It’s been an eventful year at Legal Aid Ontario with changes from increases in eligibility requirements for the first time in nearly 20 years to a proposal to amalgamate legal clinics in the Toronto area.
This year, LAO doubled the number of hours family lawyers can spend on child protection services. It has also been expanding duty counsel services and funding student legal clinics — a model that branches out of the private bar service provision.
Some of the legal aid headlines in 2014, such as the clinic transformation project, have been controversial. Legal aid lawyers’ campaign to unionize continued into this year despite the rejection of their bid by LAO in 2013.
We sat down with LAO board chairman John McCamus to talk about what all the changes mean and what’s in store for legal aid in the new year.
Law Times: According to the clinic transformation project’s report that came out this year, the proposal to reduce 16 of the GTA’s legal clinics to five or six mega clinics can’t be implemented without additional resources. Is LAO prepared to provide more funding to clinics?
John McCamus: The new funding from the province of Ontario on financial eligibility — which as you know amounts to close to $100 million over three years and will involve changing the financial eligibility rules for all the services we provide, including the clinics — will be utilized by us, in part at least, to increase the capacity of the clinic system to deal with increased demand. So we do expect that some resources will flow into the clinic system — not specifically because of the transformation [project] but because we have an opportunity to expand the clinic system and we will work with the clinics to accomplish that objective.
LT: What are your thoughts on the clinic transformation proposal and the criticism that has come from a couple of the clinics but also from law professors and others?
McCamus: We are not participating in the debate. We are very interested observers and we want to do what we can to support efforts to modernize the system but these are decisions that have to be made by the clinics themselves individually or in groups. We do think there is some misinformation being spread by those who are critical of the proposals and in particular some suggest that many clinics will be closed. My understanding is that that’s not the case. The GTA group wants to expand the number of locations services would be provided. But again, this is a debate for the clinic community itself.
LT: The other big thing that happened this year is obviously the new funding from the provincial government and the resulting increase in eligibility. What does this new funding mean and are you satisfied with it?
McCamus: It’s a wonderful breakthrough — it’s really an historic change in the funding of legal aid. The static nature of financial eligibility for the last 18 years has had a very negative impact on the legal aid system and accordingly it’s wonderful that the provincial government has decided to tackle this issue head-on, especially in a difficult fiscal climate, and enable us to address some serious problems in access to justice and the administration of the justice system. So it’s a very welcome development; we do hope that these increases continue in the years ahead but we’re very pleased that the government has committed to three six-per-cent increases in eligibility over the next couple of years.
LT: Can you speak a bit about the role of the federal government in funding legal aid? Should the province do more to lobby the federal government to provide more funding to legal aid?
McCamus: I think the provincial government does make representations to the federal government to encourage a higher level of support from the federal government. And it is true that federal support for legal aid has declined over the years. So we certainly would welcome greater support from the federal government and we’re delighted that the provincial government has been, for many years now, pursuing that possibility.
LT: Another thing we’ve seen throughout this year are new ways of providing services outside of the private bar. These include funding of student legal clinics, expansion of duty counsel, and expansion of some paralegal work as well. What’s the broader vision in expanding these services outside the private bar?
McCamus: Legal Aid Ontario is really quite focused on our clients — the services that we provide to them, filling gaps in provision, and so on. In terms of the overall vision, we expect that services will continue to be provided in the overwhelming majority of cases by members of the private bar. Our statute provides that the private bar is to be the foundation of service provision in these areas and we have no intention of changing that but we do complement what the private bar is doing by arranging for other types of services to be provided.
LT: You speak of this gap in services. Has that always existed? Because we’ve only seen these changes more recently.
McCamus: There was a very severe cutback in the funding of legal aid in the early 1990s, so there have been problems since then. We have been gradually trying to address them over time in a very difficult fiscal climate for us. So yes, these problems have been around for a while, especially in the family law field and we’re delighted to make some progress.
LT: Some people have said if you’re able to expand duty counsel services or staff lawyer services, why couldn’t you just fund certificates? Instead of expanding those other services, why not do private bar services?
McCamus: There are people who are not eligible for legal aid certificates who are nonetheless in urgent need of service. If they’re eligible for duty counsel service then service can be provided to them through that means.
LT: Are LAO staff lawyers not doing work now that was previously done by the private bar?
McCamus: That’s not my understanding or expectation. Now, if we’re talking about criminal law, it’s true that the Justice on Target program of the Ministry of the Attorney General has had the effect of leading Crown attorneys to make earlier offers as means of disposing of charges such as withdrawal of charges, diversion or guilty pleas. And these proposals are being put to duty counsel. In the old days, when these proposals wouldn’t happen as quickly, they would often go to people on certificates. So that has shifted the work to some extent from private bar to duty counsel.
LT: Would you agree that this diversification of service provision outside of the private bar reflects a change in philosophy for Legal Aid Ontario?
McCamus: I don’t think so. I think Legal Aid Ontario has always believed there should be a mix of services. Legal Aid Ontario opened up some criminal law offices some years ago. They were eventually closed down but they were an experiment in trying to provide services in a different way.
LT: The Criminal Lawyers’ Association has expressed concerns about lack of consultation when these changes are coming down the pipes. What do you say to that?
McCamus: We spend a lot time speaking with members of the Criminal Lawyers’ Association’s executives and others. We have advisory committees in every field, which we meet with regularly. I understand that people would always like to have more consultations and we are doing our best to consult more frequently and we find it extremely helpful to do so. Consultation is a difficult business — it’s possible to suggest that there’s never such a thing as enough consultation but we do a lot of it.
LT: Refugee lawyers in the private bar would say some of the work they used to do is now done in-house by legal aid lawyers. I believe they’ve tried to bring their concerns about this to LAO president Bob Ward and they’ve also tried to speak to the board, but they say they weren’t allowed to speak to the board. Why is that?
McCamus: I think those concerns have been expressed. They’ve been brought to the attention of senior management and the board. It’s true that the board doesn’t meet directly with stakeholders on an ongoing and regular basis. The view of the board is that senior management should engage in those consultations and report back to the board. It would be an expensive process to have the board fly in from across the province and meet regularly with groups when it can be done efficiently and effectively by senior management.
LT: The other thing that’s been in the news is legal aid lawyers and their bid for association or joining a union. Why has LAO not been keen on that idea?
McCamus: I don’t think that is a suitable topic for me to discuss publicly. I’m not sure I agree with your characterization of it. Again, I don’t think it’s useful for me to comment on matters of this kind.
LT: If you had all the money in the world for legal aid, what do you envision it looking like?
McCamus: We will probably continue to have a mixed system that will have a small staff component, where that’s desirable. We’d fill in the gaps in service that we experience. More generally, we feel there are needs for services for vulnerable groups that require strengthening. We are indeed developing strategies to improve services provided to members of the aboriginal community, we have developed a strategy to try and improve services we provide to clients with mental health issues — not just in criminal law but across the broad range of services we provide. We’d want to invest more in that. We are currently trying to work on a strategy for improving services we provide to victims of domestic violence.
LT: Can we expect more changes at LAO in 2015?
McCamus: The principal area of change for next year involves the implementation of the new financial eligibility financing. This will be a major preoccupation for us. It’s obviously a challenging task. It’s something we want to do as quickly as possible and fairly and transparently in collaboration with our service providers in the private bar. Obviously we want to get the services that are now possible to deliver out to the people who need them and we will work very hard to ensure that the government is satisfied that the money is wisely invested — that it actually is increasing access to justice, that it actually is improving the administration of justice in the province. It is through effective implementation of this initiative that I think we will demonstrate that this is a valuable thing to do and accordingly it should continue on in the future.
Note: Some parts of this interview have been condensed for clarity.