Thank you.
On my and the Law Commission of Ontario's behalf, I'd like to thank the committee for the opportunity to talk about this very important topic. Just by way of background, the Law Commission of Ontario is an independent agency in Ontario dedicated to advancing law reform and promoting access to justice. Some of you may have heard of our predecessor organization, the Ontario Law Reform Commission. The closest federal equivalent would be the Law Reform Commission of Canada.
I'm the executive director of the organization. Also, in a previous life I was responsible for developing policy at Legal Aid Ontario for a long time, so I'm coming at this from both a law reform and a service provider perspective.
By way of introduction, I would like to adopt the submissions of other organizations, such as the Canadian Bar Association and others, about the need to improve funding for legal aid and access to justice; the need for national benchmarks to gauge the progress of that funding; and, finally, the importance of establishing access to justice as an important national priority.
I actually don't want to talk about those topics. Other witnesses have spoken about those issues quite thoughtfully, and I don't have anything to add beyond what they had to say. I can answer questions on these topics, but that's not what I want to talk about. I want to bring to your attention what are, in my view, the additional components, the other parts, of what I think would be a comprehensive legal aid or national access to justice strategy. In my view, funding, benchmarks, and establishing legal aid as an important national priority are necessary but not sufficient components of a national strategy. In my view, again, there are six or seven things the committee should keep in mind if it is considering recommending or developing such a strategy.
First, I believe that a national strategy should acknowledge that there is a national access to justice crisis and that this crisis has many facets. There's a crisis in criminal law, family law, and poverty law, and in the civil justice system. There's a lot of commonality among legal needs and services and legal aid programs among these different areas, but they're not all the same. It's important that any national strategy combine both national benchmarks, for example, with the recognition that local priorities and local services have to be decided on, at either a local, a regional, or a provincial level. It needs to balance both the national perspective and the regional or provincial perspective.
Second, I think it's important to further acknowledge that in the last several years there's been a lot of work done on access to justice and legal aid policy-making. Indeed, on the civil and family side, we have something close to a blueprint or a plan. That, of course, is the 2013 report of the national action committee, the Cromwell report, which set out many good ideas and recommendations for how to address the access to justice crisis on the civil and family side. I don't think the Cromwell report was either complete or perfect, but it's a good start. I would caution you against any recommendation to redo work that's already been done. We are well down the road to identifying what might go into this national strategy, and I don't think we have to spend time and resources redoing thoughtful work that a lot of people have already participated in.
Third, further to Cromwell and other initiatives, there is something close to a national consensus on what the elements of legal aid should be and which services or what should go into the legal aid basket to have a healthy, really good legal aid program. Sometimes people talk about that as being the core services, essential services, or foundational services. There are different ways of describing it, but it really involves a number of different elements, a number of different areas of law. You have criminal law, family law, child protection law, poverty law, and immigration and refugee work. There's an acknowledgement that legal aid should focus on low-income populations. There's a further acknowledgement that legal aid services and priorities have to take into account the needs of vulnerable communities, be they racialized communities, persons with mental illness and addictions, or indigenous peoples. There is wide acknowledgement amongst everyone in the system that legal aid programs and priorities have to focus on the most vulnerable clients.
When people talk about a wish list for legal aid or access to justice, that's really the stuff they're talking about. Those are the constellations of services and priorities that people are interested in. There are certainly debates within the legal aid world and in the access to justice world about funding, but they're debates about whether you should spend more on criminal law versus family law, poverty law versus criminal law. They're not debates about the overall objectives of a really good system. They're debates driven by constraint. The system has to make hard choices between these different services.
Just for your information, I'll let you know that there is also a consensus, I think, about what the boundaries of a good legal aid program are. In my experience, no one suggests that legal aid should be doing insurance litigation, for example, or that legal aid resources should be used to fund a neighbour suing a neighbour over some kind of civil suit. There is a kind of consensus that the basket of services really should be the ones I listed.
I would also add that this is pretty much an international consensus within the Anglo-American world. There are equivalent conversations in England, the United States, Australia, and New Zealand. Those kinds of services really are the sort of legal aid services and access to justice objectives that people are talking about in those jurisdictions as well.
The fourth point I want to make to you may seem obvious, but it bears repeating because I think it's crucially important. That is, any national legal aid strategy should acknowledge that client needs have to drive the system, not institutional needs or the professional interests of lawyers or service providers. This is crucial. It's a debate in the legal aid and access to justice world that's been going on for some time. Client needs have to be the touchstone on which we judge all programs' priorities: services, funding, everything. It's not about providing lawyers with a living. It's not about ensuring that people make lots of money doing this kind of work. It's about what we do with public dollars to ensure that clients are being served properly.
That said, in my experience the interests of lawyers and of clients, in most cases or in the vast majority of cases, intersect. There is a perfect congruence between the interests of a lawyer or a clinic or a judge who wants to do good work and a good legal aid program. It's not true in every case, however. In cases where there is a conflict between the professional interests of the bar and client interests, in my view a national strategy should prioritize client interests and should be explicit about that.
The fifth point I want to make is that any national legal aid strategy should acknowledge that there is actually quite an expansive federal role in access to justice and legal aid. To give an obvious example, we know about our criminal law and the shared jurisdiction. Provinces administer justice, but you have important pieces of legislation—the Criminal Code, and narcotics legislation, for example—that are in the federal sphere. That's an obvious example of where there is a federal role and mandate. So too is immigration and refugee law an obvious area of federal jurisdiction. So too is the area surrounding indigenous issues. That's another area very important to legal aid programs. There is obviously a federal role there.
It's equally true in family law, although people don't know this as much. The Divorce Act is federal. Child support guidelines and unified family courts are all important access to justice initiatives, programs, or services, whatever you want to call them, that are in the federal sphere but have important implications for provincial legal aid programs.
Finally, it's not well known that in the poverty law area, where people typically think of provincial services—housing, for example, or landlord and tenant work—there are a couple of very important federal tribunals for income support, including the CPP and employment insurance. If you talk to poverty law advocates, they do a lot of work in those areas. So that's another area where there is a direct congruence of a federal program and access to justice.
As well, as has been talked about at this committee previously with regard to mental health and addictions, there is appropriately a national mental health strategy. As you have heard from many people, that has very important implications for legal aid at the provincial level. There is an important federal role. It's not just the provinces.
My sixth point is not one that is talked about a lot in the access to justice conversations or in the legal aid world. I'm coming at this from my law reform perspective. In my view, any national legal aid strategy, access to justice strategy, or provincial strategy, for that matter, has to look at issues respecting both the supply and demand for legal aid services. When we talk about funding, service gaps, benchmarks, or efficiencies, typically we're talking about the supply of legal aid. If we were economists, not lawyers, we'd say that's great, that you're talking about how to increase supply. Then we'd ask if you are talking about demand. How can you reduce demand for services in the first instance so you don't have to keep on worrying about making services more and more efficient, to try to squeeze more and more services out of every particular dollar? When you talk about reducing demand for legal aid services and promoting access to justice, you're talking about law reform or about changes in practices that advance access to justice goals, but you do it in a different manner.
I'll give you two examples, one federal and one provincial. The first example is the obvious one. It has to do with bail. Bail reform is on the agenda of folks across the country. It's been well documented and well researched that there are systemic problems with the provision of bail in Canada. The most obvious manifestations of that are the high remand population and the systemic issues for racialized communities, indigenous communities, in bail.
What's less well known is how bail policy drives legal aid costs. I'll give you a classic example, and it's a very real one. I'm speaking from Ontario's perspective, because that's the one I know best, but I think this is generally true across the country. The test for getting a legal aid certificate in Ontario, the most expensive form of service at Legal Aid Ontario and in criminal law, is the risk of loss of liberty. It goes without saying that if you are denied bail, if you're being held on remand, by definition you have lost your liberty and you meet the test for getting the most expensive service. That's a clear example of where a bail policy is a direct driver of legal aid costs. If there were work done to ensure that remand was done more thoughtfully, more fairly, and more equally, that would have a very beneficial impact on legal aid costs. Those resources saved from that area of law, from that service, could then be reinvested into other parts of the program.
I'll give you a second bail example. I think you've heard about this at the committee. It has to do with bail conditions. Again, we know through research and experience, as documented by the Canadian Civil Liberties Association, the John Howard Society, and other organizations, the very serious consequential impact of bail conditions. What that means on the legal aid front and the service delivery and service demand front is that although a person may be released from bail and is free and isn't being held in remand, the bail can have a number of conditions. A lot of those conditions are controversial, as I'm sure you've heard. From my perspective, a lot of those conditions are unnecessary. When someone is out with a number of conditions, it's often easy to breach those conditions. Once you've breached those conditions, you're brought back and, suddenly, you're not being assessed for a simple assault or something—which, in the scheme of these things, is considered less serious—but are up on a fail-to-comply charge or a fail-to-appear charge. These are contempt of court charges, which are more serious. These put you back into the loss of liberty threshold, and so on and so forth.
There's a family example. I hope someone will ask me about it because I'm running out of time.
The final thing I want to draw to your attention for a national strategy is that I strongly recommend, in addition to talking about funding, benchmarks, services, efficiencies, and demand, that you also talk about the importance of the provision of high-quality services. The quality issue is something that has been talked about in other jurisdictions at some length. In the U.K., the U.S., and some other jurisdictions, there is real emphasis at the federal level, the provincial level, and the service-provider level to improve the quality of lawyering so that you get better services. Hopefully, the services become more efficient at the same time.
You will often hear that quality is about paying lawyers more. That's part of it, but that's not all of it. There are other things that can be done that require a smaller investment. Training, panel management, peer reviews, mentoring, non-legal supports are the elements of a thoughtful and comprehensive quality strategy that I recommend be included in your deliberations.
Those are my submissions. Thank you very much.
