Justice Committee on Oct. 31st, 2006

[Réal Ménard, Bloc, Hochelaga, QC]

Obviously, there is the satisfaction they get from working toward community goals, which is priceless. But I understand the reality you are describing.

It seems to me you are saying that there are some difficulties relating to criminal cases. Are you saying that a resident of Ontario can obtain representation in a criminal case only if there is a possibility of incarceration? You mentioned $90,000 per person related to criminal cases. Can you clarify that for me? What are the eligibility criteria for criminal cases and what are the specific problems with this type of representation?

You are right. I have known lawyers who make $200 or $250 an hour. I do not want to name them, but I can see them from here.

[George Biggar]

It's certainly true that we receive a lot of benefit from lawyers who are doing legal aid work, partly out of the desire to serve the community, and I certainly want to acknowledge that.

Over the past five years the range of matters for which a criminal certificate will be issued has been restricted very significantly in order to try to accommodate increasing demand and increasing costs. Where it used to be that a certificate would be issued if the client were facing either the likelihood of incarceration or the loss of means of employment, in order to operate within our funding limits and within the budget we have had to restrict coverage to those cases in which there is now seen to be a probability of incarceration.

One of the kinds of matters that is putting a lot of pressure on legal aid is a new tendency of the justice authorities to prosecute large groups and large gangs of offenders. Trials involving multiple accused are significantly more expensive—these are essentially the gang-related prosecutions—vastly more expensive than the normal individual cases.

The average case cost for an individual charged with a criminal offence on a certificate is between $1,500 and $1,600. Some of the most expensive of the gang prosecutions are now costing Legal Aid Ontario as much as $90,000 to defend, and this is creating enormous pressure.

A lot of it is in response to the federal amendments to the Criminal Code that provide for specific sections and penalties for gang membership.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Ménard.

Mr. Petit.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Good afternoon, Mr. Biggar and Mr. Guitard.

First, I would like to thank you for clarifying Ontario's Legal Aid Services Act for us. On behalf of lawyers in the province of Quebec—I work in private practice—I can tell you right now that legal aid pays more in Ontario than in Quebec.

Second, you have been talking mostly about Ontario, which is why you are here. As I understand it, you want to renew a 50/50 agreement between two partners, like the one that was in place in Quebec for a while. The same rules apply in both Ontario and Quebec. As you know, we are in pretty much the same boat in that respect.

You mentioned three major categories for low-income individuals. I am talking about those who are eligible for certificates, which we call a mandate. As you know, legal aid is a provincial responsibility under subsection 92(14) of the British North America Act. It falls exclusively under provincial jurisdiction, and there are federal-provincial agreements in place.

Let us suppose that, among your clients, there is a low-income francophone from Ontario—which happens, just as there are low-income anglophones in Quebec—who has the sort of problem that could affect any of us—say, a ticket in English. He is poor and needs to defend his rights. Is he eligible?

In Quebec, we accept immigration, employment insurance and social housing cases. We accept cases related to all federal legislation. Are there federal acts or criteria that say poor people cannot have access to this service to have their rights as francophones respected if they have received a ticket issued in English from the City of Ottawa?

[René Guitard]

Legal clinics are really the poor relative because there is a big difference between legal aid offices and us. In Ottawa, there is a clinic that handles contesting tickets. It might even be the University of Ottawa clinic.

Now, the people who provide services to clients at that clinic are law students working under supervision. They do not have much experience with the consequences of such cases. On the other hand, I understand they have a very good reputation at the provincial court, which is great. So there is access to that.

As a legal clinic, we do not do criminal law. We do not even deal with minor offences, because that is not in our mandate. Our mandate is to deal with cases relating to poverty, income maintenance, housing and so on.

I am talking about Ottawa, but there might be people in other parts of the province who do not have representation.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Is that because they do not meet the criteria, or is that because legal aid in Ontario does not cover language rights?

[René Guitard]

No, not language rights. But in criminal law, when there is no risk of imprisonment, a legal aid certificate may not be issued.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Like in Quebec. But I was talking about language rights.

[René Guitard]

Language rights—

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Can a low-income person who wants to defend his language rights get representation in Ontario through legal aid?

[René Guitard]

For language rights exclusively?

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Yes.

[René Guitard]

I think he would have a hard time getting it.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Okay.

I have no further questions.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Petit.

As a point of clarification for me, do you have legal aid clinics and legal aid offices?

[George Biggar]

Yes. In some places they're together in the same building or side by side, but historically they are two separate systems that we are slowly working to bring closer together in order to serve the clients better.

[The Chair, Conservative, Art Hanger]

This is an examination under the estimates. That's why we're here, and it was agreed upon by the committee to go this route and pick the legal aid program as one example. If this committee were to look at this issue, if they were to have an in-depth examination of legal aid delivery and the whole bit, what would we find? Would we find a lot of inefficiencies in the system? Would we find possible overbilling? What would we find?

[George Biggar]

Speaking on the legal aid side, on the certificate and duty counsel program, I don't think you'd find much inefficiency. You certainly wouldn't find much overbilling.

We are very careful to constantly be monitoring the amount of money that we pay to lawyers in general and to specific lawyers. We have a full-time investigator on staff, and we have a number of mechanisms that automatically trigger an investigation of a lawyer's accounts. For example, while we have recently implemented a very sophisticated computer method of paying the accounts and lawyers can submit those accounts electronically through the Internet, that system has a number of complicated checks and balances to make sure that only what is properly payable is in fact paid.

In addition, the system randomly selects about 5% of the accounts for a further detailed audit. If there are any questions arising from that detailed audit, then our full-time investigator steps in to make sure there aren't any improprieties. Every year, we do find some people who have perhaps been a little energetic or more energetic, and we take steps to recover those funds. As the lawyers who work on legal aid generally tend to do quite a bit of it, we are very successful in our cost-recovery programs. We are constantly monitoring the cost per case, the cost per certificate, and the funds being paid to the lawyers, and we are confident that area of the business is well under control.

On the administrative side, Legal Aid Ontario has a favourable ratio of administrative costs of just about 10%, which compares favourably with other similar programs in the country and other legal aid programs in the country.

We have a very diligent provincial oversight, and internally we are constantly reviewing our expenses to see if we can reduce our budgets, which is something we have had to do. That is, in fact, the only way in which we have been able to maintain service levels, notwithstanding that over the past few years we have had no increase in our base funding since 1999.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Biggar.

Ms. Barnes is next.

[Sue Barnes, Liberal, London West, ON]

Thank you very much.

I'm sure that if we had the time to do an in-depth study on legal aid, it wouldn't be that area. It would be what happens to the unrepresented and what access to justice is being denied, especially in the civil side and especially in family law.

In the estimates there is something you didn't mention, that being public contributions in support of public security and anti-terrorism legal aid. Do you have any of that in Ontario?

[George Biggar]

Well, we do now. I think there was one case in the last several years, and then recently there has been a very well-publicized significant arrest of a number of young men. That case is proceeding in the Brampton courts.

[Sue Barnes, Liberal, London West, ON]

Was that a special pocket of money set aside separately?

[George Biggar]

Yes. We have been advised that there is a special pocket of federal money set aside for these cases.

[Sue Barnes, Liberal, London West, ON]

Okay.

Now, you mentioned a figure of $7.5 million that you predict with some of these bills. Can you tell me which bills specifically you were looking at? How did you come up with the $7.5 million for Ontario in legal aid? You must have made some assumptions.

[George Biggar]

Yes, we did. We did quite a bit of work on that. We have a business analysis department. We looked at the number of particular kinds of cases--firearms cases, for example. With the use of our computer records, we can break out smaller particular sectors of the certificate caseload, and we worked very closely with our provincial counterparts to come up with some agreed upon estimate of the percentage of cases that would be affected and what the probable effects were.