Justice Committee on Feb. 2nd, 2017

[David Field]

I think one of the things it does is cause a churn in the system. It encourages, or really forces, people to go to trial when perhaps if there were not a mandatory minimum, they wouldn't need to do that. It causes delays in the system and compounds some of the other challenges we have in terms of administration of justice.

[Chris Bittle, Liberal, St. Catharines, ON]

Just to rephrase it, it limits the ability to settle, and the vast majority of cases in our criminal justice system settle without a trial.

[David Field]

That's right.

[Chris Bittle, Liberal, St. Catharines, ON]

Do you know the percentage?

[David Field]

It's 93%, or in that neighbourhood.

[Chris Bittle, Liberal, St. Catharines, ON]

Okay.

[The Chair, Liberal, Anthony Housefather]

There is still two more minutes on the Liberal side.

[Chris Bittle, Liberal, St. Catharines, ON]

Oh, I can keep going.

[The Chair, Liberal, Anthony Housefather]

Yes, you have two more minutes, sir.

[Chris Bittle, Liberal, St. Catharines, ON]

I can still keep talking. I'm sorry, you nodded as if I—

[The Chair, Liberal, Anthony Housefather]

I nodded at the sageness of your words, as opposed to—

[Voices]

Oh, oh!

[Chris Bittle, Liberal, St. Catharines, ON]

Okay. I appreciate that.

I was wondering also if you could expand on bail and what the issues are there. Why are there individuals who keep coming back? Why is that a significant issue for individuals and for LAO?

[David McKillop]

In terms of understanding who our clients are, legal aid clients are the most marginalized members of society. They're very poor and, again, they suffer from mental health and addiction issues.

Once they arrive in the courts, they are asked to provide sureties to the court. Sureties are generally upstanding members of the community who are going to ensure that the person comes back for subsequent court appearances. A lot of people who live on the streets or are very marginalized don't hang around with those types of people. They don't have what would be considered an acceptable surety for the courts, but this insistence on sureties still happens. There are also the conditions that get placed on some of these individuals. You hear them telling alcoholics that they shouldn't be drinking alcohol, and it just sets them up to fail. We see a huge amount of court time, police resources, and legal aid resources going into defending charges of breach of these conditions.

I think there needs to be a wholesale review of the bail system to ensure that for most non-violent offences there is not a need to incarcerate these individuals and that we reserve remand for the the most violent of offenders.

[Chris Bittle, Liberal, St. Catharines, ON]

I have one very short question, and perhaps it's not fair. Do you know the percentage of court time at the provincial level, or remand court, spent on breach of condition-type cases?

[David McKillop]

I do not know that number precisely. My best guess is that probably upwards of around 15% of court resources go to administration of justice charges.

[Chris Bittle, Liberal, St. Catharines, ON]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. MacGregor.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you very much, Mr. Chair.

Mr. Field and Mr. McKillop, thank you very much for appearing before the committee today.

I want to visit specifically the issue of civil legal aid. On December 13 last year, we heard testimony from the Canadian Bar Association about the Canada social transfer and how there tends to be finger pointing between the federal government and the provincial government. That can be true for a lot of different areas. The federal government can say that they do fund civil legal aid, that it's in the Canada social transfer. Then the provinces can say that, no, they don't, because we use that money for other stuff.

We have testimony from colleagues of yours from other provinces, specifically Alberta, who appeared before the Senate committee. They've noted that the announcement of new funding for legal aid programs doesn't really do all that much.

What I want is a little bit more testimony from you on the Canada social transfer and to know how we should prioritize funding for civil legal aid. Do you find, as in Ontario's example, it sometimes gets lost in the mess?

[David Field]

That's a tricky question, given that our political masters will be paying very close attention to what we're saying today.

I think it does. For us, as a recipient of provincial funding, we really don't get into the middle of the debate about federal-provincial transfers and the investments the federal government makes in civil legal aid. I don't know how it's measured by the province and how that's taken into consideration when they're determining the transfer payment we receive as an agency. I don't think I can make a comment that would be of any help in trying to address this issue.

It would be nice if we could identify more specifically funds that would come from the federal government for legal aid, but I think there are a lot of other political issues that need to be taken into consideration as part of that discussion.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Mr. McKillop.

[David McKillop]

My own view on that is that the Province of Ontario has a criminal justice agreement with the federal government. That amount of investment from the federal government is specifically tracked through our performance measures that attach to it. We can say exactly what that money buys for the federal government. We can do the same on the refugee file. There is an agreement in place, and we know how much money specifically comes from the federal government.

We don't have that luxury with the Canada social transfer. In my view, we are unable to say what the federal government would get for its money. There is no specific amount. There are no performance measures attached to that amount of money. You're right; it's lost in a much larger transfer. I think that having it separate would give us the ability to provide a much better performance measure in reporting on how family law services are being delivered and at what cost.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

We've had representatives from British Columbia who noted that 30% to 40% of litigants in civil law cases go unrepresented. We know that a lot of the people appearing are women. We've heard from officials at the Department of Justice that they have not conducted a gender-based analysis of legal aid funding. Do you think that's necessary in order to piece out some of the inequalities that exist?

[David McKillop]

Absolutely. I think the more we know about our clients, the more it allows us to better tailor services toward them. Right now we ask all of our clients to self identify as indigenous. That gives us some of the statistics that Mr. Field quoted about the number of indigenous certificates we issue, and we certainly can do that on a male/female basis.

We have actually just embarked on an initiative that will allow for the collection of race-based data from Ontario legal aid services. Again, we can track the clients we're trying to assist the most, the most vulnerable clients, who are overrepresented, for instance, in the criminal justice system. Knowing as much as we can about our clients is something that we would be very much in favour of.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

We've heard the figure that for every dollar invested in legal aid, you can save six to seven dollars in other areas. Can you tell me a bit about what some of the cascading effects are, in Ontario specifically, when clients don't have adequate legal representation? Are there specific areas where you've noticed ripple effects from that in Ontario society and social programs?