Justice Committee on Feb. 7th, 2017

[Ryan Fritsch]

I think systemic thinking would actually be encouraged. Right now if one court has a few more resources than another, they might share who goes where. This happens already in Toronto, where the mental health court at Old City Hall takes the high threshold clients, and the other courts might deal with some of the less serious cases.

Similarly, if you're a woman charged with an offence, you're going to College Park in Toronto as opposed to Old City Hall. It goes back and forth.

I think if you want to have a coherent legislative framework that guides this, it needs to take into account local conditions and local resources. By holding everyone to a similar standard, I think you would encourage the normalization of interjurisdictional sharing arrangements, whereas right now they tend to be quite ad hoc.

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

You mentioned that you had a significant part in the 2016 study.

Is it too early to see any of the results from that, recommendations that we could apply or that our committee could make?

[Ryan Fritsch]

I think a lot of the vision or the goals that Legal Aid's mental health strategy is driving towards would also be goals that you could achieve by following some of the recommendations I'm making here today. For example, that strategy identifies the value in having continuity of legal representation of a client. If the person representing you is constantly changing, you have to tell your story over and over again. That's traumatizing in and of itself. Also, someone who's able to follow you through the system is better able to help pick you up when you falter. They know your story already. They know what has or hasn't worked in the past. They know the barriers that you face.

By having a sort of coherent or better-defined system, you get those kinds of benefits that come along with it. Similarly, I think by investing in these kinds of programs, you would give them much more permanence. It becomes a lot easier to plan for this stuff and to help grow these programs, as opposed to just letting them live as these little vestigial efforts.

I think if you read that report, a lot of what's in there in terms of vision and goals would be the same sorts of things that these reforms could drive towards.

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

Thank you so much.

[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. Fritsch, I'll start with you. I want to thank you for reminding this committee that these issues don't happen in a vacuum or a silo, and especially that something like mental health crosses so many different policy areas. You mentioned that it falls under health care. There are the social determinants of health and the reforms that are needed in our criminal justice system, and how that seems to be a big chunky object when it's meeting these very specific cases.

In your exchange with Mr. Bittle, he made mention of the fact that from this committee's point of view, we want to make some concrete recommendations to the federal government, and in your exchange with Mr. Nicholson, you were talking about the framework and the structure.

I would like to know specifically from you, when we make our recommendation to the federal government with specific attention to those people who have mental health issues, how the federal government can step up in a concrete way to make sure that legal aid is adequately addressing the needs of people with mental health issues.

[Ryan Fritsch]

I suppose if you took the approach of thinking about this in terms of vision or where we want to go with this, you could think about such things as perhaps earmarking funds.

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

Yes.

[Ryan Fritsch]

I think that a bit of investment in this particular group of accused could go a long way. If you tie those funds to models that are shown to be effective, you'll have set a standard that courts can attempt to achieve. Why not have performance benchmarking? Why not set targets? Why not develop ideal models, maybe several, that would work in different contexts, different jurisdictions, and different client groups? Women and aboriginal accused, for example, have very different mental health needs than do others.

I think by taking that leadership role, by setting those kinds of standards, whether in policy or tied to funding, you would help encourage everyone to take the next step. That is, to think about what they're doing a little more systemically, a little more coherently. I think that would make it easier for the provinces to then help support these programs as well. If they have some certainty, I think it becomes a lot easier to describe a system that attaches health care to the courthouses. It becomes a lot easier to envision having different kinds of workers providing services right at the courthouse where these clients go. Those kinds of things, I think, can happen.

I also think that with some leadership around best models and tying that to incentives and funding and so forth, you would find a lot of efficiencies, honestly, and you could ensure that the money would be spent as well as it could be.

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

Thank you very much.

Mr. Paterson, I'm a fellow British Columbian. Welcome to Ottawa. I appreciate the testimony you've given.

I was looking through the report by BC Civil Liberties called “Justice Denied”. In that report and in some of the evidence we've heard through this committee, it has been noted that reports from Australia, the United Kingdom, and the United States “estimated that each dollar spent on legal aid funding can result in savings to the government of anywhere from $1.60 up to $30.” Your testimony reflected that information about return on investment.

My question goes along a similar vein. In the major transfers we have to the provinces, there are equalization payments, the Canada health transfer, and the Canada social transfer. When we are looking to make recommendations to the government about earmarking specific funds, are you envisioning some kind of legislative framework for this type of funding to make it similar to the Canada health transfer, which has conditions that it meets? Can you just give us your idea of how that would look?

[Joshua Paterson]

That would be one way of doing it, setting up some legislation around that at the federal level. You may hear from provinces that they don't prefer that approach. I think there's a lot of scope for the federal government to exercise leadership in conversations, and in discussions and negotiations with the provinces, from one attorney general to another, and from one minister of justice to another, to try to come up with, for example, national standards and these kinds of things. We've seen that in other areas of shared jurisdiction in which routes other than legislation were used. Certainly we wouldn't object if a legislative route were to be used and if the money were to be specifically tied, but neither would we object to a well-functioning system in which the federal government used its suasion and its spending power to show some leadership in this area of shared jurisdiction.

Obviously there are questions regarding the division of powers, but fundamentally, there's only one Canadian facing the courts. Governments need to work together to make sure that in the different parts of the country they get the services they need, in sensitive ways that may vary from one part of the country to another, and with particular attention paid to the special needs of particular groups such as those Mr. Fritsch has mentioned, as well as indigenous peoples and others.

The difficulty with any exercise of national benchmarking, whether it's done informally or whether it's done through legislation, is coming up with one-size-fits-all types of approaches. We fully recognize that can be a difficult exercise, but we think it's possible to do it in a way that achieves some national-level leadership. They've tried that in Australia, and we will see over time whether it's successful or not.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. MacGregor.

Mr. McKinnon.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Mr. Paterson, thank you for coming.

You mentioned in your recommendations that you'd like to see legal aid as an essential service. Could you expound on that? What would that look like? What would that encompass, and how would that be funded perhaps?

[Joshua Paterson]

Thanks very much for the question.

I can say what the Canadian Bar Association has had to say, which we subscribe to as well, and that is that essential legal needs are those needs or legal problems that put in jeopardy someone's liberty, personal safety, security, health, housing, or the ability to meet the basic necessities of life. That seems like a pretty broad range of things, but the legal aid systems that are already in place have mechanisms right now for serving the public. So the questions are what standards do they use, what are the eligibility criteria, and what things are covered? It's not as if the mechanisms don't exist now.

When we deal with other areas that we consider to be essential—education, health, emergency services, and so forth—we have structures in place for those too. My answer is that it's a little difficult to give...in that I think what it comes down to isn't necessarily a change to the structure that you would set up in any province but a prioritization in funding and a change in the understanding. As I said in my response to Mr. Nicholson, certainly in our province, legal aid has been one of the first places governments go to cut. Making something an essential service, or trying to get that recognition to be shared by governments, whether voluntarily or through some other means, would set out the proposition that it wouldn't be the first place you would go because of the cascading effects and the cascading costs to the public purse that result. I think it's a change in mindset perhaps more than it is the creation of structures.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you.

This all seems to boil down to a funding model: who is going to pay for it and how much money is available? Is that the biggest problem with the current legal aid system?

[Joshua Paterson]

It's a critical problem. I think a lot of the other problems flow from that. It's not just a question of saying let's throw more money at it. However, many of the problems that we could enumerate, such as the cut-off being too low or it being administered in one way or another that was problematic, could fundamentally be traced back particularly to the federal government in the 1990s. In 1996, it changed the way it was paying for things, essentially moving from sharing 50% of the cost of criminal legal aid to covering 20% of the cost. Money is a key piece of it, but that doesn't mean there aren't huge questions about how that money is channelled and how it can best be channelled.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Regarding the various jurisdictions in Canada, are you aware of other jurisdictions, or is B.C. an example we can take as a model to follow?

[Joshua Paterson]

As I said in my testimony, sir, certainly here in B.C. we look wistfully at the situation in Ontario, but folks in Ontario have been before you and I completely support their submission that they have a great deal of difficulty as well. If I were to say where within Canada I hoped the other provinces would get closer to, it would be Ontario. The eligibility threshold is higher in Ontario. The tariff rates are higher in Ontario, which promotes more lawyers being able to do it. Lawyers often want to do the work but can't afford to. You get a 10-hour contract in B.C. and you're going to work 30 hours. So if you get paid $80 per hour, you're going to get $30. A lot of pro bono work is being put in. That happens in Ontario too, but certainly I'm hoping that our province will find its way forward to get closer to Ontario where there's a network of community legal clinics. Although LAO may be cutting them, there is a network there. So I think Ontario would be the high-water mark in the country.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

I believe you spoke about the prospect of expanding the nature of services, for, say, family law versus criminal law. Would it not exacerbate the funding problem if you added more services from other areas, or would you say more funding in family law would help the criminal law side of things?

[Joshua Paterson]

I'm not sure it would exacerbate the funding problem. I think the bigger cost problem, and there have been studies to show this, is the cost that flows through the system to health care, to the criminal system, and to elsewhere in the system when a family law problem turns into a family law catastrophe, or when a poverty law problem with a landlord turns into a catastrophe: now you're homeless, perhaps you've lost your job, perhaps you're on welfare, and so on.

We think, and I think many of your other witnesses reflected this as well, that the investments to be made here, including in family law and including in poverty law, save various public purses, provincial and federal, many times more down the road.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. McKinnon.

We don't have time to do a whole other round. I'm wondering if anyone has any short questions they want to ask one of the panellists before we wind up.

Monsieur Boissonnault.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you.

I'd like to thank you both for your testimony today.

Mr. Fritsch, I'm interested in the intersectionality between people who are suffering from mental health and addictions and the justice system. Do you have any statistics? And who is represented in those stats? From other work we've done and from other data we have, we know that the indigenous population is overrepresented and that the LGBTQ2 community is overrepresented.

What do the statistics you have at your disposal tell you about who is represented in that intersectionality between mental health and addictions and where it intersects with the justice system?

[Ryan Fritsch]

Thank you very much.

Offhand, I can speak to a few of the groups you mentioned. I would refer you to a large study completed relatively recently by the National Trajectory Project, which looked specifically at those found not criminally responsible or unfit to stand trial. As far as I am aware, that's some of the best and most reliable and comprehensive data we have. I bracket that by saying that it's just looking at the NCR and unfit population. They found that of the entirety of that population—again, just those with serious and persistent mental illness—about 15% or 16% were women. As I recall, about 3% were aboriginal.

It raises some interesting questions. One question that the National Trajectory Project raised was what are the different mental health needs specific to women? I think there is a great opportunity to focus on that. I think very few courts, given that women are maybe one in seven or one in eight of these NCRs, are equipped to make sure they're getting the kinds of services and consideration they need.

On the other hand, you have aboriginal accused being found NCR. At 3%, that would seem to be drastically underrepresentative of aboriginal accused in the criminal justice system. Offhand, I think that covers somewhere around 15% or 20%. To me, I suppose, that raises some interesting questions about why that is. I'm not sure anyone has really done the research on this. Why are they not being found NCR or unfit to the same degree? What diversion path are they taking? Are culturally competent services being offered to those accused? Are they finding alternative measures other than going into the psychiatric system?

Those are all excellent questions. I think part of what the federal government might consider for its review of legal aid would be investing in research that can help us answer those kinds of questions so that we can tailor and target services to those vulnerable populations.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

If either of you is able to provide us with some indication of some of the most pressing research gaps that could be closed, we would take that into consideration in our deliberations regarding the report. Thank you to both of you.