal individuals in communities."
I'm not sure, but I suspect we will probably be one of the few, if not the only, organization here to speak on this issue, and we would like at the outset to say that we think this is a very good suggestion to put into the act. We have some suggestions that Kimberly will be talking about in a moment about how to integrate that more fully within the act.
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I thought I would briefly talk about our organization, because it is, I think, the model for the notion of an aboriginal legal services corporation. Aboriginal Legal Services of Toronto, in its initial planning, was meant to be a one-stop location for aboriginal people in conflict with the law in Toronto. The planning was done by the Native Canadian Centre of Toronto in the late 1980s. The vision for the organization was one that would have within it both services for aboriginal people in conflict with the law, such as aboriginal criminal and family court workers, a program that is currently funded by the Ministry of the Attorney General along with the Federal Department of Justice; family and young offender court workers, funded by the Ministry of Community and Social Services and the Federal Department of Justice; as well as a legal aid clinic providing the range of poverty law services that clinics provide; as well as services specific to aboriginal people in a variety of issues, and Kimberly will probably talk about some of those; also, the provision of family and criminal law services as well. The idea was that all these programs would be under one roof.
At Aboriginal Legal Services of Toronto, when we were funded, when we were created, the clinic funding committee told us in no uncertain terms that we could not have criminal or family law services provided at our organization, so at this point we do not have that.
In addition, in terms of our organization, we also have an alternative justice program, known as the community council, which has been functioning since 1992. It's an alternative criminal justice process, the first one of its kind in urban areas in Canada, that is funded by the Ministry of the Attorney General and the Department of Justice.
The idea for having an aboriginal legal services centre such as ours, and I believe the idea behind including this in the legislation, is that aboriginal people have particular legal needs that are best served by an organization that represents aboriginal people, is comfortable and is welcoming to aboriginal people. The more people can access a range of services in one place, the less likely it is that anyone will fall between the cracks and be lost. I don't think we have to go into detail for this committee about issues in terms of aboriginal people and overrepresentation in the criminal justice system, as well as in family, young offenders, child welfare and a whole range of issues.
The idea behind the aboriginal legal services centre, and why this seems like such a good idea to us and we were so happy to see this in the legislation, is that it would allow for the creation of other organizations such as Aboriginal Legal Services of Toronto across the province. It would also allow for one organization to provide all the services. I would just let the committee know that ALST as an organization was forced to break up into two corporate entities last year, by the clinic funding committee in particular, which was concerned that the vulnerability of the non-clinic programs to funding cuts might mean that if we were one organization we could default on our lease or something like that. We now have two organizations in one location, with the same board of directors sitting in two areas. We pay double insurance -- you know, slip and fall insurance -- and everything, and we have two photocopiers. It's not exactly the ideal situation.
I will turn to Kimberly now to talk about how to integrate some of these suggestions specifically in the legislation.
Ms Kimberly Murray: As Jonathan said, I'm the director of the legal clinic portion of our services, and we're funded by the Ontario legal aid plan. The services we provide are very similar in a sense as the other clinics', and I think you've heard from other clinic representatives; we do the welfare cases, the employment law cases etc. But we also have a strong component where we do aboriginal rights issues. We've appeared before the Supreme Court of Canada a few times this year on aboriginal-specific issues. We do a lot of work under the Indian Act.
On top of the work we do in Toronto, we get calls from all over Canada to our services. We get calls from all over Ontario from the other clinics, when people have aboriginal clients and they need some assistance and guidance on where to go and how to work with the Indian Act. We're very pleased to see this section in the bill that recognizes the unique nature of aboriginal people and the legal needs they have.
One of our concerns is that now we have this in the act, we want to make sure it's implemented correctly. Our first concern is with the board of directors of the corporation. We'd like to see in section 5 that there be a recommendation that one of the board of directors be an aboriginal person.
The history of our services and why we were created is because aboriginal people weren't going to the other legal aid clinics in Ontario. Part of that reason is the cultural experience of going to those other clinics; there's a cultural clash. We feel that in order to develop proper aboriginal legal services, we have to have at least one aboriginal person on the board of directors who understands the legal needs of the community.
In turn, that leads to the recommendations with respect to the advisory committee. If we're going to set up the aboriginal legal services, we need an advisory committee that understands the specific legal needs of the aboriginal community, specifically the needs that Jonathan mentioned earlier.
The other concern we have -- as Jonathan mentioned, we are this combination of different services with different funders, so we don't really fall into any of the categories under section 19 or section 33 of the legislation, which deal with the staff office model and the clinic model. We would like to have criminal and family law lawyers on staff so we're sort of a combination of the staff model and the clinic model. In turn, we don't want to have our criminal and family lawyers hired by the corporation; we'd like to have those people hired by our board of directors at Aboriginal Legal Services of Toronto so they can determine who is the most qualified to provide the legal services to the community we service.
Finally, the last concern we have is with the monitoring and funding of the aboriginal legal services. Because we're not similar to the other clinics -- because we're not identical to them and we're not identical to, say, a staff model -- we don't feel we can be judged or assessed according to the quality assurance program next to a non-aboriginal service that exists in Ontario. You can't put a clinic next to us and compare us to that clinic because we're so different. It's important under the bill that when quality assurance programs are being operated, they don't apply the same cookie-cutter method to our clinic, because it doesn't work. We've had numerous problems with our funders and conflicts because of what we were being compared to.
Jonathan has another recommendation.
Mr Rudin: We've suggested a couple of additions to the act. In the interest of saving trees, we also have a suggestion for taking something out of the act. We have a great concern about section 16 of the act, which says the corporation is entitled to place an application fee for people who are applying for legal aid. There is currently no application fee for legal aid, but that was in place for a number of years, and we can tell you from the point of view of our clients, and not just our clients but from across the province, that the effect of the application fee was to deny access to people who had a perfect right to legal services.
The application fee is not a way to raise revenue. If the concern is to raise revenue, the corporation can, through its assessment of the individual's financial needs, make arrangements for repayment of legal services. But our experience was that the application fee deterred people from applying. In fact, in some cases it was used, perhaps inadvertently, by staff at legal aid to deter people from applying. We can't see an application fee providing any positive assistance in terms of access to legal services. It simply is a barrier that will lead to denial of services, and we would urge very strongly that that section be taken out of the act.
The Chair: Thank you very much for your presentation. That affords us three minutes per caucus; we'll begin with the third party.
Mr Kormos: If this government or any other government were to defund legal aid services, which the act entitles them to do by virtue of there being no guaranteed funding or no minimum standards, what would that mean in the case of ALST? Other than it being shut down, what would that mean to the justice system in Toronto vis-à-vis aboriginal peoples and/or other utilization of ALST by aboriginal peoples?
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Mr Rudin: First we should recognize that it's not simply a decision to cut legal aid that would have an impact. If the province ceased to make contributions to the court worker program, if the province ceased to fund the alternative justice funding, any of those things would result in those programs ending. Certainly our criminal and family services provide a service to the courts that has been recognized by judges, by crowns, in Toronto and across Ontario. There would simply be more people clogging up the courts, unrepresented, pleading guilty.
Aboriginal people are already overrepresented in Ontario jails. It's something that people may not be aware of, but aboriginal people make up 1.4% of the Ontario population and they make up 8.3% of admissions to provincial correctional facilities. The overrepresentation of aboriginal people in jails in Ontario is of the same degree that it is in western provinces. I will just speak in terms of that. Kimberly can talk about the impact on legal aid.
Ms Murray: If we were to be defunded in the clinic sense, I imagine we'd go back to where we were pre-ALST, where our community wasn't accessing legal aid, wasn't accessing the services provided by legal clinics. Again, the studies show that they didn't feel comfortable going to those clinics, didn't feel those clinics met their needs. So there would be a big gap for aboriginal people. There would be no legal services available to them on both the clinic and the criminal justice side.
Mr Kormos: You know why I'm asking that. By and large, the general opinion out there among the public is that they don't like to see their tax dollars pay to defend criminals. I'm not telling stories out of school. That of course ignores things like presumption of innocence. My fear is that governments that cater to that sort of right-wing perspective may see an opportunity there, in a somewhat populist way, to accommodate that sort of bias. So I'm wondering, what do we say to the taxpayers of this province?
Ms Murray: That it will cost them more money, because they will be incarcerated, and aboriginal people are already overrepresented in the institutions. If they don't have lawyers, as they do now, they are more likely to plead guilty, so we'll have overrepresentation in the system. It has been proven to cost more money to jail someone than to not jail them.
Mr Kormos: I'm inclined to agree with that.
The Chair: We now move to the government members.
Mr Martiniuk: Thank you very much for your presentation. Is this particular clinic unique in Ontario?
Mr Rudin: Yes.
Mr Martiniuk: Do you service persons from outside of Toronto, therefore, in certain cases? You're not telling anything out of school. If a person from outside of Toronto were to phone, would you turn him away?
Ms Murray: Depending on the issue. Our mandate is the city of Toronto area. We can ask our board to exempt certain people, and we do that on a number of occasions. When it's an important legal issue, a law reform issue, we will do that. That's just the clinic side.
Jonathan, what does your side do?
Mr Rudin: We also have requests for our services from outside of Toronto. Our alternative justice program -- we'll go to Brampton and Oshawa. Certainly it's one of the reasons we think the idea of an aboriginal legal services organization makes sense. What's striking to us is the number of people who call us from outside of Toronto. It's always interesting that they even know we exist. If that service was available to them in a more local area, it would certainly make much more sense for them, because they could get more than simply telephone advice.
Ms Murray: Right. That's what we do now. We try and give as much advice over the phone or hook them up with their legal clinic. Say they're calling from a northern community; the problem is that with the northern clinics, there are many areas of the law they won't practise. In particular, they refuse to take any action against a band council, and a number of the community members living off reserve have issues with their band council. They have nowhere to go for assistance on that, so often we'll bend the rules for those cases.
Mr Martiniuk: It might be a little off topic, but both my fellow commissioner and I travelled to Manitoba to take a look at the citizenship courts, of which they have 70, and I think over 10 are native exclusively. They were very effective there. I assume you feel your system is effective here?
Mr Rudin: Yes.
Ms Murray: Actually, in Winnipeg they just created Aboriginal Legal Services of Winnipeg, and they used us as a model. I think we had people in from Saskatchewan, is it? People come in to use us as a model.
Mr Martiniuk: This is a tricky question, if I may; I pre-warn you. With a community courts system, whether exclusively native or otherwise, I feel that one of the elements of appearing there is the element of what I call good shame rather than bad shame. Does that form an element in your diversion program?
Mr Rudin: The idea behind our diversion program is to allow the offender to take responsibility for what they do, to make sure they do that, and also then to take the steps necessary to make the change in their life to lead to their moving to a more positive lifestyle.
What's important to recognize about the people we work with, which may not be similar in other places, is that over 40% of the people we see in our program have been adopted or in care, and 60% to 70% have no connection with the aboriginal community whatsoever.
Toronto has over 60,000 aboriginal people. In our diversion program, we work primarily with people who have been estranged from the aboriginal community, often not through their own volition, and who are trying to find a way back. Unless they can find a way back, they won't find their way out of that jail-street cycle. They know who they are in a negative sense, because they've been told that by their teachers, often, unfortunately, by their foster parents or their adoptive parents. They know that in many people's eyes they are nothing. They are an Indian, and they have no positive sense of what that means.
We've had very moving and difficult hearings where people have said to the members of our community council, "I've never been in a room where there have been three sober Indians before." It's not that that's a remarkable thing; it's just that for them that's not a reality that's ever been shown to them.
What's particularly important about our program, we think, is that people have very positive role models, people living in Toronto, some of them with good jobs, some of them unemployed, but all of whom are living a good life in Toronto, a meaningful and productive life, one that's integrated between the aboriginal community and the non-aboriginal community.
The Chair: We now move to the official opposition.
Ms Castrilli: Your institution, your clinic, the services you offer here in Toronto are obviously quite successful. What we're engaged in here now is trying to devise a new form of legal aid, I hope, a reform of legal aid that will meet the needs of the entire province. With that in mind, I wonder if I could ask you some questions about how we use your experience to provide an effective service for aboriginal people throughout Ontario.
Let me tell you that yesterday in Thunder Bay we were given a presentation by two very thoughtful women who were part of the Native Women's Association of Ontario, very courageous women who came forward and spoke up about what alternative justice means for them and how they as women have really been victimized within the Indian community. They recounted an example of one chief, for instance, who had been found guilty of sexual assault and was permitted to live out his sentence in relative comfort to ponder his ways, but there was no justice provided for the women involved.
I hear what you're saying about alternative justice. I'm wondering how you reconcile those two realities and if there is any way that you can give us any advice.
Mr Rudin: Certainly in Toronto the way we're able to deal with this is that we work with the entire community. On our diversion program, for example, we have people who work with native child and family services, the native women's association. So we consult widely. I think one of the strengths of the aboriginal legal service organization model is that it can be located, for example, not on a reserve. The idea would be that it could be located in an urban area.
As Kimberly mentioned, sometimes there are real issues between band members and band governments, and there is no way for those to be resolved. Many legal clinics, if they go on to reserves, will not challenge the band government, because otherwise they won't be able to come back. It's important that people have an outlet where the organization they talk to understands their issues and their needs. I think the idea of an aboriginal legal services organization is that it will be able to do that. It will be able to call upon the resources not of a small community necessarily, but of the surrounding community and the urban community. I don't think the problems that these women spoke to you about are as likely to have occurred in Thunder Bay, where I know, for example, the alternative justice program is run by a woman, the friendship centre there is run by a woman. They are not as likely to occur in that context.
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By setting up legal services organizations which would have the opportunity to combine criminal law, family law, clinic work, court workers and alternative justice under one roof, you'd be able to address those issues in a much more meaningful way.
Ms Castrilli: Would you think that requires substantially more funding than is given now?
Mr Rudin: Right now, for example, in Thunder Bay there is already funding for court workers, there's already funding for an alternative justice program. It would be a question of integrating them. But yes, at some point it may be more funding because, as Kim said, aboriginal people aren't accessing in many cases the legal services they are entitled to.
The Chair: Thank you very much for coming forward today. We very much appreciate your taking the time to present to us.
COUNCIL OF ELIZABETH FRY SOCIETIES OF ONTARIO
The Chair: We will call upon our next presenters. Could the representatives of the Council of Elizabeth Fry Societies of Ontario come forward. If you could identify yourself for Hansard, we would appreciate it. Just to be sure you know, there are 20 minutes in total allocated time. At the conclusion of any presentation, the time is divided equally between the three caucuses for questions and answers. Thank you for coming, and you may begin.
Ms Elaine Bright: I'm Elaine Bright. I'm the executive director of the Elizabeth Fry Society of Hamilton, Ontario, but I'm here on behalf of the Council of Elizabeth Fry Societies of Ontario. Written submissions were distributed, and there's a short covering letter with them. It talks a bit about our organization and gives a summary.
The Council of Elizabeth Fry Societies of Ontario is the regional voice for women in conflict with the law in Ontario. We have nine member agencies in Ontario based in Kingston, Ottawa, Peterborough, Peel and Halton, Simcoe county, Sudbury, Toronto, Kitchener-Waterloo and Hamilton. Some member societies also work with men in conflict with the law. The member agencies work for and with women in conflict with the law, as Elizabeth Fry societies across Canada do.
In Hamilton, for example, some of the programs we have are counselling for abused women who are in conflict with the law, including a group program in the detention centre. We also have a court worker who meets with women, usually on their first appearance at court, who don't know where to find legal aid or where to find a lawyer. We have staff who visit the detention centre and the prisons in the area, both the provincial and federal prisons, to meet with women planning to be released to the Hamilton area and assist them with their release planning. Usually this involves, certainly for federal women, helping the women prepare for a parole hearing before the National Parole Board.
The Council of Elizabeth Fry Societies supports the purpose of the act as stated in section 1. We have one issue we'd like the committee to review, and that is the issue that there have been inconsistencies in the past with respect to the provision of legal aid certificates for people in custody, inconsistencies across Ontario.
For example, there are federal penitentiaries in Kitchener-Waterloo, the Gravenhurst-Bracebridge area, Warkworth, Kingston and Millhaven. Each of these is in a different area under the current divisions of legal aid areas, and the availability of legal aid for correctional matters such as hearings before the National Parole Board has varied from place to place. In one area, a certificate would be granted for such hearings; in another, it would be granted if a letter of opinion was submitted in support; and in another area it was never granted for a parole-granting hearing, for an initial parole hearing. Similar inconsistencies exist with respect to the granting of certificates for other correctional law matters. You can imagine that it's hard for people in prison to understand that if they were in a different prison a few miles away they could get legal aid to retain counsel for a parole hearing, but not in their current situation.
It's a very important issue. Correctional law matters are very important issues, as you can imagine, for people who are in custody. For some people, Correctional Services Canada and the National Parole Board have effective control over the rest of their lives. For example, a person serving a life sentence for offences other than murder can obtain release from the National Parole Board after serving a minimum of four years of a sentence and spend the rest of her life out of custody, but the same person if denied release by the National Parole Board could serve the remainder of her life in custody, perhaps. Granted, she would have regular hearings, but the authority for release would rest with the National Parole Board. Their custody could last many, many more years.
Liberty is clearly an important issue, and it's now covered by the charter as well as the common law. The risk of incarceration has been used in the past as a test to help determine whether a legal aid certificate should issue, particularly for a person charged with a minor criminal offence. So while the current scheme reflects some awareness of the significance of the liberty issue, there has been confusion in terms of correctional law.
If Bill 68 passes, clearly it will be up to the corporation to decide what, if any, correctional law matters will be covered. Our concern is that that decision be made consistently and with the advice of lawyers who are familiar with correctional and criminal matters.
It's noteworthy also that history suggests that counsel is required in order to hold the decision-makers accountable in such situations. One could argue that decision-makers would act fairly without the necessity of people in prison retaining counsel, but that hasn't been the case in the past. There have been some notable problems.
Particularly, for example, David Cole, who is now His Honour, and Allen Manson, in their book Release From Imprisonment, talk about the development of correctional law and about the situation that existed before the National Parole Board was held accountable for its actions through judicial review. They quote from a case called Mitchell, where Mitchell had his parole, was arrested shortly before the expiry of his sentence. He'd been on parole and then his parole was revoked and he had to serve another two years in custody. He wasn't given any credit for the time on parole.
Then-Chief Justice Laskin said that the facts "tend to shock from their mere narration." This is a passage that's become famous for its description of the parole board before the era of judicial review. He says: "The plain fact is that the board claims a tyrannical authority that I believe is without precedent among administrative agencies empowered to deal with a person's liberty. It claims an unfettered power to deal with an inmate as if he were a mere puppet on a string. What standards the statute indicates are, on the board's contentions, for it to apply according to its appreciation and without accountability to the courts."
Our concern is that when people don't have access to legal aid in order to retain counsel for some of these matters, then again there is no accountability. Our position is that prisoners need counsel just to ensure that their rights are observed.
Similarly, Madam Justice Louise Arbour, in her report on the inquiry at the Prison for Women, talked about problems she saw in the correctional service in observing the rule of law. She stated: "Reliance on the rule of law for the governance of citizens' interactions with each other and with the state has a particular connotation in the general criminal law context. Not only does it reflect ideals of liberty, equality and fairness, but it expresses the fear of arbitrariness in the imposition of punishment."
Later on, she says: "The breakdown of the rule of law in corrections has been denounced in the past, often in the most forceful terms. In 1977, [the MacGuigan report] stated that 'There is a great deal of irony in the fact that imprisonment...the ultimate product of our system of criminal justice itself epitomizes injustice.'"
Madam Justice Arbour stated, "The rule of law is absent, although rules are everywhere."
I would further submit to the committee the requirement that people making these decisions with respect to legal aid for correctional matters have some expertise in criminal law and an understanding of the criminal justice system. Madam Justice Arbour addressed that to some extent also in her report.
We're suggesting one simple amendment, and that is that the definition of "criminal law" in section 2 of the proposed act be amended by adding simply the words "correctional law." That is to say, "'criminal law' includes legal matters respecting provincial offences, correctional law and young offenders."
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This amendment would ensure that the criminal law advisory committee which would be established under section 7 made recommendations to the corporation with respect to coverage for correctional matters. Criminal lawyers are those who best understand correctional law issues. Also, the amendment would ensure that the correctional law matters were dealt with at the board level by the board rather than possibly being decided by area directors and area committees, which could lead to the same inconsistencies that exist in the current system. We believe the correctional law matters deal with very important issues and again urge the committee to consider an amendment that would ensure that these matters are addressed at the board level.
The Chair: Thank you very much for your presentation. That affords us just under three minutes per caucus. We begin with the government members.
Mr Bob Wood: I wonder if you'd put yourself in the position of a sentenced inmate and give me a priority list of what legal services you think would be most important to you; prioritize them, in other words.
Ms Bright: A hearing before the National Parole Board would be number one.
Mr Bob Wood: Would you have others on the list?
Ms Bright: Yes. Hearings before a disciplinary tribunal for disciplinary charges, because those can have a major impact on whether a person gets support for release on parole from the institution. Other matters are advice on a wide range of matters. People in prison often want legal advice on things to do with health care, things to do with sentence calculations, a whole variety of matters.
Mr Bob Wood: You spoke about the inconsistency throughout the province of legal aid being available for parole hearings. If we were to introduce consistency to that or if the corporation were to do that, what sort of guidelines would you recommend?
Ms Bright: In terms of consistency, yes, I agree --
Mr Bob Wood: We understand your point about lack of consistency. I'm saying let's assume the new corporation were to say, "OK, we're going to have consistency across the province." Can you give us a flavour of what kind of guidelines you think should apply to the granting or not granting of legal aid for a parole hearing?
Ms Bright: I think generally there should be a presumption that if a person is serving a life sentence, for example, and their only way out of prison is by virtue of release by the National Parole Board, they should definitely be given legal aid for those hearings.
For other people serving sentences, I would think that legal aid would want to know that the hearing had a reasonable chance of success, that they were moving ahead; that a hearing was going to take place, it wasn't going to be adjourned, that sort of thing. There are some people who are eligible very early in their sentence but there's no likelihood that they are going to be released, there's no realistic chance that they are going to be released early. So I think it's reasonable to ask for an opinion that there will be a hearing that will go ahead and that there's some chance of release.
Mr Bob Wood: That opinion being from whom, counsel? You would pay money to have a lawyer take a look at it and issue an opinion letter. Is that what you have in mind?
Ms Bright: Sometimes now in some prisons there's duty counsel who goes in and handles a lot of minor matters in terms of advice and various things and who can also make recommendations with respect to whether a certificate should issue for parole hearings.
Mr Bob Wood: Are there other criteria that you would recommend to the corporation if they chose to standardize the criteria across the province?
Ms Bright: The main criteria that I would emphasize would be to look at the significance of the liberty interest at stake and whether there was a reasonable chance of success or some chance of success at the hearing.
The Chair: We'll move to the official opposition.
Ms Castrilli: Thank you, Ms Bright. You've presented a very well researched position and you make a cogent argument, supported by eminent authorities. I'm persuaded by what you say.
My questions really deal with the clinic that you have. I wasn't aware that Elizabeth Fry had a clinic. I assumed that you worked with the private bar.
Ms Bright: We don't.
Ms Castrilli: But you have a correctional law project? Is that part of Elizabeth Fry?
Ms Bright: No, that's not Elizabeth Fry. That's a clinic funded by the Ontario legal aid plan.
Ms Castrilli: Thank you very much. I appreciate that.
The Chair: We move to the third party.
Mr Kormos: Again, you know there are no guarantees of overall funding in this legislation.
Ms Bright: I understand that.
Mr Kormos: The proposal is that the funding be by virtue of general revenues, monies allocated by any government of the day to legal aid.
Ms Bright: I understand that.
Mr Kormos: And that governments are going to insist that there aren't adequate funds to cover all of the services that are contemplated and that yours may well be at the bottom of the list.
Ms Bright: Some people might see it as being at the bottom of the list. I certainly would argue that it should be --
Mr Kormos: I know that, but you know what the general public would have to say, right?
Ms Bright: Yes.
Mr Kormos: Let's be candid here.
I don't know what your income bracket is, but you've received a tax cut of 30% of your provincial income taxes. Would you be prepared to have that rolled back if it meant adequate funding for legal aid programs across the province?
Ms Bright: Absolutely.
Mr Kormos: Do you think investment in things like adequate levels of legal aid is a good investment with a calculable return?
Ms Bright: Absolutely.
Mr Kormos: Do you want to expand on that a little bit? We've got a little bit of time.
Ms Bright: I think it's an essential investment. There's a lot at stake in terms of correctional law and certainly there's a lot of benefit to the public if people are released safely from prison. It's much less costly to keep people in the community. There's been a lot of research that suggests that in Canada we put more people in custody than we need to, in terms of the people who are actually a danger to the public. There are significant savings to be realized by letting people out, by having lawyers help people obtain fair hearings before the National Parole Board with a reasonable chance of release. There are a lot of benefits to the public.
The Chair: Thank you very much for coming forward today with your presentation. We very much appreciate that.
Ms Castrilli: Chair, as the next person comes up, I wonder if I might put a question to our researcher.
A previous presenter from the County and District Law Presidents' Association indicated that the Attorney General had said there were certificates that were issued to paralegals. I would be interested in having information as to whether that's correct and how many certificates we have in fact issued to non-lawyers.
Mr Kormos: The Attorney General may not be telling the truth.
The Chair: Mr Kormos, sometimes we tread a thin line. It's my job to watch that line.
ONTARIO LEGAL AID PLAN AREA DIRECTORS' ASSOCIATION
The Chair: We would call upon our next presenters, the Ontario Legal Aid Plan Area Directors' Association. If you could identify yourselves for Hansard, we would appreciate that.
Ms Ramona Wildman: My name is Ramona Wildman. I'm president of the area directors' association. Seated on my right is Leslie Ault, who is vice-president, and on my left is Robert Buchanan, who is the treasurer. I am a part-time area director with the plan. I'm from Barrie, and my area is Simcoe county. Leslie is from Cornwall, and Rob is the area director in Toronto.
We have prepared some speakers' notes for the committee. We apologize, as they've been put together fairly quickly, so if you see any huge gaps in them, it's due to our limits of word processing skills and not a lack of interest.
There are a number of items we'd like to talk to you about. The first is the preservation of the local office structure. As I'm sure you're aware, there are 54 areas in the province of Ontario, and it's our understanding that when the McCamus review committee went out across the province, there was overwhelming support for the continuation of the local office structure. We recognize, as the area directors, that we can well be perceived to have a vested interest in continuing this structure. We think it's best for the province, but we would suggest to you that if there's any question about that, perhaps it would be appropriate to go back to your constituencies and find out what the people in your areas feel about that. Our understanding is that the response to the question, "Should we go to a centralized or a regionalized structure?" was so overwhelmingly negative that the question shouldn't be an issue.
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Unfortunately, in the legislation at section 15 there is provision for areas to be merged. It may well be appropriate for areas to be merged if there are cost savings or whatever reason, but we think there should probably be a recognition in principle of the importance of preserving a structure that will be responsive to local needs. It's our hope that there will be some consideration given to adopting that principle and incorporating it into the act. If necessary, you can certainly set out criteria which would be used, such as those suggested by the review committee, for merging areas. But if it's important to preserve that local structure and not move to, for example, a structure similar to the Family Responsibility Office --
Mr Kormos: I would hope not.
Ms Wildman: So would we.
If that hope is shared by everyone, it's important that you have that in the legislation. Otherwise, it could well get lost five or 10 years from now and there's a danger of moving to something that will not be as responsive as the current structure. We're hoping you'll give some consideration to that point.
The second point we'd like to talk about is stability of funding. I sense that I may get some questions on that particular point and our association's views about stability of funding. Obviously, we feel that in order for the legal aid plan to continue, for there to be credibility of the plan, for lawyers and other service-providers and also the public to think they can support and believe in this plan, they have to know that the money is going to be there.
The last few years were very difficult: people not knowing if they were in or they were out, how long the budget would continue, whether certificates would be paid for. It was almost impossible for us in the local offices to continue to provide adequate service. So we feel very strongly that there has to be some guarantee of funding for a certain minimum period of time. We're suggesting that it might be appropriate to have a three-year rolling budget so the budget is set for three years, and then annually we'd set a new budget and that would be for the third year down the road, so the people who are dealing with the plan will know where they stand and know where we're going to be in the future. If we're setting it every year for that year, it's too unstable for people to have confidence in dealing with the plan.
We also felt it would be appropriate to include some comment about independence from government. We don't really feel that the area director's association should be fighting this battle, but certainly in the McCamus review there was a very strong statement that the legal aid plan had to be separate from government. You can't have one agency funding, for example, in a criminal case the prosecution and the defence -- children's aid issues. There has to be some separation. We were concerned, in reading the bill, about the suggestion that perhaps it would be the Lieutenant Governor in Council rather than the corporation that would be establishing policies as to what would and wouldn't be covered by the plan. The same concern may well exist about the membership on the board, and we imagine there are others who will raise that issue before you, but we wanted to add our voice that it's certainly a concern.
We have a number of housekeeping matters that we've set out in our formal presentation. One that's most important that we stress for you is the role of the area director, both at the area committee and in operating as area director. One section of the act provides that the area director will not provide any legal services. Most of the area directors are part-time area directors. It's a condition of our contract that we have active law practices, and that's considered a strength of having a local area director. If there was an absolute ban on our providing legal services, that would make it difficult for us to continue to act. It's our understanding that probably that was meant to say "legal aid services," and we have no issue with that. It's not appropriate for an area director to be acting for a legal aid recipient in any way. We'd be comfortable if that amendment were made, but the absolute ban on providing legal services is too broad.
With respect to the area director at the area committee, there's a new structure proposed in this bill which would provide that the area director would continue to act as a secretary for the area committee but could not participate in any of the proceedings. We found that difficult to understand. I don't know how much all of you know about the area committees, but they are volunteers from the community. They can't possibly keep up with all the financial requirements, the policies of legal aid. All our offices are filled with memos coming at us fast and furious, and we have trouble keeping on top of them. Without us serving in an advisory capacity to the area committees, it would be impossible for them to function. We have no difficulty, of course, with saying that we should not participate in any voting, particularly with respect to an appeal of a decision by one of us, but I think you'd find that the area committees do require us to serve in that advisory capacity. So there has to be some provision for that.
There's also no right of appeal from the area committee's decision and that's a concern. The act provides that the area committees will act in accordance with the policies established by the corporation. If there's no right of appeal, there's no really effective mechanism to ensure that they are properly and consistently applying the policies that the corporation is setting out for delivery of legal aid services. Most of us are quite comfortable with our area committees. There are relatively few appeals of area committee decisions by area directors, but there have been times, particularly in the last few years, where we would get a comment about: "We don't care what the policy is. We think it's fair that this person get legal aid." If area committees were given that unfettered discretion to give a certificate to whomever they felt would be appropriate, it would lead to inconsistent service across the province and might well have some serious cost ramifications that we might not be able to control.
I'm conscious of the time. The other matters that we have set out deal with quality assurance and housekeeping issues. I'm not sure that we have to speak to them.
Ms Leslie Ault: I just wanted to mention one thing. It's a line that Ramona had in the presentation, that we're on the front line. We're the actual people who are running the offices that provide the service. When you people talk about regulations and whatnot, when they're discussed, we would really like the opportunity to have some input. I think it's valuable; I think it's important at that stage. If we could put our two cents' worth in then, it would be really very much appreciated.
The Chair: That allows us approximately three minutes per caucus. We'll begin with the official opposition.
Ms Castrilli: Thank you for not taking up the entire time, because I have a couple of questions that I want to put to you. The first deals with something you said, that you'd like to see something in the act that says mergers won't be automatic, that there are going to be some criteria, and the criteria should be cost savings and quality of service. I suggest to you that those two things are a problem in terms of criteria because cost savings, particularly given what we've seen in the last three and a half years, would always win out over quality of service. I just wonder what guidance you can give us. If those are the criteria you're adopting, I don't think it gives you any protection at all with respect to mergers.
Ms Wildman: What we would like to see is an endorsement of the principle that legal aid can best be provided through the local office structure and has to have a structure in place that is responsive to the local needs, and there will be no change to the existing structure unless (a) there will be a cost saving, but more important, (b) it can be demonstrated that there will be no reduction in the quality of service, that there's some sort of mechanism to ensure that that local input, that local interaction is in place, because it's the strength of the plan.
In my area -- we're all lawyers, and unfortunately there's a lot of lawyer-bashing that can go on, but I am so impressed by our local bar. They don't have to work for $60 an hour. They have other work they can do and they're doing it because they believe in legal aid; they believe it's important. I don't think you would get that level of commitment if you didn't have the ongoing interaction, the ongoing availability of a local person. They don't need the hassle.
Ms Castrilli: What I hear you saying is a little different from what we were told before: that under no circumstances would quality of service be affected; that yes, you can look at cost saving but it must never jeopardize the quality of service. Is that fair?
Ms Wildman: Yes, and I'm sorry I didn't make that clear.
Ms Castrilli: The other point I'd like to ask you about is the issue of paralegals. We've had a fair bit of talk today about paralegals and we've had everything from, "They shouldn't be allowed deal with people unless they're supervised by lawyers," to others who have said, "They should simply be removed from the act." You haven't been given an opportunity to discuss that point. I just wondered if you might do that now.
Ms Ault: That was actually going to be my topic from "What is quality assurance?" that we skipped over.
Our concern as area directors mainly is that paralegals have to be under the supervision of lawyers. The act says that. It doesn't set out any standards for what kind of supervision, and what I put in here was that it could be so lax that it's tantamount to no supervision at all. As area directors we're sure not saying that they can't be included or shouldn't be included; it's just that they should be monitored really well to make sure everything goes well.
Ms Castrilli: It's been pointed out to us that there may be an inconsistency, that you could read this act as to allow certificates to be given to service-providers, which include paralegals, which is a little different from what you're telling us.
The Chair: We now move to the third party.
Mr Kormos: On the issue of merging of offices, I come from down in Niagara, and right off the bat I know that some genius -- I use that word sarcastically -- in this government's bureaucracy is going to have the brilliant idea of merging Niagara north and Niagara south -- Lincoln county and Welland county. But they don't understand that we don't have public transit between St Catharines-Welland-Niagara Falls, and if you're applying for legal aid, you're poor, the implication is that you're poor, never mind what it would mean up in the north where you've already got, I'm sure, unwieldy districts.
You talk about section 22 -- interesting. Having read that, I thought that maybe it was a misquote, that maybe they meant, "shall not render legal aid services" -- I'm speaking of subsection (6) -- because "legal aid services" is defined in the definitions section. That would appear to contradict the requirement in subsection (3), except that even the requirement in subsection (3) is weird. All this proves is that the Attorney General doesn't read this stuff before he announces it, because it says, "must be a member of the law society," but when you see what a member of the law society is, by definition that includes a student member or an honorary member. Why don't they just say, "shall be a lawyer entitled to practise law in the province of Ontario"? That would exclude student members and honorary members. Again, either it's very sloppy or ill-thought-out, ill-conceived.
Let me put this to you: Why should subsection (3) be passed, in your view? I've got to tell you I've had mixed feelings about why the area director must necessarily be a lawyer. Historically, that's been the case; they've been patronage positions. I'm not talking about the recent past, but in years gone by they have been. Do you think it's imperative that they be lawyers?
Ms Wildman: I would find it very difficult to do this job without my legal training. I'm not going to say that lawyers are the only people in the world who would be able to understand the Legal Aid Act, understand the court, but it would be so difficult to find the background to be able to do this position that I think the danger of leaving it wide open is a real concern. If we leave it that you have to at a minimum have a law degree to be appointed as an area director, that's a good thing.
Mr Kormos: The reason I'm asking that is because I know, let's say, experienced staff people in legal aid offices who in my view, and I could be dead wrong, know far more or as much as their -- especially when you're dealing with a part-time director, OK? I'm not diminishing that role. They run the damn thing at the end of the day and the director relies upon them -- "Do I sign here?" -- especially when you've got the corporation, which presumably will have legal staff. I appreciate what you're saying and I'm just saying this in defence of some staff members in legal aid plans whom I know who I think would be fine directors but would be barred by virtue of subsection (3).
Mr Robert Buchanan: We certainly agree with the excellence on staff, but we do find there are still, even with the most capable staff, legal issues which have to be passed on. They certainly do a tremendous job of vetting and dealing with the major problems, but we still find there are decisions where a legal opinion is required.
Ms Wildman: A lot of what we do is dealing with the bar, dealing with the courts. We get calls from judges, and I think being a member of the bar really helps for us to have credibility in dealing with them.
The Chair: We now move to the government members.
Mr Martiniuk: Thank you very much for your presentation. I'm sorry I wasn't here for it throughout but I will read your brief in full. I just want you to be aware that our government is giving stability in funding in that a memorandum of agreement -- this was a procedure I guess brought in by Mr Kormos's government, which felt that stability should be there for funding and they signed a five-year contract.
Mr Kormos: Well, Marion Boyd never lied when she was Attorney General, Gerry.
Mr Martiniuk: Following the lead of Mr Kormos and his government, we are presenting a memorandum of agreement which will be signed, guaranteeing funding for a three-year period. I thank you for your leadership there, Mr Kormos. It's most valuable.
Mr Kormos: Well, he lied about the family support plan.
Mr Martiniuk: As far as paralegals are concerned, we've heard a number of opinions that there is ambiguity in the act. I can assure you that it was not the intent of the drafters to permit paralegals to obtain certificates under the legal aid plan. We are considering the possible ambiguities in there -- I thank you for your presentation -- and hopefully we'll meet any concerns you have with that.
I'd like to just ask you a question, however, regarding the priorities. Can you tell me how the present plan is working? Are you satisfied that there is sufficient authority at the local level to set the priorities of the geographical area?
Ms Ault: Could I just follow up on that point? Listening to people speaking ahead of us, one of the concerns was that there wasn't enough consistency across the province, that an applicant would go to one office and be denied, go to the next office and be granted the application. We think that's wrong. We want consistency. There should be consistency of policy. Everyone should be entitled to the same sorts of things.
When we talk about the local nature, we talk about dealing with other issues as well, like how we deal with the bar, how we deal with many other issues. It's not just yes or no to certificates. We're not against the consistency across the province as far as the policy is concerned.
Mr Martiniuk: OK. Would you suggest that possibly the new corporation should be consulting and setting down general guidelines within which the local offices should work?
Ms Ault: We're doing that. Since this whole thing came under review a few years ago and the whole thing was in the papers and whatnot, head office has gone out of its way to try to make sure things are more consistent. We have had far more meetings with area directors, laying down the law as to what's what. But as Ramona mentioned, that's changing. It changes very quickly, so it's difficult to keep on top of all that.
The Chair: Thank you very much for coming forward with your presentation today.
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CANADIAN COUNCIL FOR REFUGEES COALITION FOR JUST IMMIGRATION AND REFUGEE POLICY
The Chair: We call upon our next presenters, the Canadian Council for Refugees. If you could identify yourselves for Hansard, we would appreciate it. Thank you for coming. You may begin.
Mr Francisco Ricco-Martinez: My name is Francisco Ricco-Martinez. I am the president of the Canadian Council for Refugees. That is a national umbrella organization. We have 140 members, more or less, in all the provinces of Canada and we represent them publicly in terms of advocacy and policy issues. With me is Avvy Go, who's representing the Coalition for Just Immigration and Refugee Policy in Ontario.
We are going to address the issue of immigrants and refugees in the new act. Basically, one of the first comments that I have is, did you see the list of participants in these public hearings? There's a lack of participation of the newcomers and new refugee communities in Ontario, even though we have a lot of representation and a lot of participation of refugee and immigrant communities in Toronto. Maybe 52% of the people living in this city weren't born here in Canada or in Ontario. So we don't have that participation, and we believe that is because historically the process of public hearings is not friendly to new immigrants and refugees. That is not just because of the process itself; it is because of some natural conditions of the immigrants and refugees. Language is one of those, lack of understanding or familiarity with the system is one of those, and people don't have access.
The publicity about these hearings has been very bad in terms of ethnospecific communities. People don't know that they are discussing their future. I just want to mention that the underrepresentation of ethnospecific communities or organizations working more related with immigrant and refugee issues is clearly a sign of lack of understanding of what the issue is all about for the refugee community and immigrant communities that are going to be affected with the new law.
We are here to talk about our great concern in terms of the fact that legal aid services for immigration and refugee matters are not included in the act, because they are not defined as a basic area of law that is going to be served by legal aid. Subsection 65(6) sets only two years' guarantee of funding for immigration and refugee law, starting this April, so for the year 2001, refugee and immigration law is not going to be one of the basic areas of law that will be served by the act.
The other limitation is that even though the act provides the possibility of the corporation to provide services in other areas of law that are not mentioned in the law, clause 13(3)(e) gives the provincial government the power to enact regulations to forbid the board of the corporation from providing services in any area that is not listed in the law. That's our biggest concern. The very visible and colourful minorities of Ontario are invisible in the new legal aid act. It's something that we have to tell you.
The McCamus report that everybody mentioned is asking and recommending that legal services be kept by immigrants and refugees -- and not just kept. They are asking for it to extend the areas of law that they are covering. They are talking about not just immigration and refugee law in terms of the IRB, or the Immigration and Refugee Board; they are talking about other immigration procedures, including detainees and also post-determination review claims.
Even though the government took a lot of recommendations from that report, we don't know why they didn't pay attention to this specific one that is so crucial for immigrants and refugees. The impact of no legal aid for immigrants and refugees in Ontario will be tremendous. Some 50% of the immigrants and something like 45% of the refugee claimants come to Ontario. We are talking about thousands and thousands of people who depend on legal aid in order to somehow have a fair process before the Immigration and Refugee Board and before the Department of Citizenship and Immigration.
Legal aid permits or allows the immigrants to have an interpreter, for instance. If we cut legal aid, the people are not going to have access to interpretation or translation of documents. They are not going to have access to any kind of legal advice, especially because now, also under the legal clinic system, you are leaving out, or it's not expressly there, the possibility of legal clinics to expand their work with immigrants and refugees if legal aid is cut. Also, the legal system already is overloaded with immigrants and refugees that it is serving right now, so to just send the immigrants and refugees to legal clinics is not the solution to the problem, because it's already overloaded. That was said by the Association of Community Legal Clinics of Ontario.
We have implications already. The federal government is already cutting a lot in terms of services for new immigrants, settlement services. The Ontario government has cut a lot as well for settlement services for new immigrants and new refugees. Plus the federal government is imposing fees. The head tax fee is $975, the processing fee is $500, so each adult has to pay $1,475 to become a landed immigrant in Canada. And now we are adding to pay a lawyer and the fees, plus other expenses.
The refugee and immigrant community has also suffered another cut. We're making it very hard for them to survive; the 25% cut from welfare, for instance. The reductions in different systems of health and other social services have been affecting the immigrant and refugee communities, and now we have the problem that legal aid is not going to be here for them after two years.
The implications are basically tremendous. Families are going to be hit, without reunification for a long, long time. There is the possibility of a person losing a case even though he's a genuine refugee before the Immigration and Refugee Board, and that's because our immigration and refugee system is so complex. It's considered one of the more complex ones on earth. So they need necessarily, in my opinion, legal representation in order to succeed or to have a possibility to succeed before the Immigration and Refugee Board.
We have a process in terms of the immigration department that is so complex and so adversarial that we need a lawyer to represent the best interests of the person who is applying for that process. We are talking about deportations; we are talking about detentions. If you leave the person in detention for a long period of time, the implication for spending money by the government will be greater than spending on a legal aid certificate that is going to facilitate the whole situation.
The last thing I want to say in terms of making clear the magnitude of the effects of the problem is that we believe there are different areas of rights that are going to be affected under the Canadian Charter of Rights and Freedoms, and we are ready to proceed to investigate and to research about what are going to be the implications under the charter and to put information forward and document it.
We are also concerned that the international obligations of Canada in terms of refugees and immigrants are going to be violated in terms of discrimination on the basis of the legal status of a person in a country. That's something that we have discussed a lot. We believe that Canada has a wonderful history, starting not too long ago but changing dramatically to the positive, about welcoming immigrants and refugees, and that will be a totally negative impact in terms of the impression of Canada in different ways and in the way of treating immigrants and refugees all the way.
So now it's Avvy Go, talking about other concerns and also about some recommendations.
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Ms Avvy Go: Again, my name is Avvy Go. I'm the clinic director of the Metro Toronto Chinese and Southeast Asian Legal Clinic, which is a member of the Coalition for Just Immigration and Refugee Policy.
Francisco's point is focusing on legal aid for immigrants and refugees. I would like to highlight some of our other concerns, some of which also have an impact on immigrants and refugees and others which have a less direct impact.
To start with, I want to echo some of the things that have been said before, one of the issues being the application fee. I think it's counterintuitive that we impose a fee on people who only apply for legal aid when they cannot afford it to begin with. So there is a serious concern around the application fee, and my understanding is that even in the current system they decided at some point to take back the fee, partly because they have a surplus but also partly because they recognized the impact of having a fee on the number of applications that can come forward.
The other issue that we want to highlight is, in the act itself there are a number of provisions that deal with cost-efficiency as one of the main objectives of the legal aid plan. Of course, we have no quarrel with that; the legal aid system should be cost-efficient. But we don't see that this should be the only or even the primary objective of the legal aid plan. We have the opportunity of looking at the BC model, for instance, where they define the objectives of the BC plan to include a provision of services for people who cannot otherwise afford them. They also include as an objective education, information about the law for the public. The emphasis there is more about the needs in the community out there. We think that should be the primary objective of the legal aid system, not to ensure that we find the cheapest way to run it.
The other issue is around representation on the legal aid corporation. We are very pleased to see that this government actually included a provision that the members of the legal aid corporation should have knowledge about the disadvantaged communities, the special needs of low-income people. I think that's all very commendable; however, I don't think the government has gone far enough. Besides the knowledge aspect, there is also the equally important issue of representation. We need people who are from the disadvantaged communities to sit on the legal aid corporation because they are the ones who know what is the impact when cuts happen, when policies change. We think there should be a requirement that the legal aid corporation not only have knowledge but have actual representation of people who are directly affected by legal aid. Given that Ontario is a very multicultural, ethnically and racially diverse community, one of the representation issues would be the cultural and racial diversity of representation.
The other important issue that we want to highlight is the whole issue of independence, and this is something that has been mentioned before. There are two aspects to it. In some ways I think that in a civilized society or a democratic society we often -- it's not my phrase but somebody has said that we measure how civilized we are by looking at how we treat the most vulnerable among us. That would include people who need legal aid because they are poor, because they are prisoners, because they are charged with criminal offences, because they're immigrants or refugees who have no political rights. This is how we should view the purpose and the importance of keeping legal aid. That should be the starting point.
The other issue around independence is because, at least in a western democratic society, we measure how democratic we are by looking at the separation of power. It is important that we keep that in the context of legal aid because legal aid is part of the legal system and therefore it should not have intervention by any political side of the government. So for that reason I think it's important. For instance, the legal aid corporation should have a process that allows for an independent appointment process. It shouldn't just be up to the government to say, "I take this person or that person," without any input from the community, without any input particularly from the communities affected by it. So we would like to make a recommendation around those issues as well.
We have included a number of recommendations that are contained on the last page of our paper. For instance, we have asked the government to consider changing the objectives or at least to amend them to include, on top of this issue around cost-efficiency, the recognition to meet the needs of low-income individuals in Ontario or something to that effect. There should be an amendment to subsection 13(1) to make immigration and refugee law part of the core legal services and to remove any reference that the government can just come in and change regulation and impose conditions on the corporation, as it does in clause 13(3)(e).
We have also included that perhaps you should consider making it more clear in the definition of "clinic law" by specifically including immigration and refugee law, because that is very much a part of what we do right now.
Finally, there should be amendments to the selection criteria not only around the representation issue but also around the independence issue.
The Vice-Chair: Thank you. We're running fairly close on time. Approximately a minute per side, starting out with Mr Kormos.
Mr Kormos: We don't have enough time once again. Let me put this to you. You know that section 65 of the bill guarantees stable funding for two years for refugee law. However, section 13, as you indicate, doesn't include refugee law as one of the areas of law covered by the scope of this new legal aid plan. The government would say that what they're doing is simply negotiating or setting up a two-year time frame to negotiate with the federal government. I say, horsefeathers. That's clearly a bogus argument, because if it were only about negotiating, they would have put in the two-year stable funding as they have but would have still included refugee law in the areas of law to be provided under the legal aid plan.
I find that a totally bogus sort of argument. I think they're exploiting a very racist sort of tendency out there in the community that's very anti-refugee. It's very much their constituency, and I find it frightening that the government would be playing that sort of xenophobic game.
I appreciate your presence here. We had people in Thunder Bay yesterday from the Catholic diocese who work with refugees. You raise an important point, and I think this government should respond with other than mere rhetoric.
The Vice-Chair: Thank you. The government side.
Mr Martiniuk: The application fee is authorized. We had hoped to give the new corporation as much flexibility as possible. This government does not necessarily advocate that. That's going to be a decision of this independent corporation. So it's empowerment, not something we're mandating that has to be done.
The guaranteed funding: I think it's very important to realize that our government thinks that immigration and refugee law is very important and that's the very reason we've put right in the act a guarantee for immigration and refugee matters, guaranteed funding for two years. We're the first government to do that. For instance, Mr Kormos's government signed a memorandum of agreement but they didn't guarantee immigration and refugee law. It could have been done away with under their government. We felt differently. We feel that --
Mr Kormos: It could have but it wasn't, and you are doing away with it.
Mr Martiniuk: Mr Chairman, I don't interrupt Mr Kormos. He uses these guerrilla tactics --
Mr Kormos: It's a bald-faced lie, Gerry.
Mr Martiniuk: It's most improper. He doesn't believe in democracy.
Mr Kormos: You're a bald-faced liar, Gerry.
Mr Martiniuk: He wants to have his say and then he refuses to listen. You can see how democracy is devalued by this member.
The point I'm making is simply that we thought it so important that for the first time this government, unlike any other government, including Mr Kormos's government, put it right in the legislation that there's two years of guaranteed funding for this matter. I happen to believe it is very important too. I thank you very much for your assistance here today.
Ms Castrilli: Avvy, it's nice to see you again. Thanks for coming. You raised some very important issues and a minute doesn't allow us to do very much with them.
I want to ask you some very specific questions to assist us. I don't believe, as has been said, that there's a real commitment to refugee and immigration law, for reasons that you've mentioned and some others. In the structure of the corporation, in the board, the criterion is that they will appoint people to reflect various geographic portions of the province. Would you support also a demographic representation on that board?
Ms Go: Yes. I think regional representation is important because rural Ontario and northern Ontario have different issues from Toronto.
Ms Castrilli: Let me ask you my second question because the Chair is going to stop me. In other areas in this legislation, there is a provision for an advisory committee dealing with a particular area of the law. Would you support a refugee and immigration advisory committee?
Ms Go: Yes.
The Vice-Chair: Thanks for your presentation. We appreciate that.
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Ms Castrilli: Chair, I have a number of questions as the next presenter comes forward. First off, I'd like to know, the press release that was sent out, and we only advertise by press release -- I would like the former presenters to perhaps follow what I'm saying -- we had press releases sent out, and I want to know specifically if those press releases were sent to papers other than English and French and if they were translated.
The Vice-Chair: We'll ask for that.
Ms Castrilli: All right. I'd like to know that.
I'd also like to know from the researcher: Professor McCamus in his report went to quite some length to deal with the importance of refugee and immigration law, and we've had evidence before this committee about international treaties and decisions that would affect Canada and therefore Ontario. I would like to have some indication to this committee about what precisely are our treaty obligations or obligations under agreements that may have been entered into by Canada. In particular, you will recall that the Roman Catholic Diocese of Thunder Bay mentions the Geneva convention, the 1967 protocol, the Executive Committee Conclusion of 1977 and the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status.
In addition, I'd like to know what specifically are our charter obligations. I know there certainly is case law around this point and I think we should have that evidence before us before we conclude our hearings.
The Vice-Chair: Will counsel see that those requests are met? Thank you.
FEDERATION OF METROPOLITAN TORONTO TENANTS' ASSOCIATIONS
The Vice-Chair: The next presenter is the Federation of Metro Tenants' Associations. Would you please identify yourselves for Hansard.
Ms Barbara Hurd: My name is Barbara Hurd. I'm the chairperson of the Federation of Metro Tenants' Associations. With me is Hank Mulder, our vice-chairperson, and Hank is going to begin.
Mr Hank Mulder: The Federation of Metro Toronto Tenants' Associations is Canada's oldest and most active tenant organization. Our roots stretch back almost a quarter of a century. Our work in advocating for tenants is widely recognized, including by the three parties in this Legislature. To cite a recent example, each of your parties sent a senior representative to participate in a lively panel discussion about the future of tenants' rights at our annual general meeting on November 14.
Our federation depends on a large, active and informed volunteer base to provide our services to our members and other tenants in the greater Toronto area. We also depend on a network of professionals to whom we can refer tenants when they are in crisis, and to whom we can turn when an issue exceeds the capacity of our volunteers and our small number of paid staff. Given the environment we operate in, we find ourselves turning to the legal profession on a regular basis. We are one of the few organized consumer groups in the country to have such a close look at how legal services are actually delivered. And because of the reality of tenants' incomes, we, individually and collectively, do not have the resources to pay for these services. Thus, a flexible and innovative legal aid program is vital to us.
Ms Hurd: I would like to turn to some of the history of how the federation has interacted with the legal aid system before looking at the specifics of the proposed Legal Aid Services Act, 1998. At the time of our founding in 1974, there was little in the way of legal services provided to tenants. Just a few years before, in 1969, the landlord and tenant dispute resolution system had moved from the street to the courtroom. This was when amendments were made to the Landlord and Tenant Act that required a court order and the participation of the sheriff's office in the eviction of a residential tenant. Although this brought some order to the process, the lack of real rights for tenants did not make legal assistance in individual cases -- the only kind of legal aid that was provided at that time -- all that valuable for most tenants.
Most of the assistance we received from lawyers in those early days was provided on a completely voluntary basis by young lawyers and law students who shared our concern for social justice. Their work focused on three areas: giving summary advice to tenants; helping us organize ourselves into legally viable groups and projects; and helping us to present our concerns to the government bodies that could do something about the lack of rights which tenants of that time faced. These early experiences have shaped our views on how legal services should be provided to disadvantaged communities.
Mr Mulder: Once the legislative reforms that provided a measure of security of tenure were put in place in 1975, the provision of individual casework services became more important. There was now a possibility that a tenant could fight an eviction action in court and actually win. The legal aid certificate provided to the private bar lawyer to represent a low-income individual or family became an important part of making those legislative reforms work. At the same time, the federation and other tenant activists were finding new ways to provide advice and assistance to tenants outside the legal aid plan. Again, we relied on the volunteer services of committed young lawyers and law students as well as organizers and advocates who were not lawyers.
Some of these projects were beginning to provide services that looked a lot like legal aid, so when the federal sources of funding that supported these groups ran out, the province stepped in. They added to the legal aid plan the first clinic funding regulation in order to provide a framework for providing financial support to the most developed of these projects. This low-cost, bare-bones funding also became available to new projects that could meet a demonstrated need. Thus the federation was able to co-sponsor a project called Metro Tenants' Legal Services that joined Parkdale Community Legal Services and other struggling groups to meet a variety of tenants' legal needs.
Metro Tenants' Legal Services met these legal needs in a cost-effective way by providing service to groups of tenants, and leaving individual representation to others. They were able to use the expertise they had developed to identify test cases that would advance or clarify the law. They used this expertise to make submissions to government bodies that were involved in the constant revision of landlord-tenant laws according to the shifting political winds.
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Ms Hurd: The resources made available to legal clinics as the system developed allowed, for example, full tenant participation in the Commission of Inquiry into Residential Tenancies, known as the Thom commission. But the competing demands on the modest level of resources and the active participation of tenants in the decision-making process allowed us to make an informed decision not to participate in that inquiry's second phase and to use these resources elsewhere.
This structure also enabled us to recognize the limitations of the expertise available through the clinics, and we turned to the private bar, specifically Mr Ian Scott before he became Ontario's Attorney General, when we were required to participate in the reference about the Residential Tenancies Act at the Ontario Court of Appeal and the Supreme Court of Canada. A flexible legal aid plan allowed us to put a clinic lawyer together with Mr Scott's pro bono contribution and funding for the disbursements. This allowed the voices of low-income tenants as a group to be heard for the first time at the highest court in the land.
The 1980s and 1990s saw a dramatic expansion of the geographic-based community legal clinics, providing tenants all across Ontario with a quantity and quality of legal representation that we could only have dreamed of when we began. Through their commitment to community control of their services, innovative methods of service delivery and a willingness to work with grassroots groups like ours, the high-minded ideals of much of our social legislation was actually being put into practice. As well, the legal aid plan retained the flexibility to provide funding when tenants had to call on the private bar.
Mr Mulder: With the increasing emphasis in the late 1990s on individual self-reliance and the shrinking of government programs, it becomes even more necessary to ensure that the individual rights that replace group entitlements can be enforced. This is especially critical for those who do not have financial resources to cushion them from crises such as the threatened loss of a home, or dangers to the health or safety of one's family that are all too common in rental accommodation. While new legislation pertaining to tenants' rights, car accidents and disability issues may move these disputes out of the court system, they are complex and they protect vital interests. Thus, legal resources must be available when they are needed. We are very encouraged to see that this government is putting forth legislation that seeks to accomplish that goal.
Ms Hurd: As many of this committee's members may be aware, the FMTA has generally found the legislative initiatives of this government to be lacking. Some of our displeasure arises from our ideological differences with the governing party. But much of it has to do with the inability of some ministries and their ministers to organize meaningful public input on their initiatives and to listen to diverse opinions with an open mind. Fortunately for the people of Ontario, the Attorney General and his ministry have broken from this pattern.
Professor McCamus and the other members of the Ontario Legal Aid Review proved to be excellent appointments to the exacting task of researching legal aid issues, hearing the public's view and preparing a well-reasoned set of recommendations. Not only was a well-written report presented, but Mr Harnick and his cabinet colleagues actually decided to pay attention to what the report said. We believe the result is a bill that reflects the best traditions of the Ontario Legislature and, like the law it replaces, will become a model for the legal aid plans of other provinces and even other countries. We would encourage the government to pursue the kind of public consultation and research that went into this bill for future legislative initiatives and to abandon the prevailing models which keep the public out.
While we are pleased with the bill, there are two distinct but related concerns which we would like to bring to the committee's attention. First, we believe the quality of appointments to the board of directors of Legal Aid Ontario will be crucial to the success or failure of the Legal Aid Services Act. It is important that the government put knowledge, skill and experience ahead of partisan considerations in making public appointments.
Furthermore, the criteria for selecting and for recommending people to serve on this board are extremely broad. We appeal to the Attorney General and to those members of the Legislature who may be in a position to review these appointments to put aside partisan considerations in order to select and recommend people who have demonstrated a commitment to equal justice for all, and to independent decision-making. We specifically ask that a real effort be made to fulfill the requirement in the law that this board have knowledge, skill and experience in the social and economic circumstances and the special legal needs of low-income individuals and disadvantaged communities.
In our view, the entire system proposed by Professor McCamus and set out in Bill 68 depends on Legal Aid Ontario being aware of the needs of poor people and having the ability to operate independently of the government. Unfortunately, it appears that the cabinet has already foreseen policy disagreements with the board and has given itself a way to overrule the board's decisions. I refer you to paragraphs 13(3)(e) and 96(2)(b), which allow the cabinet to prohibit the board from providing certain kinds of services. This is a direct attack on the board's independence and should be deleted.
Mr Mulder: In conclusion, we have not hesitated to criticize this government, and its predecessors, when they have taken steps that we believe are contrary to the interests of our members and the tenants of Ontario. Similarly, when the occasion comes along, we do not hesitate to offer praise and support for laws that appear to meet their needs. We believe Bill 68 is deserving of our praise and support, and we promise that we will be doing what we can to ensure that the new legal aid system achieves its potential.
The Vice-Chair: We have approximately two and a half minutes per side. We will start with the government.
Mr Martiniuk: I want to ask a question that's not related -- well, I guess it is. There has been a substantial change in the venue for landlord and tenant disputes, from the courts to a tribunal. How has that impacted on the demand and the time on your organization?
Mr Mulder: At the moment, the tribunal as it is running is very confusing to say the least. We don't like the way the tribunal is running the show. Decisions are made that, if we would have had legal representation for our tenants, the outcome would have been completely different. So we are not in favour of the way it is run.
Ms Hurd: I agree that the reports we are getting back from our staff is that tenants are having quite a difficult time there. I guess there really isn't enough expertise, knowledge, familiarity and access to legal services available to all tenants. Possibly some of the lowest-income tenants might be able to get one of the legal clinics to assist. But if you're of a certain income, you're basically on your own unless you can afford a private sector lawyer.
Ms Castrilli: I'm a little surprised by your presentation, and I'm particularly surprised in light of the response you just gave, that the tribunals aren't really working that well and that one of the things you need is legal assistance.
What, in this legislation, makes you think it's going to get better? I'm not clear on what you have told me. What I see is a system that says: "We're freezing monies to clinics for three years. We're not really guaranteeing anything beyond that. We know that 84% of certificates are now issued in criminal law matters." What makes you think that tenants are going to fare any better under that system?
Ms Hurd: We're very concerned that there not be any erosion of clinic services, and this legislation seems to recognize the value of clinic services. In my mind it's separate from whether it's in a court or a tribunal, whatever body is making a decision. This legislation isn't about the body that makes decisions about tenants; it's about the body that provides funding for tenants to get assistance, whatever decision-making tribunal or court they're in front of.
Ms Castrilli: But isn't that the issue? If we know now that there's virtually no assistance, in terms of legal aid, for tenants who want to fight these cases -- there may be other assistance, but there's certainly virtually none. We know that funds are going to be frozen. I fail to understand how you think it's going to get better. If anything, it's going to perpetuate the status quo. It's not going to make it any better for tenants.
Mr Mulder: We have had, as you heard in our brief, a very close working relationship with the Metro Tenants Legal Services. They were, as I said, a sister organization of the federation. I have been a board member of that organization for the last six years. Two years ago I was the chairperson of that board for one evening and I did such a good job that the whole board resigned because of internal strife. That is meant as a little joke, but it is really true. It was a tremendous problem and it couldn't be solved. That money was not allocated to tenants' needs after that fact.
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Ms Castrilli: Pardon me for interrupting, but that's a different issue. Would you not agree with me that all the boards in the world mean nothing unless there's some money to back it up?
The Vice-Chair: Thank you. Mr Kormos.
Mr Kormos: Go ahead, sir. Answer.
Mr Mulder: I'm just referring to the money they used to help tenants. We are just trying to get that amount back, or part of that amount, in order to start helping the tenants again. At the moment we are discussing old money that was used for the tenants, and we are trying our utmost to get part of it back.
Mr Kormos: You're quite right. This legislation approximates -- and I say that very carefully -- approximates the McCamus recommendations. The problem is that there's nothing in this bill which provides for a minimum standard or a minimum level of provision of services. I've got to tell you that these guys could do through the back door what they wouldn't dare do through the front door. They have sole discretion over the level of funding. You can defund legal aid and all the Bill 68s in the world aren't going to maintain any level of quality services.
I don't think either opposition party disputes the effectiveness of an independent board, an independent corporation etc. You heard from refugee advocates who noted that the bill ignores the McCamus recommendation that there be ongoing provision of refugee advocacy. The bill specifically excludes refugee advocacy.
I certainly wish you well. But I wish you well under a regime that wants to rob from health care, from public education -- quite frankly, I'm convinced, from legal aid -- so they can provide a tax break to its richest citizens. That's what defunding health care and public education and, at the end of the day, legal aid is all about. I wish the tenants' association well, and I wish them well with the next government as well.
CANADIAN BAR ASSOCIATION -- ONTARIO
The Vice-Chair: At this time, we would like to call on the next presenter, the Canadian Bar Association. Would you please identify yourself for Hansard and begin.
Miss Virginia MacLean: My name is Miss M.V. MacLean. I am the chair of the government relations committee for the Canadian Bar Association. I'm grateful for this opportunity to make this presentation to you today. I would alert you that you will probably be seeing me tomorrow in Ottawa. We have decided, in the interest of the time allotted, to split our presentation. Mr Drukarsh, who is the chair of a special committee dealing with the legal aid task force, is here today to address most of the issues that are in the submission before you today.
I was going to briefly tell you what the CBAO is. I think most of you are aware of what the Canadian Bar Association is, but just so you know, it is not the law society, which is the governing body. It is the voluntary association of members, and it represents approximately 14,000 lawyers, judges and law students, many of whom work in legal aid clinics. It represents the interests of the legal profession in Ontario.
Briefly, I would like to address the portion of the submission that is set out on page 2, and that deals with the composition of the board, subsection 5(2) of the legislation. Our concern with that relates to the selection process being totally in the hands, in our submission, of the Ministry of the Attorney General, specifically the Attorney General. Our particular concern about it is that the corporation must be independent from the Attorney General, who is nominally the largest litigant before the Ontario courts. The composition of the board of the corporation and the selection of the chair, as proposed in the bill, requires the Attorney General to select each board member. Our question to you is, how can this be done and how can this board be independent if the Attorney General is controlling it?
The only recommendation we would make, as an association, is that the chair be selected from the members of the board at its first meeting in each year. Leave it up to the board itself to select its own chair, which is done in other boards that have been created by this government.
We also suggest that the five selected members identified in subsection 5(2) be two persons recommended by the law society and three persons who are jointly recommended by the Canadian Bar Association and the County and District Law Presidents' Association, who we understand made a submission to you earlier today. That would be our recommendation as to a change in that portion of the bill.
I have with me Marshall Drukarsh, who will address the rest of our submission.
Mr Marshall Drukarsh: The CBAO does appreciate this appearance, which we frankly see as an opportunity to assist you to create a corporation that will be capable of achieving the goal of promoting access to justice throughout Ontario for low-income individuals. We support that goal wholeheartedly.
It is important to recognize that the corporation will be in the business of the provision of service. The omission of provisions for immigration law, the third largest product of legal aid, over 6% of its current business, will, we submit, inhibit the ability of the corporation to deliver.
It may come as no surprise to understand that I got into the CBAO as the chair of the immigration section and that's what led to this. We do understand that criminal law and immigration law are federal, that funding is complex. But we plead that there not be created a system that is incapable of providing the needed service as a tactic in the funding wars. You don't want to build a two-legged chair; the public is going to fall off.
With respect, immigration law is an important area of service to be provided. There is a demand; there will be a demand in the future. The specific provisions we have made call for the recognition of that fact. In particular, we are asking, with respect to section 1(b), the statement of goals and the method in which services are to be delivered, that the words "immigration law" should be inserted after "criminal law," such that it is recognized that immigration law is a service that, if it's going to be delivered, is best delivered with the judicare model.
In section 2, we propose the insertion of a definition "'immigration law' includes immigration and refugee law." That may be apparent to some, but permit me to point out that immigration law includes a lot more. There is a certain amount of emotion around refugee law and sometimes, with respect, that emotion gets in the way of clear thinking about the issues.
Immigration law includes the provision of service for the low-income resident of Ontario, who, perhaps having sponsored a husband who is denied admission to Canada, wants to fight an appeal. Immigration law includes the service to people who are being detained by immigration, sometimes for extensive periods. Immigration law includes a variety of other services beyond merely refugee law, but refugee law is of course a major component of immigration law.
The CBAO proposes the amendment of subsection 7(1) by the insertion following the words "criminal law" of the words "immigration law." Section 7(1), as you know, provides for the creation of advisory bodies. There should, in our respectful submission, be an advisory body with respect to the provision of services for immigration law. This does not mean that the provincial government can necessarily be told by the federal government that no more will immigration law be funded. This means that if it's going to be a product to be delivered, there should be advice to the governors by people who are in the business of delivering that service.
We propose the amendment of subsection 13(1) by the insertion of the words "immigration law" following the words "criminal law." In other words, we are proposing that the corporation be structured such that among the services that it shall provide, it shall provide services respecting immigration law.
We propose in subsection 65(6) that the words "for two consecutive fiscal years" be replaced by the words "for three consecutive fiscal years." We appreciate that under subsection 65(2) the budget is in three-year cycles. We appreciate that under 65(5) clinics are funded on a three-year cycle. We respectfully submit that immigration law is no less important a product to be dealt with.
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Reluctantly, we came to propose a less preferable alternative to the amendment I have suggested to subsection 13(1) above if it is not possible, and it should be possible, to assert boldly that immigration law is an area in which service will be delivered. If it is not possible to do so boldly in subsection 13(1), then at the very least we propose that subsection 13(2) should be amended to indicate that subject to funding -- 57(1), funding by arrangements with other governments; 67(1), funding by outside sources by other arrangements -- the corporation shall provide services in the area of immigration law, and carry on to say that subject to subsection (3) the corporation may provide legal aid services in other areas of civil law not referred to.
Lest there be any concern that to build an appropriate vehicle for the delivery of services would somehow leave you stranded with the bill for providing all services, we'd submit a reasonable compromise to the change we propose to 13(2). We recognize that if you're doing so, there may have to be changes in section 68 respecting the segregation of funds. We understand that.
Another area that the CBAO proposes be looked at, and that my colleague will not be giving comments to you about in Ottawa tomorrow, has to do with the reporting provisions. We note that it's important that there be faith in the system. We note it's important that the people who provide services be bound to ensure that services are not abused. We would point out, however, that to have a provision that's too vague is to have a provision that's unenforceable.
We propose that subsection 43(2) of the legislation be amended by inserting the words "it reasonably appears that" following the words "any change in his or her circumstances, and, accordingly." What we're suggesting is that to have a kind of an absolute standard wherein one is always on the razor's edge of being second-guessed as to whether there has been a change in one's client's situation, is to create an unnecessary tension and is counterproductive. If it clearly states that where it reasonably appears that someone has become disentitled to legal aid there is a duty to report, then there is an enforceable duty.
With respect to subsection 95(3), which presently states in no uncertain terms that, "Any lawyer or service-provider who fails to discharge an obligation imposed under section 43 is guilty of an offence," we submit that that would be most acceptable if it were livable; in other words, if it were amended to say that a lawyer who wilfully or negligently fails to discharge an obligation imposed under section 43 is guilty of an offence. The combination of the two factors as they appear now, 43(2) and 95(3), create an unenforceable regime.
With those comments, I believe I've come to the conclusion of the two areas that I offered to assist you on today, and ask if there's anything further that I can help you with.
The Chair: We have three minutes per caucus, and we'll begin with the official opposition.
Ms Castrilli: Thank you very much for a very crisp and to-the-point presentation. Could I just seek clarification on a number of issues? One of the first things you mention is the independence of the board, and we agree with you with respect to that. You're not making any comment with respect to the members who would be appointed by the Attorney General. You're only concerned about the ones appointed by the law society in concert with the Attorney General. Is that right?
Miss MacLean: Indirectly. We are also concerned about the appointment of the chair, because the Attorney General was to appoint the chair. What we're saying is, rather than have the Attorney General appoint the chair, let the members of the board appoint their own chair among themselves, as opposed to having an appointed individual.
Ms Castrilli: I understand that concept, but you're not opining on whether the Attorney General ought to have the ability to appoint the other five members; that's not one of the concerns that you --
Miss MacLean: The additional five who aren't recommended by the law society?
Ms Castrilli: Right.
Miss MacLean: No, we're not commenting on those five.
Ms Castrilli: I am curious about refugee and immigration law. It's really an issue of terminology. In his report, Professor McCamus very clearly called it refugee and immigration law. He goes to great length distinguishing the two. Are you telling us that if we just had immigration law in the context of this legislation that would be sufficient to include refugee law? Would we need a definition section to say that, or is that sufficient in your view?
Mr Drukarsh: My suggestion to my committee, which has made it our suggestion, was that identifying immigration law throughout and by including, as with criminal law, the definition, makes it clear that where we refer in the existing situation to criminal law, we're saying that includes legal matters respecting provincial offences and young offenders. For convenience, as a 25-year immigration lawyer, I think of it as immigration law, and we're putting forward the proposition that if a definition of immigration law includes immigration and refugee law, it would do two things: It would make simple terminology, and at the same time it would establish a certain level of permanence.
In our view, the shorthand way that people often access legislation is to look at definitions. To a large extent, what we're fighting for here is recognition of the existence of immigration and refugee law as a product line, as something that is an area of service that low-income Ontarians need, not only refugees but other low-income Ontarians. In our respectful submission, to have that recognition, it's of great convenience to have the term defined, to have it in there for that purpose.
The Chair: We have to move to the third party.
Mr Kormos: Mr Drukarsh, specifically to you: This tension between the law society and the CBAO is quite interesting to watch. I'll leave it at that. We had the law society here this morning, and one of the things I didn't have time to ask, especially one Robert P. Armstrong, Esq, no less, chair of the legal aid committee, was if he does legal aid work. I regret not having been able to ask Mr Armstrong, Esq, but I'll ask you. Do you do legal aid work in your area of immigration and refugee law?
Mr Drukarsh: Absolutely.
Mr Kormos: I'm not suggesting a conflict here. I want to hear from people who do it.
Mr Drukarsh: What I'm suggesting to you, sir, is that to have an education is a privilege. To use your education to assist people is a way to make a living and a privilege. But there comes a time when you can only do so much pro bono, because your staff want to be paid at the end of the day and so does the landlord. If there is a workable scheme for the provision of legal aid, then it's used. That's one of the benefits of being a member of the Canadian Bar Association. We have in our sections organized people who are immigration and refugee lawyers, citizenship and immigration lawyers. We have criminal lawyers organized into groups. That's one of the reasons we're in a position to make a contribution.
Mr Kormos: I know that, and you're making a good contribution. In section 3(b)(i)(e) you talk about "the complexities of funding legal aid services in areas of federal jurisdiction." With due respect, that seems to fall into the phony argument of the government about funding for refugee services. The Narcotic Control Act is federal jurisdiction, the Criminal Code is --
Mr Drukarsh: Exactly.
Mr Kormos: YOA, which mandates provision of counsel, is federal jurisdiction. All I'm saying is that it seems to fall into the phony argument of the government that they're merely engaged in some sort of dialogue with the feds over funding. Do you understand what I'm saying, that we're sort of off point if we buy into that argument? The province is constitutionally responsible for legal aid; it's either going to provide it or it isn't.
Mr Drukarsh: Absolutely, and I thank you for picking up on the point I was making on behalf of our organization. Criminal law is federal statute. There's a service that's needed for the citizens of this province. They don't get second-rate judges just because they're poor. They don't get shabbier courtrooms to stand in than rich people. Immigration services are needed by the people of this province -- the woman who's fighting to bring her husband over, the kid who's been in Canada since he was a child but is now being ordered deported and needs a lawyer to help him fight, the person who gets off an airplane and is being detained, and there is provision in the regulations for the setting of requirements for when it's appropriate to give services to out-of-province persons. Those people are entitled to the best that can be provided. You cannot have second-rate justice for some. I couldn't agree more, sir.
That's one of the reasons why in our area in particular, where there are a variety of consultants and paralegals, an issue that will be addressed by my colleagues at another presentation, it's so important that we be certain that the lawyers can be funded; where regulated, trained, responsible people can be adequately funded to ensure that people get the services they need in immigration and refugee law.
The Chair: We now move to the government members.
Mr Martiniuk: I am advised that there was substantial consultation both before the drafting of this bill and afterwards. Can you tell me what consultation you had with the representatives of the Ministry of the Attorney General in regard to this bill?
Mr Drukarsh: There has been, to my knowledge, ongoing consultation, meetings from time to time. The head of the Attorney General's task force, who's with us today, has chaired meetings both with the CBAO and with the particular CBAO task force on this specific topic of legal aid. I became a member of the group a year and a half or so ago, and the chair moments before we had the opportunity to write and prepare this brief. There has been an opportunity for an exchange of ideas and I am grateful for that opportunity, which at the same time does not diminish my wistfulness that some of the things I have been communicating are not necessarily reflected in the legislation.
Ms Castrilli: Good answer.
Mr Martiniuk: I must say that somehow your brief feels that we're slighting immigration law in some respect, when we're the first government in Ontario to recognize the importance of immigration and refugee law by giving guaranteed funding for a two-year period. But that isn't the question I would like to ask you.
Mr Kormos: Oh, go ahead.
Mr Martiniuk: What I would like to ask you --
Interjection.
Mr Martiniuk: Please don't interpret this as mean; I don't mean it so. For some reason you feel that the CBAO and the County and District Law Presidents' Association might be better qualified than the law society, knowing full well that the law society, of necessity, represents all the lawyers in Ontario, where your two organizations, even in combination, do not represent all the lawyers in Ontario. Considering the ongoing negotiations of two years for amalgamation of your two organization, are you certain that you could come up with a joint recommendation?
Miss MacLean: Mr Martiniuk, are you talking about CDLPA, the County and District Law Presidents' Association and the Canadian Bar Association?
Mr Martiniuk: Yes.
Miss MacLean: We have been meeting. Not only are we discussing, but they sit in on meetings of our table officers. So, yes, I'm confident that we can come up jointly. I would say that it's not an issue with respect to the law society because they would still have the right to make recommendations with respect to their two; we're just looking for three.
The Chair: Thank you, Mr Martiniuk.
This committee rises until 10:30 of the clock tomorrow morning in Ottawa.
The committee adjourned at 1635.