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Osgoode Hall is a heritage building located in downtown

Toronto. This historic site is the focus for legal activity in


Ontario and has garnered attention for over 170 years.
Osgoode Hall occupies six acres and was acquired by the
Law Society of Upper Canada in 1829. The name Osgoode
Hall honours William Osgoode the first Chief Justice of the
province. Osgoode Hall withstood more than ten major
restorations. The front facade maintained its originality
and is basically unaltered to reflect the 1860 design.

The interior of Osgoode Hall possesses unique architectural


achievements. The heritage courtrooms are from the late
1800's. Convocation Hall boasts ten gorgeous stained glass
heraldic windows covering 4,000 years of law. The Great
Library touted as the most beautiful room in Canada has
an intricate ceiling, cork floors and triple cube design. The
rotunda is spectacular from the original tiling on the floor
to the elegant arched pillars surrounded by elaborate oil
paintings of former Chief Justices of the Province.

Since 1840 Osgoode Hall has been co-owned by the Ontario


Government and the Law Society. The Court of Appeal for
Ontario, the Superior Court Of Justice and the Law Society
of Upper Canada currently reside at Osgoode Hall.

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2
Crises over legal aid, the society’s fees and dues and
sensational discipline cases merged into a larger
debate over the meaning of professional self-
government in a time of competition and commerce.

It is hard to focus on that other society, the people


when you re in a frenzy for power for easy takings
from the people

Arrogant, snootiness and


Confidence due to power,
land owner, wealth, biased
advantage over Lower Tier
Crises over Legal Aid FEES

It is well documented what


lawyers do and as officers of
the court the Constitution
Act, 1982 documents what
they are supposed to do, but
they are all wrapped up
within them selves in a
power struggle to maintain
their unscrupulous
traditional ways.

I state with limp wrist that


they think they are “special”
and they would be having
the honour to structure a
legal system consistent with
the Constitution conducive
to every individual’s
guaranteed Charter rights.

What crises would they be


in if they did their job We must remember that tradition, how they thought and what they did is just that which we can compare
efficiently and cost as to their consistency with democracy that was relevant at the time and how they compare with that
effectively legally? which is required in “The Spirit of the Law” 1982 Constitution where the Charter applies to Parliament
and the Government of Canada and the Legislature and the government of Ontario where as equality is a
non starter with the biased people of the Upper Tier administering what they would have us believe is
Luxurious Lifestyle? justice for all but history shows their kind of justice is to fairly divvy up the loot they ransack from the
people of the Lower Tiers. They have documented it every step of the way with reality attesting to their
deception, prevarication ,manipulation and orchestration consistent with their avarice unscrupulous ways

http://books.google.ca/books?
id=cayAcTWRqmsC&pg=PA35&lpg=PA35&dq=statute+1797+law+society&source=bl&ots=lchlTnV6qi&sig
=VKs7PmGM9F14DcXveYBAYWSNE10&hl=en&sa=X&oi=book_result&resnum=4&ct=result#PPA9,M1
This link to over 350 pages but it is always a good idea
3 to know the enemy.
Reality is the truth impervious to perception yet precisely due to perception.
Noticeably absent is the public’s perception and when the public are invited to participate they are selective.
just like on TV

Cover Up

They have always been


illegitimate so how would you
document legal history?

For people always citing their


mandates are limited and they
have no authority to act on
behalf of the people’s rights
they are infact admitting the
deliberate incompetence of the
modus operandi of the
government to protect every
individual as guaranteed and
their interpretations of the law
are either consistent with the
Constitution or incorrect
interpretations where the
Golden Rule is “The Spirit o
the Law” The devil we can
have free

Empowered by legislative statute


to control entry to its ranks, define
its standards, and police its
monopoly of practice
Defining its standards must be
consistent with the Constitution
and policed to that standard.
A monopoly does not seem
democratic giving them the
opportunity to stray from their
responsibilities and not give a
damn about every individual’s
guaranteed Charter rights or
concern themselves with
evidence when it is against one
of their members. (See 2 part
Law Society of Upper Canada
document,)
I always felt they were
preoccupied but thought it had
something to do with acid or
other illusionary drugs. The
place to end is immediately in
2009

4
Honourable: admirable, worthy, praiseworthy, moral, principled,
good, respectable, upright.

Slow Learners!!! The concept is simple enough but when tugged to


tradition and benefits it is an overwhelming and impossible
challenge for they of the Law Society, who are all honourable.

“Fine words and an insinuating appearance are seldom associated with true virtue”

5
Their mandate is clear to ensure their membership is competent responsible and irreproachable with fortitude and
conviction to every individual’s guaranteed Charter rights consistently in “The Spirit of the Law” not that of the nefarious
bent.
That obviously means disciplining their members, which includes the Attorney General and the Minister of Justice as all
laws must be consistent with the Constitution or of no force or effect as to their inconsistencies.

Equality can only be consistently maintained if due punishment is consistently applied attentive to deterrence where no
person is above the law and it is the Attorney General’s responsibility to be the “guardian of the public interest” as it is
also the provincial governments responsibility to administer and enforce the Constitution as clearly stated by the Liar of
the DOJ in the January 22 2007 letter to me.

That is a clear demonstration of their nefarious bent as charlatans of deception, prevarication, manipulation and
orchestration as the Minister of Justice and Attorney General of Canada has number one precedence over secondly the
Ontario Attorney General according to the Law Society Act where they are both benchers, but the Ontario Attorney
General administers the Act and is of the false belief that he is not accountable to the Law Society the same as the Law
Society believes they are not accountable to the people as they do not give a damn about them.

Clearly the government of the day provided the Law Society the authority to ensure their members are competent and
responsible and when complaints are filed against them of being inconsistent with the provincial Constitution that must
now be consistent with the 1982 Constitution they must be punished greater than the loss of their victim who is guaranteed
equal protection and benefits of the law and every taxpayer is deprived if they do not charge the criminals the full costs of
running the legal system. The law demands they eradicate amoral inclination but that would not be good for their
flourishing luxurious business of organized crime that they run out of our government offices unfairly funded with the
Middle Class picking up more than their fair share of the tab to fund the criminal elements defence that they pay to
punishment attentive to deterrence. Meanwhile these illegal beagles obstruct the Middle Class from their rights under
section 24. (1). Lawyers thought they had an easy ride. This will be covered extensively in BLACK BOOK V.

6
7
By the late 1960’s
the ministry was
developing its own
agenda!!

Attorney General managed a substantial


redefinition of the Law Society but
today sees nothing wrong with their
actions
the 2 partinLaw
the Society of U C
document
Probably because the Law Society
sees nothing wrong with the actions of the
Attorney General
The Lieutenant Governor sees nothing
wrong with either of them and the
Attorney General sees nothing wrong
with either of them and the Law
Society sees nothing wrong with either
of them and the Premier thinks it is all
okay and they all think he is a jolly
good fellow. The DOJ - Minister of Note: Commentary in green has been all irrefutably documented
Justice and Attorney General likes and a prodigious amount of evidence has been published on the
these guys and didn’t want to have to Charter Democracy Force web sites and affiliate www.uRus.ca
spank them so he lied to me in his where links to the CDF sites are provided.
January 22 2007 and kept the RCMP
off their backs, because after all the Pertinent evidence is published in the BLACK BOOK series
Minister of Public, Safety Stockwell published on the Scribd site and others.
Day at the time is one of the Ministers
that he advises as Mr. Day was Throughout the government correspondence is their consistency to
responsible to the public and their M.O. as charlatans of deception, prevarication, manipulation
Parliament for the RCMP and if he and orchestration with the aid of the media.
had of done the right thing the Prime
Minister would have had to fire him if
he could get the job done before he It pays to stick together, especially when it is all fixed that way from the
gets fired. All being in on the start and if you get one ratting on the other we would need the Pied Piper
conspiracy to lead the entire government upper echelon out of Country to the
Dictatorship country they belong… after we get our money back.
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Law Society voices support for sustainable legal aid

Tuesday, February 13

Organization: Release: Law Society of Upper Canada

TORONTO, Feb. 12 /CNW/ - The Treasurer of the Law Society of Upper

Canada, Gavin MacKenzie, today expressed the Law Society's continuing concern over the
need for a well-funded and sustainable system of legal aid in
Ontario.

The Law Society does not give a damn about every individual's
guaranteed Charter rights and are only interested in money to
supplement their luxurious lifestyles.

"We believe that the right of vulnerable citizens to legal assistance is an important
component of the administration of justice in a free and democratic society," the Treasurer
said. "Since the Ontario Legal Aid Plan was founded in 1967, the Law Society has recognized
that legal aid should be considered a right, not a charitable gift, and that individuals are equal
before the law only if they are assured the option of legal
representation."

They have this sincerity about them when it is money time supporting democratic and
Charter rights publicly but the individual victims know the truth about the nefarious
bent.

We are all obviously vulnerable to them as they make their run for the money once
again at the beginning of a financial economic downturn that they caused as they
look for a %50 raise. (More in the Recap)
Since 1982 it was guaranteed to every individual and the taxpayers pay enough not to
consider it a charity or anything else but a possession, personal property attached as
an arm or a leg.

"More than a million Ontarians benefit from Legal Aid Ontario every year, many of them
through our excellent clinic system", he added. "Legal aid also helps many vulnerable
Ontarians with family law, criminal law, workers' compensation, immigration, landlord-tenant
and other legal issues." But there are still many thousands of individuals in Ontario who
cannot afford legal services and do not qualify for support from the system. The income
threshold is far too low - if you earn just over $13,000 a year you are too rich to
qualify for legal aid. We are alarmed by the dramatic increase in the number of people who
try to represent themselves in court without the benefit of legal representation or advice about
their rights. Others simply give up their right to a fair hearing. For
all of these people, access to justice is denied."

What the hell would they know about a fair hearing?


9
The York Regional Police used that word “Threshold” when they said my irrefutable evidence of the
criminally fraudulent crimes committed at the ORHT did not meet the “Threshold” to proceed before the
courts. (See the 2 Part Sun Editor October 8 2006 document for the irrefutable evidence. It is all
published on the Scrbdt site. Link provided in Recap)

The criminal element flourishes as a result

The Law Society has known that since the legal aid crises in
the late 20th century and then the reason for the Legal Aid
Act in 1967 contrary to every individual's democratic rights.

Money is their preoccupation setting out laws that find them


in prosperity amongst the carnage they purport to care about.

In 1982 it became mandatory to ensure every individual's


guaranteed Charter rights of equal protection and benefits are
guaranteed but they got the Legal Aid kitty funded and hence
began to provide the amoral and criminal element legal council
funded by the taxpayers who could not afford to access the
court system themselves thereby adverse to their guaranteed
Charter rights of equal protection where punishment attentive
to deterrence is the only viable means of present knowledge

The Law Society regards the Attorney General's appointment of Professor John McCamus to
review legal aid issues and the establishment of a working group with Legal Aid Ontario as
important steps toward the development of strategies to improve the efficiency and
effectiveness of legal aid, including the provision of adequate and stable funding.

FACT SHEET

Backgrounder on Legal Aid in Ontario

As early as the 1920s, lawyers in Ontario recognized the need

for a legal aid system in this province. The need became palpable

over the next two decades, and in 1951, Ontario became the first

province in Canada to pass legislation establishing an organized

legal aid programme.

>> Since that time Ontario's legal aid programme has undergone several transformations.
Initially, the programme was controlled by The Law Society of Upper Canada (the "Law
Society") and financed by the provincial government. Those in need of legal aid services went
to their local law association and sought eligibility based on proof of legal and financial need.
Only criminal and civil law proceedings were covered at that time. Lawyers provided legal

10
assistance on a volunteer basis and were only paid for disbursements and administrative
expenses - not their labour.

The voluntary plan was unable to adequately meet the demand for legal aid services, and in
1963, a Joint Committee of the Ontario government and the Law Society was appointed to
develop a new system. The Joint Committee recommended a formal system modelled on the
legal aid plans of England and Scotland where private lawyers acted for clients on legal aid
certificates and were paid for their services. Based on the Joint Committee's
recommendations, the Ontario government created the "Ontario Legal Aid Plan" in 1967.

It soon became clear that, while low-income individuals needed legal aid certificates in
growing numbers, they also needed many legal services that the private bar could not provide.
To service those needs, the first "community legal aid clinic" opened in Toronto in 1971.
Clinic lawyers focused on poverty law services such as workers' compensation, social
assistance, and landlord-tenant disputes. They also worked on community legal education and
important law reform and community development initiatives. Initially funded by charitable
grants, the clinics began to receive provincial funding in the mid-1970s.

Both the legal aid certificate programme and the community legal clinic programme grew
substantially throughout the 1980s and 1990s. Several factors - including an economic
recession - led to a dramatic increase in the need for legal aid certificates by Ontarians in the
early 1990s. That same decade, federal contributions to provincial legal aid programmes were
capped.

Another review of Ontario's legal aid system was conducted in 1997. The resulting
"McCamus Report" recommended the creation of an independent body to govern the Legal
Aid Plan. In response, the Ontario government created Legal Aid Ontario ("LAO") - an
independent, publicly funded, publicly accountable non-profit corporation that continues to
administer the province's legal aid programme today.

LAO is the second largest justice agency in Ontario and one of the largest providers of
legal services in North America. Every year, LAO serves one million of Ontario's most
vulnerable citizens. Its clients often have language and cultural issues, literacy and education
issues, or mental health issues. Some clients have drug or alcohol dependency, or may have
experienced domestic violence or human rights violations. LAO provides services in a
number of different ways, including certificates, duty counsel, community legal clinics, public
legal education, alternative dispute resolution, and self-help materials.

These society problems are due the fact the government organized crime ransacks
society rather than fairly distributing the countries wealth and these particular
conditions are necessary for their membership to flourish to luxurious lifestyle while we
must provide them the victims that they refuse to support that allows the amoral to
advance to hardened criminals before the criminal messes with someone with money
when they call out the reserves looking for every viable option to ransack, such as
insurance companies who pass their losses back to the consumer.

11
These members of the Law Society have infested the corporate world and I reiterate that
they and the government are responsible for the latest financial downturn as they
always are and are also responsible for wars.

Individuals seeking legal aid are still subject to a review of both their financial circumstances
and the type of legal problem they are facing. In some cases, clients are required to make
some financial contribution to the cost of their legal services. To be clear about whom LAO is
assisting, LAO indicates that an individual will probably be eligible for legal aid if their net
annual income is at or below $13,068.

What Ontario lawyers perceived in the 1920s, what the Joint Committee expressed in the
1960s, and what many people experience first-hand in Ontario courts every day, is that
individuals are equal before the law only if they are assured
the option of representation by counsel. In a democratic
society,everyone should be able to participate fully in
society and have their rights protected.

Canada has an adversarial justice system that anticipates two roughly equal parties
presenting their cases before a judge in a court of law. What happens if there is an imbalance
of power between the two parties? When an Ontarian cannot afford to hire a lawyer, an
imbalance of power exists,especially when the state is one of
the parties, as in criminal law and child protection cases. Legal aid attempts to correct
this imbalance by providing low-income individuals with legal representation.

The legal aid system contributes to ensuring the potential for equal protection and benefit of
the law for the poor and disadvantaged in our society.

How obvious is it that any individual, no matter how much money they have is at a
humongous disadvantage against the government organized crime with the rest of the
individual’s unknowingly supporting the government against the individual who
fighting for their Charter rights as well as his own…like me and the multitudes of
people doing the same as they waste the taxpayer’s money defending the members of the
Law Societies from the people.

CanLaw a national lawyer referral service clearly states so right on their front page
www.canlaw.com They have many horror stories but their people and the Bar
Association are afraid to file charges because their business would collapse when the
judges take it out on their clients.

The Legal Aid system is precisely adverse to every individual's guaranteed Charter
rights consistent with the modus operandi created by the members of the Law Society
who refuse to support every individual's guaranteed Charter rights creating the poverty,
hopelessness and despair that begets the criminal element that they need to create
victims, both necessary for their luxurious success having the nerve to make the
12
taxpayer fund the defence for the criminal element, the persons they drove to amoral
persuasion rather than deterrence of the criminal element in support of every
individual's guaranteed Charter rights.

Dealing with the root of the problem is not a probability when they are the root

Like its predecessors, LAO continues to grapple with funding pressures while the demand
for services continues to rise. Many factors influence the demand for legal aid services. In
addition, LAO has never achieved predictable, inflation-protected funding. Numerous cost-
saving and other initiatives have been implemented by LAO and by the government - from
diversion programs in criminal law, to the expansion of settlement conferences in family law,
to wider use of duty counsel - in an effort to reduce legal aid costs. While these initiatives
have been valuable in many cases, they have not put LAO on a sound financial footing.

For more information about The Law Society of Upper Canada, please see our website at:
www.lsuc.on.ca

For further information: Roy Thomas (416) 947-7619, rthomas@lsuc.on.ca or Lisa Hall,
(416) 947-7625, lhall@lsuc.on.ca

See Toronto Star involvement that has been provided the evidence for three years now, but they
refuse to publish it as they aid abet the conspiracy.

http://www.scribd.com/doc/9829870/Star-Lawyer-Increase-Saturday-July-262008

http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/trebilcock/section2.asp

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Section II: SUMMARY OF THE MAJOR FINDINGS OF THE 1997 MCCAMUS
REPORT

I. DEVELOPMENT OF THE LEGAL AID SYSTEM IN ONTARIO

a) Historical Framework

The first major shift in the delivery of legal aid services in Ontario began in 1967. Prior to
that time, the delivery of legal assistance to low-income Ontarians was viewed as a charitable
service by the legal profession. The three key principles underlying the introduction of the
Legal Aid Act, 1967 were: 1) the delivery of legal aid services was to be based on the judicare
model, whereby certificates would be issued to members of the private bar providing legal aid
services and by the government; 2) the enabling legislation conferred an entitlement to legal
aid to anyone who met the eligibility criteria; and 3) it was to operate as a partnership
between the province and the Law Society of Upper Canada, with the Law
Society responsible for the day-to-day administration. The governance framework, funding
structure, and delivery models by the Legal Aid Act, 1967 continued to operate for almost
three decades.

Though the lawyers were not paid I wonder if they could write it off somehow on
their taxes?

They have a way of looking out for themselves with every opportunity to do it.

b) Signing of the Memorandum of Understanding

By the 1990s, the soaring costs of legal aid became a significant concern to the Ontario
government. As a result, in 1994, in the context of a deep recession in the province and a
growing government deficit, the Ontario government announced that the funding of legal aid
certificates was to be subject to a fixed annual government contribution. At about the same
time, the federal government started to provide its financial contribution to legal aid in fixed
amounts unrelated to the actual need in provinces and territories, and withdrew its funding of
certain areas of law, such as refugee matters, as well as Northern legal services administered
by the Nishnawbe-Aski Legal Services Corporation.

The result of these financial factors was the Memorandum of Understanding (MOU) entered
into by the Law Society and the provincial government in September 1994. The MOU
required the Ontario Legal Aid Plan (OLAP), for the first time since its inception, to operate
within a predetermined funding level for certificates. The MOU also set out a four-year
funding commitment.

c) Implementation of the MOU

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In order to implement the new funding restrictions required by the MOU, the OLAP imposed
service cuts in 1994, 1995, and 996, which resulted in 150,000 fewer certificates being issued
per year. The availability of legal aid services for non-family civil law was severely restricted.
In order to effect further reductions, prioritization of the types of services offered was also
undertaken in the areas of family law, criminal law and refugee and immigration law. A
justice strategy was also established to help lower legal aid costs, which included diversion
programs and early Crown charge screening. In 1996 the Law Society eliminated all block-
fee in criminal matters, introduced maximum billing caps on certificates, and implemented
stricter client financial eligibility requirements.

II. THE ESTABLISHMENT OF THE 1997 LEGAL AID REVIEW

On December 13, 1996, then-Attorney General Charles Harnick, established the Ontario
Legal Aid Review ("the Review"), an independent task force to be chaired by Professor John
McCamus, former Dean of Osgoode Hall Law School. This was the first comprehensive
review of Ontario's legal aid system since the modern program's inception. 1 The mandate of
the Review was to undertake a thorough analysis of the existing legal aid system in the
province, and to make recommendations as to its future direction. It was directed to study the
implications of capped funding on the system's future design, administration and governance,
and to identify the prevailing common legal needs of low-income Ontarians. To accomplish
this, the Review distributed a consultation paper, and received 170 written submissions in
response. In addition, a number of background papers were commissioned to examine current
unmet legal needs. 2 The result of the Review was the publication of the 1997 Report, "A
Blueprint for Publicly Funded Legal Services" ("the McCamus Report"). The McCamus
Report laid the groundwork for the Legal Aid Services Act, 1998 and the establishment of
Legal Aid Ontario. The Report formulated its overall findings in ninety-two recommendations
for reforming Ontario's legal aid system.

III. THE 1997 LEGAL AID REVIEW'S FINDINGS

a) The Legal Needs of Low-Income Ontarians

The Review found that the lives of low-income people are regulated in ways that are
overarching, complex, intersecting, and intrusive. 3 As many of the submissions to the
Review iterated, low-income people require access to legal representation when the law
intrudes in their lives in extreme ways, i.e. child apprehension, incarceration, or involuntary
treatment. The Review reached several key conclusions regarding the legal needs of low-
income Ontarians, including:

· low-income individuals have legal needs which differ from those with resources;

I wonder how much we paid for that information.

15
· factors which may contribute to a person's financial need, such as disability, age, or
race, can result in specific legal needs; and

· the allocation of legal aid resources should rest on the development of mechanisms to
assess the particular and changing legal needs of low-income Ontarians.

Obviously many of societies problems are spurred from poverty, low income families
and yet they control the minimum wage to a figure that ensures poverty providing many
avenues for the members of the Law Societies to profit to luxurious lifestyle with many
government offices set up to deal with the issue that suck the money from the taxpayers
destined to send them into poverty in a bottomless pit encircled by snakes with no
ladders out.

Disband all the government agencies, raise the minimum wage, make the employers who
hire on a part time basis limiting their hours so they do not have to provide benefits pay,
such as the grocery chains who become filthy rich by cheating the people of their hard
earned money.

Instead they have the tax payer of the Lower Tier cover their necessary benefits driving
them into poverty while the rich continue to get richer and the poor continue to get
poorer.

Give the people what they earn and deserve and disband the God damned Law Society
who thrives on the desperations of others that they create. Only when people have
money to spend over and above providing for their necessities will the economy work as
it should without the nefarious bent stealing everything that opportunity avails itself.

We will never have a moral society of sane thought and reason as long as the members
of the Law Societies, who are seriously devoid of the traits, are permitted to put their
spin to everything making it sound reasonable to the public who they have irrefutably
proven they do not give a damn about except for their ability to pay taxes and finance
their every initiative of nefarious bent.

The answer is obvious, make the rich pay more, being the only ones who can afford to,
having gained their money at the people's expense. You can not go ahead by allowing
the nefarious bent to deal with the symptoms they especially create for luxurious
lifestyles.

They are the most pathetic scum of the earth where all of society
must suffer so their Society flourishes along with their affluent
and influential friends in the corporate world.
16
Actually helping society is not in their
repretoire!!

IV. A FRAMEWORK FOR SETTING PRIORITIES FOR LEGAL AID SERVICES


a) The State's Obligation to Provide Legal Aid

The Report noted that a legal aid system operating within a capped budget must undertake
priority-setting exercises in order to determine how the budget will be allocated between the
competing claims.

The McCamus Report examined normative justifications for providing legal aid, and
determined that the state has an obligation in various circumstances to facilitate access to
law. Legal aid is one, but not the only, means for meeting that obligation.

The Report also set out the state's legal obligations under the
Canadian Charter of Rights and Freedoms, as well as the Young Offenders
Act 4, the Criminal Code, and the International Covenant on Civil and Political Rights, to
provide legal counsel in certain contexts. The Report found that the Charter
may require that areas of law other than criminal law be funded
by legal aid in the future.

No doubt, not may!! McCamus came through with the report they wanted so he gets
promoted and no doubt he got the job because they knew he would come through for
them.

b) Priority Setting: the Recent Experience

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At the time the Review was undertaken, priority-setting for the legal aid system was done in
two separate contexts: certificates and clinics. For the certificate side of the system, the Legal
Aid Committee, subject to review by the Law Society, was responsible for setting the
priorities of the legal aid plan. Following the signing of the MOU, a prioritization of services
in the areas of criminal law, family law and immigration and refugee law was done in order to
adjust to the capped funding. For the clinic system, each clinic's community board sets its
priorities. The clinics have operated within capped budgets since their inception, and
consequently had developed a great deal of experience with priority-setting and adjusting
their services in response to demand.

c) Towards a New Model for Priority-Setting

The Report foresaw that priority-setting would continue to be a major focus for those
overseeing the legal aid system if the system were to continue to operate within a capped
budget. The Report recommended that the following eight themes be considered when the
legal aid system engages in priority-setting:

· The importance of consultation and environmental scanning of needs;

· The importance of responding to a broad range of needs;

· The need for strategic oversight at the system-wide level coupled with responsiveness
to local conditions;

· The limitations of the "risk of incarceration test" in setting service priorities;

· The importance of integrating delivery-model issues within the priority-setting process;

· The importance of focusing the priority-setting debate on client impact;

· The importance of using resources strategically to facilitate access to law; and

· The importance of priority-setting being subject to revision in light

CaChing….CaChing

Do not take me wrong because the poverty situation most definitely


needs are help to eradicate the crisis that only flourishes along with
the Law Society and by merely getting rid of them and putting sane
competent responsible irreproachable persons in charge to restructure
the system consistent with the Constitution conducive to every
individual’s guaranteed Charter rights with an exemplary modus
18
operandi to make them competent responsible and irreproachable is the
only sane legitimate thing to do conceived of sane moral thought and
reason.

V. A BLUEPRINT FOR LEGAL AID SERVICES IN ONTARIO

a) Renewing the Commitment to Legal Aid

The McCamus Report emphasized that the successful implementation of any reforms to the
legal aid system would be predicated on the ability of the government and the legal aid system
to establish shared goals pertaining to the fundamental purpose of legal aid. One such goal
identified by the Report is access to justice. That is, the fundamental objective of the legal aid
system should be to promote equal access to justice by identifying and meeting the diverse
legal needs of qualifying individuals and communities. It was also thought necessary for there
to be a commitment by the government to the principles of independence, funding and
systemic reform in relation to the legal aid system.

The legal aid system itself needs to have a special commitment to the following areas: priority
setting in a needs-based system, quality of service, cost-effectiveness and accountability,
service delivery models, law reform, diverse needs, and governance.

b) Governance

One of the key considerations of the Review was whether the Law Society should continue to
have a governing role in the administration of Ontario's legal aid plan. The Report considered
the governance of legal aid in other jurisdictions in Canada, as well as the United States,
Australia and the United Kingdom. The Report outlined the following goals and objectives in
making a case for change in governance of the legal aid plan in Ontario: independence;
accountability for efficient use of public funds; obtaining adequate resources for legal aid;
ability to deliver quality services in a broad range of areas of the law; capacity to promote
confidence in the legal aid system; responsiveness to client needs; efficient governance;
coordinated management of the entire legal aid system; and innovation and experimentation.
The Report recognized that it is difficult for the Law Society to insulate itself from the

19
interests of the legal profession. The Law Society would thus face special challenges in
implementing reforms to the judicare system.

An obvious clear admission that the legal profession has other interests than justice consistent
with the Constitution conducive to every individual's guaranteed Charter rights of equal
protection and benefits whereas the office of the Attorney General presently Chris Bentley
has been provided the 2 Part law Society of Upper Canada document, the CanLaw
www.canlaw.com site, the

http://www.scribd.com/doc/9829870/Star-Lawyer-Increase-Saturday-July-262008

document and refuses to deal with the issues as “guardian of the public interest” being
the administer of the Law Society Act, a bencher and appoints the Chair but believes he
is not accountable to reprimand by the Law Society and the Law Society believes they
are above the law and needn’t give a damn about every individual’s guaranteed Charter
rights also believing that their job is to cover up the incompetence of their members to
act consistent with the Constitution conducive to every individual’s guaranteed Charter
rights.

Their insane ideology can be attributed to their nefarious bent to ransack society,
creating an empire with their members infested in the corporate world while protecting
their members from society while so doing.

Taking all of the above-listed goals into consideration, the McCamus Report recommended
that the governance of the legal aid system be transferred from the Law Society to an
independent statutory agency. This new agency could more effectively: understand, assess
and respond to the broad range of legal needs of low-income Ontarians; integrate
management and financial expertise at the highest level of governance; conduct a greater level
of experimentation and innovation with delivery models; coordinate the certificate system and
clinic system; and promote confidence in the legal aid system. The Report recommended that
the mandate of the agency be set out in the enabling legislation, which should require that the
agency provide services in the areas of criminal law, family law, immigration and refugee
law, and poverty law.

The government's primary role in relation to the new agency would be to appoint its members
and to assume political responsibility for defining the agency's mandate. The government
would also need to ensure adequate multi-year funding. The government must also, however,
allow the agency to determine its own method of priority-setting and service delivery in
providing the mandated services.

The government would need to ensure multi-year funding, meaning


you and I who they do not give a damn about.

20
Can we presume McCamus is a government Law Society person or
just a person who knows what they want to hear?

The Report outlined a strategy to implement the proposed governance changes, including
establishing the enabling legislation, identifying the appropriate individuals to serve on the
inaugural board, and working with the Law Society to ensure a smooth transfer to the new
administration.

The Report concludes with a summary of its ninety-two recommendations.

The previous study was the Report of the Joint Committee on Legal Aid, tabled in April 1965.
. Background Papers:

1. Current Utilization Patterns and Unmet Legal Needs by William A. Bogart, Colin
Meredith and Danielle Chandler

2. Special Legal Needs of People with Mental Disabilities by Patti Bregman

3. Legal Aid, Aboriginal People, and the Legal Problems Faced by Persons of Aboriginal
Descent in Northern Ontario by Donald Auger

4. Legal Aid Needs of Aboriginal People in Urban Areas and on Southern Reserves by
Jonathan Rudin

5. Normative Justifications for the Provision of Legal Aid by David Dyzenhaus

6. The Legal and Constitutional Requirements for Legal Aid by Nathalie Des Rosiers

7. Legal Aid Delivery Models by Susan Charendoff, Mark Leach and Tamara Levy

8. An Economic Analysis of Legal Aid Delivery Mechanisms by Hamish Stewart

9. Quality Control and Performance Measures by Sandra Wain

10. Legal Aid and Criminal Justice in Ontario by Alan N. Young

11. The Provision of Legal Aid Services Under the Young Offenders Act by Ron Levi

12. Case Study in the Provision of Legal Aid: Family Law by Brenda Cossman and Carol
Rogerson

13. Poverty Law-A Case Study by Janet Mosher

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14. Report on Immigration and Refugee Law by Audrey Macklin

15. Governance of Legal Aid Schemes by Martin L. Friedland

16. A Cross-Jurisdictional Study of Legal Aid: Governance, Coverage, Eligibility, Financing,


and Delivery in Canada, England and Wales, Australia, New Zealand, and the United States
by David Crerar

Home Events & Bulletins Osgoode Professor John McCamus Appointed Chair of Legal Aid Ontario

Osgoode Professor John McCamus Appointed Chair of Legal Aid Ontario

Ontario Attorney General Michael Bryant ’92 announced on June 19 the appointment of Osgoode Professor John
McCamus as Chair of Legal Aid Ontario for a three-year term beginning July 5, 2007.

“John McCamus is a recognized expert in the area of legal aid and will make an excellent Chair,” said Bryant. “I
have no doubt that under his leadership, Legal Aid Ontario will continue to provide quality legal services to low-
income Ontarians.” (Please see attached media release.)

Osgoode Dean Patrick Monahan said the appointment of McCamus, who will continue to be involved with the Law
22
School on a reduced basis during this period, is “reflective of his considerable knowledge and expertise in the area
of publicly funded legal services and his commitment to furthering Ontario’s justice system.”

In 1996 McCamus chaired the first comprehensive review of Ontario's legal aid system in its 30-year history, which
resulted in a three-volume report published in September 1997. Based on the recommendations of the McCamus
Report, the government passed the Legal Aid Services Act, 1998, which established Legal Aid Ontario (LAO) as an
independent agency responsible for the administration of the legal aid system. The LAO now has an annual budget
of more than $300 million and operates certificate, duty counsel and clinic programs that provide services to more
than one million low-income Ontarians each year.

Earlier this year, McCamus – who also served as Dean of Osgoode from 1982 to 1987 and Chair of the Ontario
Law Reform Commission from 1993 to 1996 – was retained by the Ontario government to update his 1997
“Blueprint for Publicly Funded Legal Services" report.

McCamus, who is currently a Vice-President and Chair of the Board of Directors of the Canadian Civil Liberties
Association, succeeds Janet Leiper as Chair of LAO.

“I cannot think of a better person than John McCamus to undertake this important work,” Monahan said. “Not only
does he have a very deep understanding of how our legal aid system works, he cares passionately about access to
justice. He will work tirelessly and collaboratively with everyone involved to improve our legal aid system. Ontario
citizens and our justice system will benefit from his leadership.”

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Home In the News Professor John McCamus Remembers a Great Chief Justice

Professor John McCamus Remembers a Great Chief Justice

Laskin was Supreme; The late Supreme Court chief justice Bora Laskin went where no
Canadian had gone before A non-conformist, he reinvented a stuffy bench while
appealing to the layman, writes Tracey Tyler
The Toronto Star
Sat 25 Jun 2005
Page: F3

23
Section: National Report
Byline: Tracey Tyler

Canada's great chief justice of the 20th century had a word for his successes in life
accidentalism. If true, Bora Laskin's arrival at the Supreme Court in the spring of 1970 might
have been one of the best-timed accidents in Canadian history.

To the south, the United States Supreme Court was coming off a series of star turns with its
history-making decisions on civil rights, from an end to school segregation to the Miranda ruling
on the right to remain silent.

Life at Canada's top court had little of the same electricity.

Caught in a straitjacket of English law, never daring to take the pulse of the public, its nine male
judges saw their job as correcting errors of courts below rather than developing a body of
Canadian-made law, an approach that earned the court no profile internationally and little
respect at home. Lawyers bemoaned its hidebound style.

Within a decade, however, an unassuming former law professor delivered the shock treatment
many felt it needed.

Laskin's appointment was the legal equivalent of Pierre Elliott Trudeau sweeping into office,
Supreme Court Justice Ian Binnie told a recent Toronto symposium that examined Laskin's
legacy - and his enduring appeal - 35 years after his appointment to the court, as its first Jewish
judge, and 40 years after his appointment to the Ontario Court of Appeal.

Many judges have served on the Supreme Court longer, but Laskin had an indelible impact.

The court that captured the country's attention this month with a landmark ruling on health care
was essentially one he created. He took a court that banned lawyers from citing works by living
authors and "reinvented" it - opening its doors to interveners and narrowing its focus to issues of
national importance, Binnie said.

Laskin, who died in 1984 at age 71, never lived to see the impact of the Charter of Rights and
Freedoms. But as they assess his place in history, many legal scholars credit him with paving
the way for the Charter by pushing judges to look beyond the letter of the law and consider
social realities.

That is the Letter of the Law that cedes to the supremacy of God, ultimately the “Golden
Rule” in the first line of the Charter

“Whereas Canada is founded upon principles that recognize the supremacy of God and
the rule of law.

This is all covered in the “Know the Law” document as the government shows their
unscrupulous side to us once again in the “Roles and Responsibilities of the Attorney
General” the “guardian of that most elusive concept-the rule of law- a well established
legal principal, but hard to easily define that protects the individual and society a whole.

24
The legitimate version of the rule of law is published in the aforementioned document
that is consistent with the Constitution and every individual’s guaranteed Charter rights.

This incompetent version allows the members of the Law Societies and government go
any which way they want with the government having the upper hand of course and the
taxpayers funding the long inane debates and of the nefarious bent.

There's something more.

"He was the only serious, intellectual, non-conformist disturber to serve as chief justice," Binnie
said.

It seems Canadians liked what they saw.

"In my research, everyone knew Bora Laskin ... but no one who was not a lawyer could ever
identify any chief justice after him," said Philip Girard, an associate dean at Dalhousie Law
School and author of Bora Laskin Bringing Law to Life, a new book out this fall.

"Laskin had a certain spark and he was associated with a lay person's idea of justice. He sort of
helped convince them the court was on their side."

It helped that he appealed to notions of what a chief justice should be. Looking every inch a part
of the establishment, Laskin fit perfectly with his mutton-chopped predecessors pictured around
the Supreme Court, Binnie said.

In truth, he was the justice system's most trenchant critic and an anti-establishment figure, a
trait sometimes discernible through an "armour-piercing gaze" that would put former Montreal
Canadien Rocket Richard to shame, he said.

Laskin enjoyed the oyster special at Ottawa's Rideau Club, but his favourite snack was a
sardine and onion sandwich. He once pinch-hit for the governor general by delivering the throne
speech (coached in French by daughter Barbara) but considered his proudest achievement
belting the longest home run out of the ballpark in his hometown of Fort William, now part of
Thunder Bay.

Frequently parting company with fellow judges on the law, he earned a reputation, some say
undeservedly, as a "great dissenter" - and some detractors.

"There were many lower court judges who hated him. They thought he was totally crazy," Girard
said.

Laskin dissented in no less than 108 cases in his 14 years on the court and many of his
opinions, considered radical at the time, did become law, including a groundbreaking 1975
ruling that Iris Murdoch was entitled to an equal share of the family's Alberta ranch after
separation.

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He most famously broke rank in the politically charged 1981 patriation reference. True to his
belief in strong central government, Laskin found it would not defy convention to bring the
Constitution home from England and entrench a Charter without consent from the provinces.
The majority view forced a first ministers' conference and a deal that alienated Quebec.

Binnie said Laskin's independent streak is why he remains intriguing. Trudeau's decision to
name him chief justice in 1974 would have been like making Martin Luther the Pope, he added.

It couldn't have helped that he leapfrogged over other judges with more seniority.

A chilly atmosphere predated his arrival at the court and may explain why he felt one of his
great contributions had nothing to do with law. It was building a lunchroom, said his son, John, a
judge on the Ontario Court of Appeal.

"At times, I think my dad found the Supreme Court of Canada to be a pretty isolated place.
Judges tended to go their own ways."

Laskin said he's not sure what his father would have thought of the symposium. He preferred to
look to the future, not the past. But the irony of the Law Society of Upper Canada hosting the
event in Osgoode Hall would have brought a smile to his face, he said.

The law society snubbed Laskin and two fellow professors, Caesar Wright and John Willis, by
refusing to recognize the faculty of law they created at the University of Toronto after they quit
their Osgoode Hall teaching jobs in 1949.

Laskin studied undergraduate law at U of T, then completed a master's and his legal articles
before heading to Harvard University to study for a master of law under future U. S. Supreme
Court Justice Felix Frankfurter in 1936-37.

Franklin Delano Roosevelt's New Deal was in full swing and people like Frankfurter were
challenging conventional legal thinking. A similar skepticism permeated Laskin's academic
writings.

"His basic message was the courts are really out of touch. They don't understand modern
conditions and are living in a nostalgic dream world," Girard said.

Laskin was born in Fort William on Oct. 5, 1912, to Russian immigrants whose priority was a
good education for their sons and who helped pay for it by renting out their home.

Laskin's father moved into a hotel and ran the family's furniture store, while Laskin's mother
went to work as a housekeeper in Toronto. Laskin and his brothers followed.

The academic credentials he racked up at Harvard weren't enough to get him a job after
graduation.

Shut out of Toronto law firms by restrictions on Jewish lawyers, he wrote case summaries at 50
cents each for law reports. In 1940, he took over for his former teacher at U of T and became a
"workhorse" later at the law school, teaching more courses than anyone else, said former
student and retired judge Horace Krever. Laskin's children say he would have happily stayed a
professor.

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"I think he enjoyed his work more than anyone I have known," said his son. "He also had a
capacity to work extremely long hours and a tremendous ability to survive on very little sleep,
which I don't have."

Two and 3 a.m. bedtimes were common, said daughter, Barbara, who recalls her father coming
down the hall late at night, rubbing his hands "in glee" after knocking off another judgment.

Laskin worked in a basement office his children called "the dungeon" but always had dinner with
his children and wife, Peggy.

There were many family vacations by car. Though not a good swimmer, Laskin liked being near
water and found it soothing. When they were together, he rarely talked shop.

"My dad had two great loves in his life. One was law. The other was his family," his son said.
"He watched me play basketball; he watched Barbara dance."

"The Laskins had a hoop in their driveway and it got a lot of use from the neighbourhood," said
Justice Stephen Goudge of the Ontario Court of Appeal, who got to know Laskin as the father of
his nursery school friend John.

Later, he came to appreciate Laskin's role in shaping the country's postwar labour law.

Courts were hostile to administrative tribunals, such as labour relations boards, but Laskin
argued they should be left to do their work. He was also in high demand as a labour arbitrator
and Girard considers Laskin's arbitration rulings among his most significant.

They include his decision during a 1958 strike at a Scarborough plant that arbitrators could
award damages for breach of a collective agreement.

On the Supreme Court, Laskin was in the minority in siding with Sophie Carswell's right to picket
her employer's business at a Winnipeg shopping centre, considered off limits as private
property. Laskin likened malls to modern-day town squares.

As a judge, Laskin liked nothing more than having former law students appear before him. But
nothing "peeved" him more than sloppy English, Barbara said. A lawyer who uttered the words
"at this point in time" was likely to be met with a stern stare, followed by the question, "You
mean, 'today?'"

He was proud when a former English teacher called to say she used one of his judgments as an
example of good writing. He always wrote in longhand, said his son, who does the same.

As he settled in on the court, Laskin churned out more judgments every year, said symposium
organizer Neil Finkelstein. He dissented less often. When he did, Justices Wishart Spence and
Brian Dickson often joined him. They were known as the "LSD gang."

And the others? Laskin rarely spoke candidly of those who disagreed with him, but former law
clerk John McCamus, now an Osgoode Hall Law School professor, recalls him letting down
his guard just once. When he arrived at the chief justice's office, Laskin, with a twinkle in his
eye, handed him a dissenting judgment.

27
Then, he dusted off an apocalyptic phrase, one used by reporters to describe conservative
judges who blocked progressive U.S. legislation in the 1930s.

"I wonder," he said, "what the Four Horsemen will think."

Illustration:

• Norman James toronto star file photo Bora Laskin fit the establishment style even as he
transformed it. Canada's great chief justice of the 20th century died in 1984 at age 71, leaving a
legacy of a Supreme Court that welcomed interveners and narrowed its focus to issues of
national importance. Bora Laskin in family photos with wife Peggy, daughter Barbara and son
John. "My dad had two great loves in his life. One was law. The other was his family," John
says. Bora Laskin in family photos with wife Peggy, daughter Barbara and son John. "My dad
had two great loves in his life. One was law. The other was his family," John says.

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http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/trebilcock/intro.asp#2

Section I: Introduction

I accepted an invitation in August of 2007 from then-Attorney General of Ontario, Michael Bryant, to
undertake a review of the legal aid system in the Province, with a view to reporting by March 2008. In
this task I succeeded Professor John McCamus of Osgoode Hall Law School and Chair of the McCamus
Task Force on Legal Aid that reported in 1997. 1 Professor McCamus had been appointed to undertake a
review of the evolution of the legal aid system in the decade following his report, about a year earlier, but
his appointment by the Attorney General as Chair of Legal Aid Ontario in July of 2007 made it
inappropriate for him to continue a review of an agency which he now headed. The Honourable Chris
Bentley was then appointed Attorney General of Ontario in October 2007.

My terms of reference required me to conduct a review of legal aid in Ontario since 1999, including a
consideration of the Legal Aid Services Act, 1998 2 and its regulations, focusing on the tools and
capacities to maximize effective administration and good governance of the legal aid system; and
examining alternatives to the current tariff process, including methods of ensuring regular reviews to set
and adjust the hourly rate paid to lawyers doing legal aid work.

My advice and recommendations will reflect the following principles:

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• Legal Aid Ontario's mandate is to promote access to justice for low-income Ontarians by
providing high quality legal aid services in a cost-effective and efficient manner;
• Legal Aid Ontario operates at arm's length from the government;
• Legal Aid Ontario must be accountable to the public through the government for the
quality of legal services and expenditure of public funds;
As the Legal Aid expands so does the government empire needing more money from the
taxpayer driving more into poverty until eventually, and quite possibly soon, civil unrest
that is inevitable world wide with the governments pointing fingers at each other and
then…
• The management and direction of Legal Aid Ontario must demonstrate expertise in the law
and the legal needs of low income Ontarians, and have knowledge and capacity of business,
finance, and management principles commensurate with a public institution of its size and
importance; and
• Lawyers performing legal aid work are a valued and important component of a successful
legal aid system.

By way of background, I was the Research Director of the McCamus Task Force and was responsible for
commissioning and overseeing the completion of 16 background studies of various aspects of the legal
aid system in Ontario and assisting with the writing of the McCamus Task Force Report. In 2000, Legal
Aid Ontario commissioned Robert Holden, former Director of the Law Society of Upper Canada's Legal
Aid Program, and the Honourable Fred Kaufman, former member of the Quebec Court of Appeal, to
undertake a review of the level and structure of the legal aid tariff for the certificate system in Ontario.
They in turn retained me as Research Director for their study. With the help of various technical staff and
research assistants, I prepared background material and analysis, in particular various quantitative
analyses of the evolution of the tariff relative to various comparators.

After taking up my current assignment in August of 2007, I read submissions that had been made to
Professor McCamus, along with notes of meetings which he had held with various stakeholder groups. I
also extended the time for the filing of written submissions to me until December of 2007, and extended
an invitation to all stakeholder groups to meet with me in person if they so wished (an invitation that
many accepted). Submissions received and meetings held by Professor McCamus and by me are listed in
an Appendix to this Report.

In this Report, in Section II, I briefly set out the context in which the McCamus Task Force was
appointed in 1996 and the major themes of its Report, which was released in 1997. In Section III, I review
the important features of the Legal Aid Services Act, enacted by the Ontario legislature in 1998, largely
responding and giving effect to the McCamus Task Force's recommendations. In Section IV, I outline the
notable achievements of Legal Aid Ontario (LAO) since it began operations in 1999. In Section V, I
summarize the major criticisms and proposals for reform of the current legal aid system made either to
Professor McCamus or myself in the course of written submissions by or meetings with various
stakeholders.

With these sections as a backdrop, I then turn in Sections VI, VII, VIII and IX of the Report to an
evaluation of future challenges facing the legal aid system in Ontario. In Section VI, I set out, by way of
framing the ensuing discussion, the major rationales for a public commitment to enhancing access to
justice and make a provisional and general assessment of how well the public commitment to this ideal
has been maintained over the decade that has followed the publication of the McCamus Report. In
Section VII, I go on to evaluate a range of either existing or potential alternative delivery mechanisms and
seek to establish the need for a much higher level of innovation and experimentation by LAO in the

29
mixed delivery system that it oversees. In Section VIII, I evaluate the future of the certificate system and
in particular the management of the level and structure of the legal aid tariff for legal aid services
provided under certificates by the private bar, and make the case for vesting the tariff management
function in LAO and establishing an institutionalized process for adjusting the tariff on a regular basis
thereafter. In Section IX, I turn to various governance issues relating to the management of the legal aid
system, now largely vested in LAO, which I broadly categorize as internal governance issues and external
governance issues. In Section X, I briefly conclude this Report by emphasizing seven key themes that I
believe emerge from it.

I conclude this introduction with some richly warranted acknowledgements: to Juliet Robin and Miranda
Gass-Donnelly, both counsel with the Policy Division of the Ministry of the Attorney General for
Ontario, who have provided invaluable assistance and insights in every phase of my Review; to Judy
Hayes also counsel in the Policy Division of the Ministry of the Attorney General, for expert and timely
research assistance; to Nye Thomas, Director, Strategic Research, LAO, for his patience, timeliness and
expertise in responding to numerous requests for information; to LAO for an extensive submission to me;
and to all the groups and individuals who in written submissions and meetings with me candidly shared
their views as to the strengths and limitations of the legal aid system in Ontario, and the challenges that
lie ahead as we collectively strive to vindicate the ideals of access to justice and the rule of law in this
province. Their views have critically shaped most of the important lines of thinking in the Report that
follows.

Section II: SUMMARY OF THE MAJOR FINDINGS OF THE 1997 MCCAMUS


REPORT

I. DEVELOPMENT OF THE LEGAL AID SYSTEM IN ONTARIO

a) Historical Framework

The first major shift in the delivery of legal aid services in Ontario began in 1967. Prior to that time, the
delivery of legal assistance to low-income Ontarians was viewed as a charitable service by the legal
profession. The three key principles underlying the introduction of the Legal Aid Act, 1967 were: 1) the
delivery of legal aid services was to be based on the judicare model, whereby certificates would be issued
to members of the private bar providing legal aid services and paid by the government; 2) the enabling
legislation conferred an entitlement to legal aid to anyone who met the eligibility criteria; and 3) it was to
operate as a partnership between the province and the Law Society of Upper Canada, with the Law
Society responsible for the day-to-day administration. The governance framework, funding structure, and
delivery models established by the Legal Aid Act, 1967 continued to operate for almost three decades.

b) Signing of the Memorandum of Understanding

By the 1990s, the soaring costs of legal aid became a significant concern to the Ontario government. As a
result, in 1994, in the context of a deep recession in the province and a growing government deficit, the
Ontario government announced that the funding of legal aid certificates was to be subject to a fixed
annual government contribution. At about the same time, the federal government started to provide its
financial contribution to legal aid in fixed amounts unrelated to the actual need in the provinces and
territories, and withdrew its funding of certain areas of law, such as refugee matters, as well as Northern
legal services administered by the Nishnawbe-Aski Legal Services Corporation.

30
The result of these financial factors was the Memorandum of Understanding (MOU) entered into by the
Law Society and the provincial government in September 1994. The MOU required the Ontario Legal
Aid Plan (OLAP), for the first time since its inception, to operate within a predetermined funding level
for certificates. The MOU also set out a four-year funding commitment.

c) Implementation of the MOU

In order to implement the new funding restrictions required by the MOU, the OLAP imposed service cuts
in 1994, 1995, and 1996, which resulted in 150,000 fewer certificates being issued per year. The
availability of legal aid services for non-family civil law was severely restricted. In order to effect further
reductions, prioritization of the types of services offered was also undertaken in the areas of family law,
criminal law and refugee and immigration law. A justice strategy was also established to help lower legal
aid costs, which included diversion programs and early Crown charge screening. In 1996 the Law Society
eliminated all block-fee billing in criminal matters, introduced maximum billing caps on certificates, and
implemented stricter client financial eligibility requirements.

II. THE ESTABLISHMENT OF THE 1997 LEGAL AID REVIEW

On December 13, 1996, then-Attorney General Charles Harnick, established the Ontario Legal Aid
Review ("the Review"), an independent task force to be chaired by Professor John McCamus, former
Dean of Osgoode Hall Law School. This was the first comprehensive review of Ontario's legal aid system
since the modern program's inception. 1 The mandate of the Review was to undertake a thorough analysis
of the existing legal aid system in the province, and to make recommendations as to its future direction. It
was directed to study the implications of capped funding on the system's future design, administration and
governance, and to identify the prevailing common legal needs of low-income Ontarians. To accomplish
this, the Review distributed a consultation paper, and received 170 written submissions in response. In
addition, a number of background papers were commissioned to examine current unmet legal needs. 2
The result of the Review was the publication of the 1997 Report, "A Blueprint for Publicly Funded Legal
Services" ("the McCamus Report"). The McCamus Report laid the groundwork for the Legal Aid
Services Act, 1998 and the establishment of Legal Aid Ontario. The Report formulated its overall findings
in ninety-two recommendations for reforming Ontario's legal aid system.

III. THE 1997 LEGAL AID REVIEW'S FINDINGS

a) The Legal Needs of Low-Income Ontarians

The Review found that the lives of low-income people are regulated in ways that are overarching,
complex, intersecting, and intrusive. 3 As many of the submissions to the Review iterated, low-income
people require access to legal representation when the law intrudes in their lives in extreme ways, i.e.
child apprehension, incarceration, or involuntary treatment. The Review reached several key conclusions
regarding the legal needs of low-income Ontarians, including:

• low-income individuals have legal needs which differ from those with resources;
• factors which may contribute to a person's financial need, such as disability, age, or race,
can result in specific legal needs; and
• the allocation of legal aid resources should rest on the development of mechanisms to
assess the particular and changing legal needs of low-income Ontarians.

IV. A FRAMEWORK FOR SETTING PRIORITIES FOR LEGAL AID SERVICES


31
a) The State's Obligation to Provide Legal Aid

The Report noted that a legal aid system operating within a capped budget must undertake priority-setting
exercises in order to determine how the budget will be allocated between the competing claims.

The McCamus Report examined normative justifications for providing legal aid, and determined that the
state has an obligation in various circumstances to facilitate access to law. Legal aid is one, but not the
only, means for meeting that obligation. The Report also set out the state's legal obligations under the
Canadian Charter of Rights and Freedoms, as well as the Young Offenders Act 4, the Criminal Code, and
the International Covenant on Civil and Political Rights, to provide legal counsel in certain contexts. The
Report found that the Charter may require that areas of law other than criminal law be funded by legal aid
in the future.

b) Priority Setting: the Recent Experience

At the time the Review was undertaken, priority-setting for the legal aid system was done in two separate
contexts: certificates and clinics. For the certificate side of the system, the Legal Aid Committee, subject
to review by the Law Society, was responsible for setting the priorities of the legal aid plan. Following
the signing of the MOU, a prioritization of services in the areas of criminal law, family law and
immigration and refugee law was done in order to adjust to the capped funding. For the clinic system,
each clinic's community board sets its priorities. The clinics have operated within capped budgets since
their inception, and consequently had developed a great deal of experience with priority-setting and
adjusting their services in response to demand.

c) Towards a New Model for Priority-Setting

The Report foresaw that priority-setting would continue to be a major focus for those overseeing the legal
aid system if the system were to continue to operate within a capped budget. The Report recommended
that the following eight themes be considered when the legal aid system engages in priority-setting:

• The importance of consultation and environmental scanning of needs;


• The importance of responding to a broad range of needs;
• The need for strategic oversight at the system-wide level coupled with responsiveness to
local conditions;
• The limitations of the "risk of incarceration test" in setting service priorities;
• The importance of integrating delivery-model issues within the priority-setting process;
• The importance of focusing the priority-setting debate on client impact;
• The importance of using resources strategically to facilitate access to law; and
• The importance of priority-setting being subject to revision in light of experience in an
evolving social and legal environment.

d) The Legal Aid System in Context

A central tenet of the McCamus Report is that the legal aid system must be regarded as an integral
component of the overall justice system in Ontario. The Report emphasized that in envisioning an
improved model for the delivery of legal aid the existing justice system should not be viewed as static.

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The Report found that legal aid has a role to play in instigating and propelling legal reform. The Report
discusses the proposed changes in criminal, family, refugee and civil law that came out of the research
papers commissioned for the Review. 5 One incentive for such reforms to be implemented is the cost-
savings that would accrue to legal aid as a result. The Report concluded that for legal reform efforts to be
successful, there must be an ongoing focus on incremental change through continuous design,
experimentation, implementation, and evaluation exercises. 6

e) The Choice of Delivery Models for Legal Aid

The McCamus Report identified the need for the future legal aid governance body to be willing to explore
and experiment with a wide variety of delivery models.

The Report made the case for greater diversity and creativity in the delivery models of legal aid services
in Ontario, taking into account the specific needs of individual clients, the types of legal services being
provided, and the geographic locations being served. The ultimate goal of this approach is to obtain the
maximum benefit from the finite resources available. Several principles were identified to guide the
design of the new system, including:

• the need to provide a greater mix of legal services 7 to help reduce the divide between full
legal representation and no legal representation, and thereby assist a greater percentage of the
public with their legal problems;
• delivery models should be reflective of the legal, geographic and client context;
• it can be beneficial for the delivery models to be in competition with one another;
• quality considerations must always be kept in mind; and
• independent evaluations of these programs should be conducted intermittently.

V. A BLUEPRINT FOR LEGAL AID SERVICES IN ONTARIO

a) Renewing the Commitment to Legal Aid

The McCamus Report emphasized that the successful implementation of any reforms to the legal aid
system would be predicated on the ability of the government and the legal aid system to establish shared
goals pertaining to the fundamental purpose of legal aid. One such goal identified by the Report is access
to justice. That is, the fundamental objective of the legal aid system should be to promote equal access to
justice by identifying and meeting the diverse legal needs of qualifying individuals and communities. It
was also thought necessary for there to be a commitment by the government to the principles of
independence, funding and systemic reform in relation to the legal aid system.

The legal aid system itself needs to have a special commitment to the following areas: priority setting in a
needs-based system, quality of service, cost-effectiveness and accountability, service delivery models,
law reform, diverse needs, and governance.

b) Governance

One of the key considerations of the Review was whether the Law Society should continue to have a
governing role in the administration of Ontario's legal aid plan. The Report considered the governance of
legal aid in other jurisdictions in Canada, as well as the United States, Australia and the United Kingdom.
The Report outlined the following goals and objectives in making a case for change in governance of the
legal aid plan in Ontario: independence; accountability for efficient use of public funds; obtaining
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adequate resources for legal aid; ability to deliver quality services in a broad range of areas of the law;
capacity to promote confidence in the legal aid system; responsiveness to client needs; efficient
governance; coordinated management of the entire legal aid system; and innovation and experimentation.
The Report recognized that it is difficult for the Law Society to insulate itself from the interests of the
legal profession. The Law Society would thus face special challenges in implementing reforms to the
judicare system.

Taking all of the above-listed goals into consideration, the McCamus Report recommended that the
governance of the legal aid system be transferred from the Law Society to an independent statutory
agency. This new agency could more effectively: understand, assess and respond to the broad range of
legal needs of low-income Ontarians; integrate management and financial expertise at the highest level of
governance; conduct a greater level of experimentation and innovation with delivery models; coordinate
the certificate system and clinic system; and promote confidence in the legal aid system. The Report
recommended that the mandate of the agency be set out in the enabling legislation, which should require
that the agency provide services in the areas of criminal law, family law, immigration and refugee law,
and poverty law.

The government's primary role in relation to the new agency would be to appoint its members and to
assume political responsibility for defining the agency's mandate. The government would also need to
ensure adequate multi-year funding. The government must also, however, allow the agency to determine
its own method of priority-setting and service delivery in providing the mandated services.

The Report outlined a strategy to implement the proposed governance changes, including establishing the
enabling legislation, identifying the appropriate individuals to serve on the inaugural board, and working
with the Law Society to ensure a smooth transfer to the new administration.

The Report concludes with a summary of its ninety-two recommendations.

1. The previous study was the Report of the Joint Committee on Legal Aid, tabled in April
1965.
2. Background Papers:
1. Current Utilization Patterns and Unmet Legal Needs by William A. Bogart, Colin
Meredith and Danielle Chandler
2. Special Legal Needs of People with Mental Disabilities by Patti Bregman
3. Legal Aid, Aboriginal People, and the Legal Problems Faced by Persons of
Aboriginal Descent in Northern Ontario by Donald Auger
4. Legal Aid Needs of Aboriginal People in Urban Areas and on Southern Reserves
by Jonathan Rudin
5. Normative Justifications for the Provision of Legal Aid by David Dyzenhaus
6. The Legal and Constitutional Requirements for Legal Aid by Nathalie Des Rosiers
7. Legal Aid Delivery Models by Susan Charendoff, Mark Leach and Tamara Levy
8. An Economic Analysis of Legal Aid Delivery Mechanisms by Hamish Stewart
9. Quality Control and Performance Measures by Sandra Wain
10. Legal Aid and Criminal Justice in Ontario by Alan N. Young
11. The Provision of Legal Aid Services Under the Young Offenders Act by Ron Levi

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12. Case Study in the Provision of Legal Aid: Family Law by Brenda Cossman and
Carol Rogerson
13. Poverty Law-A Case Study by Janet Mosher
14. Report on Immigration and Refugee Law by Audrey Macklin
15. Governance of Legal Aid Schemes by Martin L. Friedland
A Cross-Jurisdictional Study of Legal Aid: Governance, Coverage, Eligibility, Financing, and Delivery in
Canada, England and Wales, Australia, New Zealand, and

Section III: THE STATUTORY FRAMEWORK FOR LEGAL AID IN ONTARIO

In response to the McCamus Report, the government of Ontario enacted legislation creating a new
framework for the provision of legal aid services in the province.

The stated purpose of the Legal Aid Services Act, 1998, is to promote access to justice for low-income
Ontarians by providing consistently high quality legal aid services in a cost-effective manner, by
encouraging flexibility and innovation in the provision of legal aid services while recognizing current
successful mechanisms, and by recognizing the diverse legal needs of low-income individuals and
disadvantaged communities.

I. GOVERNANCE

As recommended in the McCamus Report, the Act created a new, independent agency to provide legal aid
services across the province.

The Legal Aid Services Act, 1998, establishes Legal Aid Ontario as an independent not-for-profit
statutory corporation. LAO's mandate is to create and administer a cost-effective and efficient system for
providing high quality legal aid services to low-income Ontarians.

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The Act establishes a board of directors for Legal Aid Ontario, responsible for the governance and
management of the corporation. The board establishes operational policy and develops strategic plans
through the assessment of current and future needs for legal aid services. The board also develops
performance standards and quality control mechanisms.

Membership of the board largely follows the recommendations in the McCamus Report. The board
consists of the chair and ten regular members, appointed by the Attorney General, five from a list of
persons recommended by the Law Society of Upper Canada. The chair is chosen from a list
recommended by a committee established jointly by the Law Society and the Attorney General.

In selecting members, the Attorney General must ensure that the board has knowledge and experience in:

• business management;
• the operation of courts and tribunals;
• the operation of clinics; and
• the special legal needs and attendant social circumstances of low-income individuals and
disadvantaged communities.

The Attorney General must also ensure geographic diversity, and must appoint a majority of non-lawyers.

Board members are appointed for two- or three-year terms, and may be reappointed. To protect the
corporation's independence, board members' appointments may not be terminated except for cause.

The Act requires the board to establish an audit committee and a clinic committee, composed of board
members. In addition, the board is required to establish three advisory committees, in the areas of
criminal law, family law and clinic law. The board also appoints a president, who is chief executive
officer of the corporation and who is responsible for implementing the policies of the board. The
president is a non-voting member of the board.

II. LEGAL AID SERVICES

The Legal Aid Services Act, 1998 gives LAO broad authority in the design and administration of the legal
aid system in Ontario. This independence allows for flexibility and innovation in the design of legal
services, and allows LAO to adapt services in recognition of the diversity of special needs in the
province.

In designing the legal aid program, LAO is required to:

• determine the needs of low-income individuals and disadvantaged communities in Ontario;


• establish priorities in terms of areas of law and types of proceedings; and
• determine the appropriate means of providing legal aid services in each area of law or type
of proceeding.

The Act also requires LAO to have regard to the fact that the private bar is the foundation for the
provision of legal aid services in the areas of criminal law and family law, and that clinics are the
foundation for the provision of legal aid services in the area of poverty law.

36
Section 13 of the Act specifies that LAO must provide legal aid services in the areas of criminal law,
family law, clinic law and mental health law. LAO may cover other areas of civil law, subject to the
government's power to specifically exclude an area of civil law or type of civil proceeding if it chooses.

Within those limits, LAO is authorized to provide legal aid services by any method it considers
appropriate, including, but not limited to:

• issuing certificates to lawyers and service providers;


• entering into block agreements with lawyers or groups of lawyers for the provision of
services;
• funding clinics;
• operating legal aid staff offices;
• funding Aboriginal legal services corporations;
• providing duty counsel;
• offering public legal education;
• providing summary assistance; and
• authorizing alternative dispute resolution services.

This mixed model allows LAO to tailor its services to the needs of the individuals and communities being
served and to the funding available to the corporation.

a) Duty Counsel

The McCamus Report recommended a broad range of services in the provision of criminal law, with the
use of duty counsel expanded for situations involving limited preparation. The Report also recommended
increasing the use of duty counsel in family law cases.

Duty counsel lawyers assist people who are unrepresented in criminal, family and youth court. They also
provide advice and assistance on legal matters outside the court system and attend fly-in courts in remote
northern areas.

The Act allows LAO to employ duty counsel and to enter into contracts with the private bar to provide
duty counsel services. Currently, LAO has a network of over 130 staff lawyers and 1700 private lawyers
providing duty counsel services.

The regulations establish classes of duty counsel and list their functions, including the assistance they
may provide at different stages of a proceeding. The regulations also require duty counsel to make reports
to LAO and to obtain approval before representing by certificate a person previously represented through
the duty counsel program.

b) Certificate Program

Under the certificate program, an individual is assessed for financial eligibility through one of the 51
legal aid offices in the province. If eligible, the individual can take the certificate to any lawyer who
accepts legal aid cases. Certificate lawyers are paid according to the tariff prescribed by regulation.

37
The Act provides a governance mechanism for the certificate program. The Act requires LAO's board to
divide the province into designated areas, then to establish an area committee and appoint an area director
for each area.

The area director selects panels of lawyers and other service providers who may accept legal aid
certificates. The area director also reviews applications for certificates. An application must meet
statutory and regulatory requirements, including financial eligibility, along with the policy and priority
requirements of the board. The area director may attach conditions to a certificate, and may amend or
cancel a certificate at any time.

The area director must refer some decisions to the area committee, such as requests for certificates to
cover an appeal. A certificate for legal aid services for a group of individuals or for an individual who is
not ordinarily resident in Ontario requires the approval of LAO's president.

The area committee is responsible for determining whether to issue a certificate in cases referred to it by
the area director, hearing appeals from the area director's refusal to grant a certificate (with further appeal
to a person designated by the board), and other functions as assigned by the board.

c) Staff Offices

The McCamus Report recommended establishing a pilot program of staff offices to provide legal aid
services in the areas of criminal law and family law. The legislation enables the creation of staff offices,
and currently there are three criminal law, three family law and one refugee law staff offices in the
province. The family law and refugee law offices have become permanent, following positive evaluations
of the pilot projects. The evaluation of the criminal law offices was just recently completed.

d) Clinics

As recommended by the McCamus Report, clinics continue to be the foundation for the provision of
poverty law legal aid services in the province. Clinics are independent, non-profit organizations that
provide services in areas such as social benefits, housing, and worker's compensation.

The Act grants LAO the authority to provide funding to clinics for up to three years at a time. In deciding
whether to fund a clinic, LAO may consider matters such as the legal needs of the individuals or
community served, the cost-effectiveness of providing services through a clinic, the past performance of
an individual clinic, and the legal needs of other communities also seeking funding. Funding must comply
with government transfer payment accountability requirements, and LAO may impose any other terms on
the funding that it considers appropriate.

Under the Act, LAO designates a person to consider applications for funding by clinics. This person may
make a decision or may refer the matter to the clinic committee of the board of directors. An applicant
may request that the clinic committee reconsider a decision.

LAO is required to monitor the operation of a clinic. Clinics must provide LAO with audited financial
statements, a summary of legal aid services provided, a summary of complaints received by the clinic and
any other information requested. LAO's board of directors may reduce or suspend clinic funding if it
believes a clinic is not complying with the Act or with the terms and conditions of the funding.

The board of directors of a funded clinic is responsible for ensuring that the clinic complies with the Act,
the terms and conditions attached to the funding, and the operational standards established by LAO. The

38
clinic board must also ensure that the clinic provides clinic law legal aid services in accordance with the
needs of its community. There are currently 80 clinics in Ontario.

III. FUNDING

The Act establishes a funding mechanism that essentially follows the recommendations of the McCamus
Report, with funding provided on a rolling, three-year basis and legislated reporting responsibilities.

Under the Act, LAO must submit its annual budget for the next fiscal year to the Attorney General for
approval, and it must contain projected operating budgets for the following two years. Once the Attorney
General approves the budget, it is included in the estimated budget of the Ministry of the Attorney
General.

Under the legislation, LAO is permitted to enter into arrangements with other entities to receive
additional funding. LAO currently has additional funding arrangements with the federal government and
with the Law Foundation of Ontario.

A small amount of funding also comes from client contributions. The Act allows LAO to require an
applicant to agree to contribute toward the cost of legal services to be provided. A determination of an
applicant's ability to contribute is made in accordance with the Act.

LAO is also authorized by the Act to deduct the cost of legal aid services from any amount recovered by
the applicant in respect of the matter for which legal aid services were provided. The regulations establish
mechanisms for determining the appropriate amount to be paid to LAO.

IV. ACCOUNTABILITY

While the Act establishes LAO as an independent corporation, the government remains accountable for
the use of public funds. To this end, the Act establishes some restrictions on LAO's financial
management. The Act includes criteria for the choice of banks and investment agents and requires
government approval of real property transactions. The government also retains the power to regulate the
borrowing and investment powers of the board.

LAO is required to maintain a contingency reserve fund, which the government prescribes through
regulation. LAO must notify the Attorney General of each withdrawal of capital from the fund, and must
obtain approval from the Attorney General for any withdrawal over $5,000,000.

a) Reporting Requirements

LAO must submit annual reports to the government that contain annual financial statements audited by
the Auditor General, a statement on the nature and amount of legal aid provided, a statement on how
LAO has met its performance standards and any other information the Attorney General may request.

The Attorney General and LAO must enter into a memorandum of understanding every five years, which
requires the corporation to be accountable for the expenditure of public funds and for meeting its mandate
by providing the Attorney General with:

• annual business plans;


• multi-year strategic plans;
• an annual statement of LAO's policies and priorities for legal aid services;
39
• an annual statement of LAO's investment policies and goals;
• meeting agendas;
• performance standards; and
• any other matter required by the government.

LAO also must provide the Attorney General with quarterly financial reports on its contingency reserve
fund.

V. GOVERNMENT ROLE

In addition to the financial oversight noted above, the Act preserves government authority to ensure
responsible management of LAO through regulations on the scope of legal aid and the authority to
appoint a temporary administrator.

a) Regulations

Under the Act, the government retains authority to make regulations on a number of substantive matters,
including financial eligibility requirements for legal aid and the tariff of fees and disbursements. In
addition, the government may control the overall scope of legal aid by excluding areas of civil law or
types of cases.

i) Financial eligibility

The government and LAO jointly developed the financial criteria for legal aid, which are incorporated
into government regulation. Under the regulation, LAO examines four factors:

• an applicant's family unit, to identify which family members should be included in a


financial assessment;
• assets available to the family unit;
• income of the family unit; and
• a comparison of income and assets to the necessary budgetary requirements of the family
unit.

ii) Tariff

The tariff of fees and disbursements is provided in a series of schedules to the regulations under the Act.
The schedules list the legal services required for each type of case and indicate the maximum number of
hours a lawyer may bill for each service.

The schedules must be read in conjunction with a series of notes in the regulation, which address
exceptional circumstances, such as representation of more than one client, or the use of junior counsel.

The tariff has been reviewed and increased several times since the legislation was originally enacted. The
Act and regulations do not, however, provide a mechanism for regular review of the tariff.

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iii) Scope of legal aid

The government has not restricted the scope of legal aid beyond the prohibitions listed in the Act. The
Act prohibits the provision of legal aid services in:

• defamation actions;
• relator actions;
• proceedings for the recovery of a penalty where the proceedings may be taken by any
person and the penalty in whole or in part may be payable to the person instituting the
proceedings; and
• proceedings relating to elections.

b) Temporary Administrator

If the Attorney General loses confidence in the board's ability to fulfill its mandate, the government
retains the option of temporarily removing authority for the corporation from its board of directors. The
Attorney General may apply to the Superior Court of Justice for an order appointing an administrator to
take over administration of LAO. The court may make the order if it is satisfied that the appointment is in
the public interest and is needed to ensure the continued and effective provision of legal aid services.

The Attorney General should have no problem with his federal counterparts and I suspect that he
will be commended as they are all looking out for the people and the taxpayer

Section IV: NOTABLE ACHIEVEMENTS BY LAO

I. MANAGING THE TRANSITION

In April 1999, Legal Aid Ontario assumed responsibility for administering legal aid services from the
Law Society of Upper Canada. Over the last eight years, LAO has matured as an organization, and has
demonstrated its ability to manage the legal aid system that it inherited. I do not wish to under-emphasise
the significant administrative challenges LAO faced in the early years, and it is to be commended for
keeping the system on a stable footing during this period.

The transition from two, separately managed programs (the certificate and clinic programs) within the
Law Society into a single, publicly accountable non-profit corporation was a challenging and complex
task. The Honourable Sidney B. Linden, as the first Chair, and Angela Longo, then President and CEO,
established a board of directors with appropriate subcommittees, developed governance procedures,
revised the finance structure, and formalized the agency relationship with the Ministry of the Attorney
General, including the implementation of legislated budgeting, business planning, and reporting

41
requirements. They also implemented a multi-year technological update project to replace LAO's
outdated and multiple technology systems with a single, more flexible, integrated system.

LAO acknowledges that it has been more innovative over the years in its internal administration than in
external service delivery. Nevertheless, there have been some notable achievements in several areas,
which I have grouped into the following categories: Service Delivery; System Improvements for Clients;
System Improvements for Service Providers; and Quality Assurance.

II. SERVICE DELIVERY

There has been very little variation in LAO's funding allocations to its service delivery programs since
1999: the percentage of funding for certificates, clinics, research and innovation has remained the same;
the percentage of funding for administration has gone down slightly; and the percentage of funding to
duty counsel has increased slightly.

That is about right, as lawyers act on behalf of their clients and their take
behalf.
It was purportedly $333.6 million 2006-07 and most likely a lot more last
year and the lawyers are looking for a4250% raise and of course business is
really going to pick up as the economic crisis picks up steam.
*A chart showing the breakdown of these expenditures, in constant dollars, is attached as an appendix to
this section.

The certificate system has remained stable during this period, with 109,101 certificates issued in 2006-07,
compared with 107,697 in 1999-00. It is the delivery of services by full-time employed staff that has been
the most significant change in the past eight years. The complement of lawyers in staff offices has risen
from 16 in 1999-00 to 26 in 2006-07, the number of staff duty counsel has risen dramatically, from 36 to
136, and the total number of clinic staff lawyers rose from 176 to 242.

a) Staff Offices

As was envisioned by the McCamus Report, the Legal Aid Ontario staff offices have provided LAO with
an opportunity to experiment with new ways of delivering legal aid services. LAO currently has seven
staff offices, one for refugee law, three for family law and three for criminal law.

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i) Refugee Law Office

The Refugee Law Office (RLO) was started as a pilot project in 1994, with a dual mandate to contribute
to the overall quality of refugee legal aid and to operate cost-effectively. The RLO represents refugee
claimants who have a legal aid certificate, at refugee determination hearings before the Immigration and
Refugee Board (IRB). If the hearing is not successful, the RLO can seek a review of the IRB's decision
with an application to the Federal Court of Canada. RLO staff are multi-lingual to help better serve the
needs of their clientele. In the RLO the staff speak English, French, Spanish, Farsi (Persian), Azari,
Turkish, Amharic, Arabic, Albanian, Italian and Tigrigna.

A 1998 evaluation of the pilot project concluded that the RLO provides consistently high quality services,
but that the cost-per-case was higher than for judicare. Recommendations to improve cost-effectiveness
were implemented, and the RLO was evaluated again in 2000-01. The RLO's caseload in 1999-00 was
280 cases. The second review found that cost-effectiveness had improved, and the RLO was made
permanent in 2002. The RLO is well regarded by the private refugee law bar. The Refugee Lawyers'
Association advocated in their submission to me that the RLO receive funding to take on additional
responsibilities. The RLO has 6 lawyers and 4 paralegals currently on staff, and in 2006-07 the office
accepted 157 legal aid certificates.

ii) Family Law Offices

In 1999, Legal Aid Ontario initiated a pilot project of three Family Law Offices 1 (FLOs) to address the
service gaps created by the funding cuts of the 1990s. FLOs were opened in Toronto, Ottawa and
Thunder Bay. In 2002 the three offices had an average caseload of 336 active files per office. An
evaluation of the FLOs released in August 2002 concluded that the quality of service provided was high,
but that in order to remain cost-effective, the FLOs would have to maintain sufficient caseloads (i.e. an
influx of new cases), and would have to restrict their range (e.g. not provide uncontested divorces) and
amount of services to those provided by private lawyers working on certificate. The three FLOs currently
employ 13 lawyers and 11 paralegals. In 2006-07 the FLOs accepted a total of 865 legal aid certificates.

iii) Criminal Law Offices

In 2004, the federal government's Investment Fund for Criminal Aid Renewal provided funding for Legal
Aid Ontario's Criminal Law Office pilot project. LAO established three Criminal Law Offices (CLOs) as
pilot projects in 2004-05, located in Brampton, Barrie and Ottawa. The CLOs were designed to provide a
cost-effective way of addressing the needs of clients in specialized service areas such as mental health,
youth justice and Aboriginal law. They provide a range of services using a mix of certificates, staff
lawyers, duty counsel and partnerships with private lawyers. CLOs also serve clients who do not receive
legal aid certificates because their matter is unlikely to result in incarceration, but who face serious
consequences from conviction. They also provide representation in matters where there is a significant
public interest affecting a particular community. The CLOs therefore fill gaps in client services and
expand service options for clients. The three offices are currently staffed with 7 lawyers and 3 paralegals,
and in 2006-07 they accepted a total of 157 legal aid certificates. The CLOs caseloads have continued to
grow, with the Brampton and Barrie offices carrying higher caseloads than the Ottawa office.

The CLOs have been evaluated by a series of three reports, the last of which was recently concluded.
Generally, the evaluations have found that although the CLOs have lower fees billed for each individual
case, the overall total cost of running the offices, including the costs of outreach and administrative
overhead, as well as the costs of handling specific cases, is higher on a per-case basis than the fees billed
by private lawyers on a comparable certificate case. There clearly continues to be a considerable shortfall
between the billings accrued for case-specific activity and the total expenditures on the CLOs. When the
44
value of various non-case specific services is added, the shortfall between the computed value for services
and total expenditures is narrowed, but not appreciably. The total value of services provided by the CLOs
has not in any year exceeded two-thirds of the expenditures of the offices. These reports demonstrate the
difficulty - under the existing tariff - of a public or private office dedicated solely to providing legal aid
services to this clientele being able to generate enough fees to cover expenditures.

b) Duty Counsel

Duty counsel are lawyers who provide legal advice, representation, and other legal assistance to
unrepresented litigants during family and criminal court appearances. Historically, duty counsel services
were provided by panels of per diem lawyers (i.e., lawyers in private practice who are paid an hourly rate
and work on a scheduled rotation) in most courts across the province. Duty counsel services include
conducting show cause hearings and assisting in guilty pleas and sentencing in criminal courts, arguing
interim motions and attending case conferences in family courts, obtaining adjournments, preparing and
reviewing court documents, negotiating settlements and consent orders. Duty counsel also provide
information on how to apply for a legal aid certificate or how to appeal the refusal of a legal aid
certificate, and in some smaller locations, will also take legal aid applications. Duty counsel do not
provide representation at trial or participate in trial preparation conferences. Family court duty counsel
cannot assist with issues of property or divorce; criminal court duty counsel cannot assist in guilty pleas
where a penitentiary sentence is foreseeable.

Most duty counsel services offered at family court require a financial eligibility test to be met except for
summary advice and simple adjournments. In criminal court, the financial eligibility test is required only
when the potential client is an adult who is not in custody who wishes to enter a guilty plea.

The McCamus Report recommended that the role of duty counsel in both criminal and family courts be
expanded, and LAO has quadrupled the complement of staff duty counsel over the past eight years. In
1999, LAO implemented Family Law Expanded Duty Counsel (EDC) pilot projects in London, Hamilton
and Oshawa. The EDC offices use a mix of private and staff lawyers, including full-time supervisory duty
counsel, to provide continuous services to clients, including representation in court, maintaining files,
drafting documents, and developing strategies to resolve cases early without court hearings. These offices
allow duty counsel to focus their time on clients' cases while support staff provide extensive service
assisting with client documents and files. Criminal EDCs were also established in Brampton and
Newmarket. The early success of these pilots resulted in the expansion of full-time supervisory duty
counsel and Duty Counsel Offices (DCOs) to a total of 65 locations (including both family and criminal
law sites).

Supervisory duty counsel supervise and co-ordinate the services and training of per diem duty counsel,
act as a liaison between the court and LAO, and fulfill the normal functions of a duty counsel in court.
This initiative has led to the development of a more organized and efficient duty counsel infrastructure
and has enhanced the quality of services provided to clients. In 2006-07 the duty counsel program
provided a total of 764,675 assists throughout Ontario.

LAO has made DCOs the preferred model for providing duty counsel services. Under the supervision of a
supervisory duty counsel, services are provided by a mix of per diem lawyers, staff duty counsel (i.e. full-
time employees of LAO), and in locations where demand warrants, administrative or paralegal support. A
2002 evaluation of the Family EDC pilots found that there were fewer adjournments and more
settlements at earlier stages in the proceedings. A multi-year evaluation of a sample of the criminal law
DCOs (in Brampton, Newmarket, Milton, Hamilton and North York) is currently underway. Preliminary
findings indicate that the supervisory duty counsel has a key role to play in ensuring the offices' success;
that having full-time staff lawyers as well as staff paralegals has a positive impact on quality of service

45
and cost-effectiveness; and that in order to maximize cost-effectiveness, staff lawyers should be used as
much as possible in place of per diem lawyers.

In addition to the DCO program, LAO has established an advice lawyer program to provide family law
services in Family Law Information Centres (FLICs) operated by the Ontario Ministry of the Attorney
General, and in numerous other community centres accessible to clients. Advice lawyers provide out of
court assistance to unrepresented persons in approximately 130 locations across the province. Generally,
they provide legal advice, draft and/or review legal documents and provide some negotiation services for
financially eligible clients.

LAO has also developed specialized duty counsel for Domestic Violence, Mental Health, Gladue and
Drug Treatment Courts. These specialized duty counsel are experienced in the issues and procedures
unique to these courts.

c) Clinics

LAO has expanded the clinic system to ensure community legal clinic coverage in all areas of the
province, as recommended by the McCamus Report. This expansion brings the total number of clinics to
80, including 18 specialty clinics offering services in a particular area of law or in the legal needs of a
specific client group. New clinics includes five general service clinics, two new French language clinics,
two new specialty clinics dealing with landlord-tenant and income security law, and one new
ethno/cultural clinic for the South Asian community.

d) Pilot Projects for Aboriginal People

Legal Aid Ontario has begun to experiment with innovative modes of service delivery for Aboriginal
people, in particular, in recognition of their overrepresentation in the justice system. In the summer of
2007, LAO began consultations on a strategy for improving services to Aboriginal clients. At present,
LAO is providing funding for two culturally specific pilot projects.

The Aboriginal Healing Circles pilot project tests the use of traditional Aboriginal community circles to
divert Aboriginal people who have come into conflict with the law away from the mainstream court
system. The healing circles are administered by the Ontario Federation of Indian Friendship Centres, and
funded by LAO, the Ministry of the Attorney General and the Federal Department of Justice. The
program operates out of five Indian Friendship Centres and one reserve community. LAO also provides
funding for the Nishnawbe-Aski Legal Services Corporation to conduct the Talking Together pilot
project, aimed at testing the use of community circle principles to deal with the higher numbers of child
protection cases in northern Ontario Aboriginal communities. The program uses traditional Aboriginal
restorative justice principles, together with court processes, to reduce the number of Aboriginal children
who are removed from their communities by increasing the capacity of these communities to minimize
the risks to children and resolve protection issues.

III. SYSTEM IMPROVEMENTS FOR CLIENTS

LAO has examined ways to make applications for legal aid and access to the legal aid system easier for
potential clients. The Homeless Access and Referral Partnership Project (HARP) provides access clinics
at five drop-ins and community centres that are frequently used by homeless people. Homeless
individuals can apply to the legal aid certificate program, or be referred to a clinic or other appropriate
service depending on their situation.

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LAO has also introduced the use of video technology to take legal aid applications from clients who are
in custody. As a result, clients can retain and instruct a lawyer immediately and get the matter before the
courts faster. Ninety-eight per cent of clients have expressed satisfaction with this service. Video
technology is now used in 12 locations across the province. It has provided faster access to LAO services,
improved services and reduced costs.

Most recently, LAO has begun a pilot project to dramatically expand the locations where an individual
may apply for a legal aid certificate. LAO has assessed its financial and legal requirements for certificates
and developed a profile of the applications that are very likely to be approved. For example, individuals
who participate in Ontario Works or the Ontario Disability Support Program are always financially
eligible; clients whose case involves a child protection matter, a refugee claim or a criminal charge with a
likelihood of jail time are always legally eligible. Based on this profile, LAO restructured and simplified
its online application to enable people other than LAO's applications assessment officers to complete the
process. The goal of the Simplified Online Application Portal (SOAP) pilot is to enable lawyers and
community agency staff to complete a client's application over the Internet. If the client meets the clear
requirements in the simplified application, they will be provided with an immediate online confirmation
of eligibility for a legal aid certificate. This will allow their lawyer to start work on their case as soon as
they receive this confirmation, without the client ever having to attend in person at a legal aid office.
LAO estimates that 40 per cent of its clients benefit from this simplified process.

IV. SYSTEM IMPROVEMENTS FOR SERVICE PROVIDERS

LAO has developed a number of technological innovations that reduce administrative burdens both for
certificate lawyers and for the system itself. Technology has enabled improvements in billing and
payment, in sharing legal research, and in incarcerated client meetings.

The Legal Aid Online system allows certificate lawyers to submit their accounts online and also allows
for real-time information sharing between LAO offices. The result is that lawyers find the system more
efficient, and clients are more efficiently served by having their file follow them through the system. As
of December 2006, 84 per cent of certificate accounts and 94 per cent of duty counsel accounts were
billed online. LAO also established direct deposit for lawyers doing legal aid work. The ease and speed
with which lawyers are paid by LAO provides an additional incentive for them to do legal aid work.

LAO's legal research department provides fully electronic support and research assistance to lawyers who
do legal aid work. LAO LAW is the only Web-based legal aid research service of its kind in Canada. It
has been expanded to include a monthly netletter, a weekly summary of case law targeted to specific
areas of the law and a priority telephone hotline service for duty counsel lawyers.

Access: Defence is an initiative developed by the Video Remand and Bail Project of the Ministry of the
Attorney General and the Ministry of Community Safety and Correctional Services, and supported by
Legal Aid Ontario. The project is a new teleconferencing system that gives lawyers the ability to book
teleconferences with their in-custody clients at select correctional facilities in Ontario. Lawyers can call
from anywhere, seven days a week to talk to in-custody clients, avoiding the time and costs associated
with travelling to correctional facilities.

V. QUALITY ASSURANCE

Maintaining the high quality of legal aid services in the province is a key part of LAO's statutory
mandate. LAO has developed a number of measures to improve quality.

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a) Quality Service Office

The Quality Service Office (QSO) was established in 2003 to support excellence in providing high-
quality legal aid service to clients. The QSO develops quality standards, assists in developing
performance measures, and prepares orientation material for LAO's programs.

b) Client Service Measures

LAO implemented and maintained client service measures reporting for LAO and clinic staff. In 2005-06,
LAO adopted the "Common Measurements Tool", a standardized survey instrument developed by the
Institute for Citizen-Centred Service and widely used for benchmarking in publicly funded programs at
the municipal, provincial and federal level.

c) Minimum Panel Standards

LAO has worked with the bar and other key stakeholders to develop minimum standards for legal aid
panel membership, along with appropriate supports for lawyers who do legal aid work. Standards have
been implemented for refugee, criminal, family and mental health law legal aid panels, as well as for duty
counsel. LAO ensures that continuing legal education (a requirement of the minimum standards) is
available and accessible to panel members.

d) Mentoring Program

LAO implemented a new mentoring program for lawyers in 2006. Lawyers can request one-on-one
mentoring or can submit a mentoring request online for a response within 48 hours.

e) Best Practices

LAO developed best practices tools and templates for clinics and student legal aid service societies to
assist them in developing policies that meet their individual needs while improving the quality of their
services.

f) Complaints Process

LAO has developed complaints process standards for clinics, to ensure that all complaints are responded
to appropriately. LAO also has a Complaints Office to address complaints about its own services or the
services of a lawyer under a legal aid certificate. The LAO complaints process provides an opportunity
for a review by LAO's General Counsel.

SECTION IV - APPENDIX

Back to report.

LAO EXPENDITURES (000'S) IN 2007 DOLLARS

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Certificate Program 1999-00 2006-07

Criminal $74,097 $99,141

Family $40,674 $50,968

Immigration and Refugee $12,009 $16,866

Other Civil $5,949 $6,229

Settlement Conferences $270 $133

$132,999 $173,337

Area Office Services $21,450 $24,499

Family Law Office $2,359

Refugee Law Office $819 $893

$22,269 $27,751

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Certificate Program + Area Offices $155,268 $201,088

Duty Counsel

Duty Counsel Fees and Disbursements $22,354 $34,557

Expanded Duty Counsel $612

$22,354 $35,169

Clinic Program and Special Services

Clinic law services $45,566 $58,570

Nishnawbe-Aski allocation $1,524 $1,648

Student Legal Aid Societies $3,025 $2,990

$50,116 $63,208

Service Innovation Projects

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Pilot Projects $2,643 $1,669

Other $91 $1,136

$2,733 $2,804

Service Provider Support

Research Facility $2,328 $2,103

Administration

Provincial Office $27,616 $25,526

Amortization expenses $3,735

Other $2,262

$29,877 $29,261

TOTAL $262,677 $333,634

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Section V: SUMMARY OF SUBMISSIONS AND CONSULTATIONS

I. FUNDING ISSUES

a) Certificate System

i) Hourly rate

All of the organizations representing legal aid certificate lawyers emphasized the inadequacy of hourly
rates and noted that the rates have not kept up with the cost of inflation. The submissions referred to the
recommendation in the Holden-Kaufman Report, commissioned by LAO in 2000, that hourly rates should
range from $105 to $140 in order to ensure accessibility and quality of legal aid services.

Most submissions noted that fewer lawyers are willing to do legal aid work than in the past, with some
submissions stating that it is becoming harder for legal aid clients to find a lawyer. The Criminal
Lawyers' Association (CLA) argued that the low tariff leads to more junior counsel taking on legal aid
cases, which can result in cases taking longer to resolve, particularly for complicated cases such as
criminal megatrials.

Several submissions noted that young lawyers are not going into legal aid work. The low hourly rates as
compared to private practice rates are viewed as a reason for this, in addition to the increased law school
debt that young lawyers face upon graduation. The CLA expressed concern about a lack of students
interested in articling in criminal law, which they believe may also be linked to greater law school debt,
as well as the inability of many criminal lawyers to afford to hire articling students.

The CLA also submitted that the imbalance in pay between Crown counsel and legal aid criminal defence
lawyers, as well as the financial investments that have been made in police and judges, raise concerns
about perceptions of fairness in the justice system. A number of other organizations, including the
Association of Legal Aid Lawyers and the Association of Staff Duty Counsel, also expressed concern
about the inequity in salary between government lawyers and legal aid lawyers, and the perceived
negative impact it has on the legal system.

ii) Tariff review mechanism

Organizations representing legal aid certificate lawyers urged the adoption of a regular tariff review
mechanism in order to avoid past situations where the tariff was increased only in response to a crisis.
Most commonly, submissions recommended that a review happen every three years, with annual
increases in other years tied to an external market indicator, such as the Consumer Price Index.

The Criminal Lawyers' Association stressed the need for a binding review mechanism, on the grounds
that numerous non-binding recommendations for tariff increases have been made in the past with very
little effect. The CLA suggested that factors to be included in tariff reviews could include the ability to

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recruit and retain lawyers in the legal aid system, changes in the economies of practices, and changes in
law, practice and policies.

Because tariff increases could impact on other budgetary considerations, the Association of Community
Legal Clinics of Ontario (ACLCO) argued that any tariff review mechanism should also address the
overall budget of LAO. ACLCO recommended a review that is conducted by an independent party and
that ties increases to an external measure.

In the event that the responsibility for setting the tariff was transferred to LAO, some stakeholders felt
that LAO governance would need to be examined more closely.

iii) Hour allocations

The submissions contain a number of suggested increases to the hours allowed. In criminal law, for
example, changes were urged for bail hearings, Charter applications and pre-trials. Criminal lawyers
indicated that summary conviction matters can take as long to defend as indictable offences, but that
reality is not reflected in the tariff. The African Canadian Legal Clinic supported the use of block fees for
bail hearings.

The Family Lawyers' Association indicated that the introduction of the Family Law Rules has made it
harder to take on a legal aid case with the amount of hours that are allocated. Child protection matters in
particular were identified as being allotted too few hours for the work that is involved. A number of
submissions urged additional hours for lawyers assisting special needs clients, such as those with mental
health issues.

It was argued that the tariff has also failed to respond to certain changes elsewhere in the justice system.
For example, the Ontario Federation of Indian Friendship Centres pointed out that the Gladue case
requires the submission of a complex and culturally sensitive report, but the tariff does not provide for the
writing of such reports.

iv) Big budget cases

The Ontario Bar Association and the County & District Law Presidents' Association (CDLPA) expressed
concern that big budget prosecutions limit the funding for other legal aid cases. Both urged that such
cases be funded outside the legal aid system. If cases are not to be funded outside the system, CDLPA
and the Criminal Lawyers' Association recommended the creation of an elevated hourly rate, to
encourage more senior counsel to take on these complex cases. The Association of Community Legal
Clinics of Ontario commented that if the government is going to fund the prosecution of guns and gangs
cases, the defence of such cases must also see new funding.

b) Clinic Funding Issues

i) Community clinics

Most submissions dealing with funding for community clinics recommended increases to enable the
clinics to serve more people. These submissions are addressed below, under "Coverage Issues". The
Association of Legal Aid Lawyers (ALAL) and the Ontario Bar Association both addressed the issue of
salaries for clinic counsel. ALAL's submission includes statements from people affected by the low staff
lawyer salaries. Several lawyers wrote of their leaving legal aid work due, in part, to insufficient salaries.
A clinic director wrote of significant difficulties in hiring lawyers for clinic work. Several law students

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interested in working for a clinic indicated that they would probably be unable to pursue this career path
in light of their student debt.

ALAL emphasized that the significant salary differential between legal aid lawyers and government
lawyers implies a two-tiered justice system.

ii) Specialty clinics

Specialty clinics present a number of unique funding concerns. The HIV & AIDS Legal Clinic's
submission on behalf of the Executive Directors of the Provincially Mandated Specialty Legal Clinics
recommended increases in specialty clinic budgets to address expenses incurred due to their unique
nature. Such unique expenses include travel across the province for cases, greater disability
accommodations, and specialized research and educational materials. The Metro Toronto Chinese &
Southeast Asian Legal Clinic noted the significant translation and interpreter costs of clinics serving non-
English speaking communities.

The Ontario Federation of Indian Friendship Centres noted the success of culturally appropriate
programmes in addressing Aboriginal issues, and urged the creation of a legal services corporation, with
regional offices across the province, to provide a broad range of legal services in conjunction with the
programs already available through the friendship centres. This would assist a population that has not
been accessing the regular community clinics. Aboriginal Legal Services Toronto commented that it
would like to provide a more extensive range of legal services, but that its current funding from LAO
precludes this.

Parkdale Community Legal Services (Workers' Rights division) and the Workers' Action Centre urged the
creation of a specialty employment law clinic, in partnership with the Workers Action Centre. This would
address an area of legal need that contributes significantly to poverty, but is rarely covered under the
current legal aid system. A person's status as an employee is important for other benefits such as
Employment Insurance, the Canada Pension Plan, and maternity leave. These clinics pointed out that the
nature of certain segments of the workforce, i.e. non-standard, part-time, and contract work, results in
these workers not being clearly covered by employment standards. Since many of the affected workers
are recent immigrants, these clinics argued that better interpretation services need to be provided to make
legal aid more accessible. These clinics also advocated that other existing clinics take on these types of
cases.

The African Canadian Legal Clinic advocated that new clinics be created to deal with mental health and
homelessness, correctional law, employee law, and education law to handle school suspensions.

The Law Society of Upper Canada's Access to Justice Committee was of the view that multidisciplinary
clinics that provide legal, social and health services under one roof, should be the way of the future. The
Alliance for Sustainable Legal Aid also advocated a system that would have a single entry point for
clients.

The Student Legal Aid Services Societies (SLASS) argued for the need to look beyond the law to help
resolve certain issues that disadvantaged and vulnerable individuals face. SLASS believes that services
and programs should be provided upfront to help keep these individuals from coming into contact with
the legal system, e.g. pre-charge diversion programs for youth. SLASS also noted concerns that in terms
of budgetary allocations from LAO, some of the student clinics were treated less favourably than regular
clinics, despite their dual teaching and service delivery responsibilities.

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c) Duty Counsel

The Association of Legal Aid Lawyers (ALAL), as well as the Association of Staff Duty Counsel
(ASDC), argued that the low salary paid to staff duty counsel prevents the hiring of experienced counsel.
These associations further argued that the cost of funding a per diem duty counsel for a year is a great
deal higher than the annual salary of a staff duty counsel. These associations believe that LAO could save
money and still pay staff duty more if per diem duty counsel were eliminated.

Aboriginal Legal Services of Toronto (ALST) argued that the duty counsel in the three Gladue Courts
work more closely with their clinic in terms of the training they receive. ALST would prefer that Gladue
Court duty counsel work as staff in their clinic.

d) General Issues

It was noted by at least one group that changes by the federal government in its transfer payment system
in the mid-1990s had a large and negative impact on legal aid's budget and the legal aid services that are
consequently available.

A number of organizations commented on the greying of the legal aid bar, which they believe will likely
result in an absence of qualified lawyers in the near future who will be willing to take on legal aid work.
ALAL made the point that if it were not for the commitment of lawyers doing legal aid work, the legal
aid system would have already collapsed.

The Ontario Bar Association (OBA) suggested that funding for LAO should be enveloped, where the
government would determine a set amount that must only be used for specific areas of law (i.e. criminal,
family, immigration, etc.).

It was pointed out by the Alliance for Sustainable Legal Aid that unmet legal needs can have significant
costs for other areas of the justice system, and the broader social system. For example, health issues can
stem from a person having to represent themself in family court. The OBA argued that the legal aid
system should prioritize early intervention. The OBA believes that putting resources at the front end of
the legal process would reduce the demand on other social services.

II. COVERAGE ISSUES

a) Financial Eligibility

A number of groups stated that the current financial eligibility requirements result in too many of the
working poor confronting the legal system without representation. The OBA pointed out that in the 1960s
the vision for the legal aid system was that no person would be left behind. The Law Society of Upper
Canada's Access to Justice Committee pointed out that the only contact that most members of the public
will have with the court system is in their family law matters, where there is a rapidly rising number of
unrepresented litigants.

In relation to criminal matters, it was pointed out that even if a person meets the eligibility cut-off, they
will not receive a legal aid certificate if their charge does not present a risk of incarceration. The African
Canadian Legal Clinic suggested that the test should be changed to an assessment of the impact on the
individual. The Defence Counsel Association of Ottawa proposed that the prospect of a criminal record,
loss of employment, loss of custody of or access to a child, or a Charter violation should all be
considered sufficient to gain legal aid coverage.

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Several submissions argued that current eligibility criteria are not reflective of current financial realities
and impact particularly heavily on already vulnerable populations. For example, the African Canadian
Legal Clinic (ACLC) noted that in the criminal system unrepresented and overwhelmed defendants more
often plead guilty. The ACLC submitted that the consequences of a criminal record are particularly severe
for the Black community, as it feeds into stereotypes and significantly reduces employment opportunities.
The ACLC also argued that victims of hate crimes and single parents seeking custody of their children in
child protection hearings are facing serious enough situations that legal aid should be available without a
financial eligibility requirement. In relation to young offenders, the ACLC argued that the income of the
youth's parent should not always be considered when determining whether to provide a youth with a legal
aid certificate.

The Metropolitan Action Committee on Violence Against Women and Children (METRAC) expressed
concern that women who have experienced violence are often forced to cope alone with complex family
law cases at the same time as they are already struggling as working single mothers.

The Law Society of Upper Canada's Access to Justice Committee expressed particular concerns over the
very restrictive access to legal aid assistance in family law matters. The Access to Justice Committee
emphasized the importance of funding family legal aid to the social fabric of society. The Family
Lawyers' Association stated that the existing eligibility criteria have resulted in a lack of access to justice
that one would not expect to find in a first-world country. Pro Bono Law Ontario made the point that the
middle-class do not identify with the legal aid system, but they themselves often do not have effective
access to justice.

A number of the submissions raised the concern that burdensome financial eligibility requirements lead to
results which add to other costs in the system. The Family Lawyers' Association noted that the increased
number of unrepresented litigants in Family Court results in repeated adjournments and delays. The
Ontario Bar Association pointed out that unrepresented criminal defendants receive longer prison
sentences.

The Ontario Bar Association also stated that judges and administrative tribunal members find themselves
having to assist unrepresented people appearing before them, which raises questions about procedural
fairness.

b) Specific Issues

Some legal aid providers pointed to particular areas of law they believe should be covered under the legal
aid system. Immigration law issues were often raised. The Metro Toronto Chinese & Southeast Asian
Legal Clinic pointed to a recent survey of agencies serving racialized communities, which found
immigration law to be "both the most often needed service and the least accessible within the legal clinic
system." Several organizations urged that all clinics offer immigration law services, and two stressed in
particular that legal aid should be available for applications for landed immigrant status on humanitarian
and compassionate grounds. The African Canadian Legal Clinic stated that the types of legal services
provided by clinics is not always reflective of the needs of the community in which they are based.

Coverage of some subjects was urged on the grounds of potentially grave consequence to the individual.
One example is criminal cases that do not involve a probability of incarceration, which can still result in a
criminal record, loss of employment or deportation. Another example is education law cases, which can
result in expulsion from school, and often disproportionately impact racialized communities.

Coverage of other legal areas was urged due to certain changes outside the legal aid system. Parkdale
Community Legal Services (Workers' Rights division) argued for increased access to employment law

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services on the grounds that the increasingly non-standard employment market has led to a greater need
for rights enforcement. The HIV & AIDS Legal Clinic noted that federal funding for equality rights test
cases was recently eliminated. The African Canadian Legal Clinic expressed concern that the changes to
the functions of the Ontario Human Rights Commission could result in a greater need for legal aid for
human rights cases.

The African Canadian Legal Clinic also voiced the concern of some of their clients that the wait time for
receiving the initial certificate is too long (4-6 weeks). For family law matters, the wait time often
exacerbates the legal issues. For criminal matters, a person who is incarcerated may lose their job because
they are unable to get bail. As well, having to take a whole day off work to go to a legal aid office to
apply for legal aid has a considerable impact on the working poor.

It was pointed out by a number of organizations that clients often have multiple legal problems at the
same time, e.g. immigration issues, employment issues, discrimination issues and family law issues, but
the system is not set up to deal holistically with multiple legal problems. Pro Bono Law Ontario
advocated that legal aid services be available in non-traditional settings, such as shopping centres, and
also to be more expansive in the services that are provided.

III. GOVERNANCE AND ADMINISTRATIVE ISSUES

a) Board of Directors

The submissions by legal aid organizations contained few comments regarding Legal Aid Ontario's board
of directors.

The Association of Community Legal Clinics of Ontario (ACLCO) argued that the board has not always
reflected all of the skills and experience laid out in the legislation as criteria for selecting members of the
board, in particular, people with skill or experience in the operation of clinics or the special legal needs of
low-income individuals. ACLCO recommended that two members of the board should have direct clinic
experience, and that such members should be selected from a list recommended by ACLCO.

The Refugee Lawyers Association of Ontario (RLAO) expressed concern that a board weighted to
discretionary appointment by the government is vulnerable to political intervention. RLAO recommended
that the majority of the board should consist of lawyers with legal aid experience, so that it could
realistically assess the legal aid needs of the province. RLAO recommended that such members be
nominated jointly by LAO's administration and stakeholder groups. Aboriginal Legal Services of Toronto
similarly advocated that the board should be legislated to have an Aboriginal representative.

b) Equity Issues

A number of submissions stressed that the legal aid system fails to adequately address the needs of
disadvantaged communities. Some submissions recommended training for legal aid lawyers on racism
and violence against women.

A joint submission prepared by the Metro Toronto Chinese & Southeast Asian Legal Clinic, the Ontario
Association of Agencies Serving Immigrants, Parkdale Community Legal Services, Inc., and the South
Asian Legal Clinic of Ontario pointed to the growing racialization of poverty in Ontario and urged Legal
Aid Ontario to make equity and access to services by racialized communities an integral part of its
objectives. The proposed framework includes reviews of LAO and the clinics with respect to equity and
access issues, training for community clinic staff on racism and other forms of discrimination,
mechanisms for sharing information, and regular needs assessments based on demographic and economic
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information. Pro Bono Law Ontario also emphasized the importance of providing culturally and
linguistically appropriate services.

Aboriginal Legal Services of Toronto argued that LAO should hire an Aboriginal person in an LAO
management position.

c) Administrative Issues Surrounding Clinics

Two organizations expressed concern about recent administrative changes made by LAO that established
regional directors instead of separate certificate and clinic directors. The Association of Community
Legal Clinics of Ontario argued the reorganization is at the heart of many of their concerns, including the
concern that the clinics will be compared to staff offices and duty counsel offices. They also
recommended a review of this change after a year.

ACLCO presented a number of recommendations concerning the relationship between LAO and
community clinics. ACLCO argued that LAO should allow clinic boards to determine their own training
needs, that clinics and LAO should be jointly involved in regional and provincial strategic planning, and
that LAO's current accountability mechanisms are unrealistic for small organizations and fail to take
account of each clinic's unique requirements.

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Section VI: A FRAMEWORK FOR EVALUATION

I. THE RATIONALES FOR THE IDEAL OF ACCESS TO JUSTICE

In evaluating the current condition and performance of the legal aid system in Ontario and how well-
equipped it is to face future challenges in the years ahead, it is obviously important, and indeed necessary,
to have a clear focus on some broad normative reference points or benchmarks against which both the
performance and potential of the system can be evaluated. This was squarely recognized in the McCamus
Report 1 in 1997, and in important background research that the McCamus Task Force commissioned. 2 I
here set out briefly what I view as the most compelling normative justifications for an obligation on the
state to ensure access to justice.

a) Access to Justice and the Rule of Law

The first and most important rationale for viewing access to justice as an important ideal is based on the
close relationship of access to justice to the rule of law. The development of democratic societies has
been accompanied by the adoption of the notion of the rule of law - the replacement of rule by arbitrary
measures or by unchecked discretion with rule by law. While the content of the rule of law has been
subject to much debate over the years, 3 even minimalist conceptions of the rule of law espouse as central
the notions of "natural justice" or due process as these concepts are widely understood. If the rule of law
is considered to be based on laws that are knowable and consistently enforced such that individuals are
able to avail themselves of the law, then individuals must have the tools to access the systems that
administer those laws. Thomas Hobbes argued that the rule of law must satisfy an obligation which
Professor David Dyzenhaus has called the "publicity condition". This means that individuals, in
committing their obedience to the sovereign's rule, are promised the protections and benefits of law.
Dyzenhaus argues that the publicity condition is not so much an external limit on the sovereign's legal
power, but what the sovereign has to do in order to exercise power through law. Dyzenhaus argues further
that part of the obligation that attaches to the rule of law, especially as that law becomes more complex
(as many of our laws have, including criminal law, family law, immigration law, and social assistance
law) is for the government to provide the resources so that people can not only know the law, but also
gain access to it. This publicity condition obviously does not imply that the state is under an obligation to
ensure that every individual has a grasp of its entire set of laws. Actual knowledge of the law is not
considered a right under even the most progressive liberal theory, so long as every person has an
opportunity to know the law. This means that when individuals are unable to understand the law and its
impact and are unable to exercise effectively their rights and responsibilities under the law, the state has
an obligation to ensure that they have the resources to do so.

It is the inane debates about “The Spirit of the Law” instigated by the nefarious bent that costs the
taxpayers so much as the government members of the Law Society presume a right to ransack the people
an ideology that runs amul in the corporate world and the Upper Tier where their lawyers are always
looking for ways to do it to the people with no likelihood of ever being challenged..

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The government is simply preoccupied with ways to scam the people rather than putting a diligent plan in
place to eradicate amoral inclination in the bud that perhaps in a ten year period we would see a
significant decline in the need for lawyers as money is directed at the most serious problem of poverty,
hopelessness and despair that is often behind domestic problems, alcoholism, drugs….that begets amoral
inclination advancing to hard core criminal element where the government organized crime refuses to
support every individual’s guaranteed Charter rights with humongous ramifications with most serious
being more uncontrolled lawyers as the Law Society refuses to protect the consumer from their members
and they have admitted that they have different interests which absurd being officers of the court.

It simply shows where the most serious problem lies with unscrupulous members of the Law Society of
Upper Canada left free to ransack society.

The Minister of Justice and Attorney General of Canada is a Law Society bencher (Governor) by virtue of
his office having precedence over secondly the Ontario Attorney General who administers the Law
Society Act and the both are the chief legal advisers of all government departments, agencies and police
of their jurisdictions and the Ontario Attorney General is the “guardian of the public interest” but the
evidence shows that he has no interest in protecting every individual as guaranteed preferring to build
their empire by allowing the criminal element to flourish and thusly their members all to the humongous
detriment of society who he is responsible to protect.

Their corruption is simply overwhelming designed to keep the people barefoot and pregnant so to speak
as they have their hands into everything, the corporations, trusts and banks consistently providing
themselves and their pals tax breaks where Warren Buffet…I think that’s his name commented to the
media last year that he only paid 17% taxes.

So of course they do not pay their fair share in taxes getting richer all the time and the Middle Class end
up paying a humongous amount more until they get overwhelmed in the financial world joining the
poverty stricken or they are driven into crime.

Well I guess I just continue to repeat myself in an endless circle but that is the reality that I am putting to
paper for the obvious reason to get the truth to the people to let nature take its course beginning here in
Canada as we finally commence the end of the struggle of humankind.

The huge international corporate conglomerates introduce their capitalists pig democracy world wide that
that inevitably leads to war for the people simply have to survive.

I wonder how much we blow away on the armed forces that the money could be better spent eradicating
poverty.

When the financial collapse began the governments had no problem putting the people hugely into dept to
bail out themselves and their corporate friends…something they have never thought of doing to bail out
the poverty stricken putting an end to the absurdities of the nefarious bent.

The simple fact is the Law Societies have to go as they breed an evil spirit that spreads around the world
being precisely adverse to their responsibilities as officers of the court.

As the Society informed me their member’s only obligation is to vigorously advance the interest of their
clients in an illegitimate system where money wins in backroom trials with the Mulroney/ Schreiber case
a prime example where as Mulroney hadn’t paid taxes for over 7 or 8 years on whatever the amount was,
$225,000 I believe I last heard which the ordinary person would have been charged with tax evasion…
that’s how they took out Al Capone…not that he was an ordinary person but no different than Brian

60
Mulroney and the rest of the gang who obviously all worked together with him ending up with
$2,100,000, a clear demonstration of the illegitimate legal system designed to protect the government
hierarchy.

The thing is this just does not have to be if I could afford to commence proceedings on the government
personnel in Lawyer Files 1- 3 that would inevitably lead to the Ontario Attorney General as the evidence
already shows that he must have been behind the actions of the ORHT removing information from the
Tribunal recording and not recording the second day of the hearing as I ha asked the judicator the first
day if the hearing had been recorded catching my former tenant denying ever seeing or signing two
documents which he had signed with similar but phony signatures to defraud me.

Then when the ORHT refused to commence or cause to commence proceedings against him which is
their responsibility, having no logical reason not to it became apparent that there was something seriously
wrong with the legal system actually aiding and abetting the criminal, which the ORHT would not have
done on their own and of course the Attorney General or his agents, Crown Attorneys would have been
consulted between the first day of the hearing June 30 2005 and the second day July 28 2005 when the
judicator announced that the hearing would not be recorded.

When I faxed the evidence to the Investigations and Enforcement Unit I immediately got a phone call
from a snarly lady who refused to deal with the issues or even write explaining why, but due my
persistent near a month later Dave Grech coordinator of EIU finally wrote with absurd reasoning
incoherent to the facts and then refused to respond to my letter explaining in errors that caused me to
drive downtown to deliver a complete set of evidence and copy of the recording but he was not available
to see me and Roel Pascal accepted the evidence promising he would give it to Dave but I never heard
from him again.

This is consistent with the government modus operandi as they cite this section of so and so Act stating
the matter is now closed being obvious of their M.O. that never intends to support the victims or every
individual’s guaranteed Charter rights of equal protection and benefits.

So both the ORHT and Dave Grech are now guilty of an offense under section 206 (1) of the Tenant
Protection Act, 1997 and obstruction of justice in a criminal offense, serious charges that I reiterate that
they would never have refused to file the charges on their own.

The Ombudsman responded just as absurdly and eventually I sent the evidence to Dave’s boss the
Minister of Municipal Affairs and Housing John Gerretsen who is responsible to monitor compliance
with the Tenant Protection Act under section 200 of the Act but he writes that he trusts Dave Grech and
explains to me the arms length B…S that the ORHT is an independent agency and that he can not
intervene.

That is absurd as the ORHT operated under the Tenant Protection Act, 1997 and the minister is
responsible to monitor compliance rather difficult to do if he cannot intervene which is just part of the
scheme of these charlatans of deception, prevarication, manipulation and orchestration that is consistently
used.

The Minister is advised by the Attorney General and there simply can be no doubt that he is behind all
these absurd occurrences and the question remains why?

It appears to be relative to the Canadian Business Corporations Act where there is serious security flaws
as they register the companies with no plan in place to support investors as they pass the responsibility on
to the investor stating that they may apply to a court for recompense, but quite possibly not as the

61
likelihood of getting recompensed is limited at best as in my case the money is gone, but in other cases
the individual hasn’t a hope in hell against a corporation that is inevitably supported by the government as
the evidence proves as they aided and abetted my former tenant removing information from the recording
of the first day…didn’t record the second day and nobody would cooperate with me as was their duty.

The evidence shows that the Ombudsman, the ORHT and the Civilian Commission for Police Services
are not independent form the government as they would have the public believe and they falsify on the
web sites as to what they do, especially the Ombudsman who we are led to believe are there for the public
interest to file complaints against the government but when you do you get a response like I did stating
they have very limited authority, not at all as published being an obvious façade by the government as
they create such agencies when under fire from the public to quash the present pressure with the public
who put the pressure on them believing they did a good thing, where in fact all they did was raise our
taxes and provide more personnel to protect their conspiracy from the people.

Now with the pressure off only the individual who files a complaint knows the truth but the people feel
secure while in fact the individual stands alone in an inane battle against the system, which the media are
well aware of but refuse to help allowing for the success of the conspiracy.

When I write the various government departments providing the evidence that the government is
organized crime they of course know and respond either that they can not advise on personal cases and
they hope I understand or…give me the arms length spiel obviously absurd because it is the government
that establishes them with limited authority being an obvious indication that they never intended to
protect the people as guaranteed and could only be in the spirit of the conspiracy.

All the government departments and agencies are advised by the Attorney General who administers the
Law Society Act and is a bencher who believes he is not accountable to the Law Society and the Law
Society believes they are not accountable to the people, which is absurd but of course they are of the
opinion knowing that the government and Attorney General are in on the conspiracy with the members of
the Law Society holding every position of authority in the government and infested the corporate world as
investors and advisors hence the manipulation of the markets with nobody to stop them.

Then to protect themselves from their financial portfolios being randomly investigated by police fishing
expeditions they illegally stop them by demanding that they get a warrant. .

This not only protects them but the lawyers must keep consistent so they illegally protect the criminal
element from the victim and society as a whole.

“The Spirit of the Law” implies that every individual is presumed innocent, obviously incompliance with
the law as demanded of the Constitution even though we certainly know every individual cannot possibly
be innocent or we would not need to finance the whole damn legal system.

Can there be any doubt that the legitimate purpose of the legal system is to eradicate amoral inclination
nipping it in the bud and it is absurd to finance the police to do so and have the members of the law
Societies obstruct them in every way possible to collect evidence to prove beyond a reasonable doubt that
a person is or is not guilty.

When reasonable evidence has been provided to the police suggesting one’s non compliance with the law
a person who the evidence is against is presumed innocent and would be pleased to cooperate with the
police being of particular interest to them to have the police clear them of any wrong doing.

62
Only a guilty presumed innocent would obstruct a search of person or property if they believed they have
the legal right to do so which is the common erroneous illegitimate belief inconsistent with the
Constitution absolutely 180 degrees adverse to every individual’s guaranteed equal rights of protection
and benefits where the eradication of amoral inclination is prerequisite to their consistent guaranteed
protection

When a person refuses to cooperate with the police in “The Spirit of the Law” it is indicative of a person
who is not in, of and with “The Spirit of the Law” being more evidence to hold against them nothing that
can be considered an infringement upon their rights simply because you cannot protect the people from
the amoral by equally protecting the amoral from the people, but ultimately that is the modus operandi of
the government and legal system for the obvious reason that they are organized crime personified.

They have all the power, all the money and all the time they need to orchestrate their spins to whatever
realities perchance upon them all being charlatans of deception, prevarication, manipulation and
orchestration as the Law Society and the Ontario Government own Osgoode Hall and the Court of
Appeal, the Superior Court and the Law Society all in bed together so to speak where they hash out their
plans in favour of the members of the Law Society and then with the cooperation of the media begin their
pursuit for substantial financial growth of the Legal Aid trough they take 59% from as they proclaim their
benefit to society as they address the symptoms of their creations destined to multiply rather than
decrease and their modus operandi is clear documented by themselves needing only the people to study
the evidence to coherency and let nature take its course derived of sane moral thought and reason founded
on nothing but the truth, the whole truth in the supremacy of God.

Since 1840 Osgoode Hall has been co-owned by the Ontario


Government and the Law Society. The Court of Appeal for
Ontario, the Superior Court Of Justice and the Law Society
of Upper Canada currently reside at Osgoode Hall.

Hardly could it be conceivable that the Constitution: Establishment has any other interest or responsibility
to be anything other than in, of and with “The Spirit of the Law” that is the Golden Rule the summary of
the aspirations attributed to God where “The Letter of the Law” cedes to the supremacy of God in the
very first line of the Charter.

How clear can it be that consistency in “The Spirit of the Law” is prerequisite and all inconsistencies with
“The Spirit of the Law” must be immediately identified and expunged in the public interest and it is the
responsibility of the Attorney General to do so as the “guardian of the public interest” and is responsible
for all constitutional matters as defined in the “Roles and Responsibilities of the Attorney General”
published on the Ontario web site.

Clearly “The Spirit of the Law” will never materialize with the present attitude of the Law Society of
Upper Canada in deliberate neglect of their responsibility to

Law Society Act

4.1 It is a function of the Society to ensure that,

(a) all persons who practise law in Ontario or provide legal services in Ontario meet standards
of learning, professional competence and professional conduct that are appropriate for the
legal services they provide; and

63
(b) the standards of learning, professional competence and professional conduct for the
provision of a particular legal service in a particular area of law apply equally to persons who
practise law in Ontario and persons who provide legal services in Ontario. 2006, c. 21,
Sched. C, s. 7.

Principles to be applied by the Society

4.2 In carrying out its functions, duties and powers under this Act, the Society shall have
regard to the following principles:

1. The Society has a duty to maintain and advance the cause of justice and the rule of law.

2. The Society has a duty to act so as to facilitate access to justice for the people of Ontario.

3. The Society has a duty to protect the public interest.

4. The Society has a duty to act in a timely, open and efficient manner.

Make particular note of 2. that irrefutably means to facilitate access to justice to


every individual as guaranteed equally by the Charter

The reasons for the creation of the Law Society, as set out in the statute of 1797, were to
provide the province with a "learned and honourable body, to assist their fellow subjects as
occasion may require, and to support and maintain the constitution of the said Province."

In concrete terms, the mandate of the Law Society of Upper Canada was to see that persons
seeking admission to the legal profession were competent, and to ensure lawyers followed
proper procedures and behaved ethically. These goals are still its justification for existence.

Protecting their members from the public is precisely adverse to the Constitution and the Law society
has been irrefutably proven not justified.

Cannot be allowed to obstruct justice ever attentive to determine the truth not in their present curriculum

Two obligations with priority one to return the victim to the status enjoyed prior to the deprivation as
quickly as possible and apply due diligence to punishment attentive to deterrence in support of every
individual’s guaranteed Charter rights of eual protection and benefits.

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b) Access to Justice and Equal Freedom and Dignity of Individuals

The adversarial system, in allowing parties to represent their own cause, is often associated with the
liberal idea of individual autonomy. However, given this prima facie preference for party autonomy, a
state that is committed to liberal values will seek to ensure that each party has access to adequate and
roughly equal legal representation, especially when they lack sufficient personal resources to ensure this.
In a liberal state that did not ensure access to justice and the ability of individuals to adequately represent
their cases, the goals of equal freedom and dignity of individuals and equality before the law would be
threatened. This conception of access to justice is most compelling in certain contexts, such as when the
coercive power of the state is marshalled against individuals (as in criminal law, immigration law, and
child protection proceedings in family law). Related to the liberal ideal of equality of freedom and dignity
is the liberal value that equal application of the law and respect for diversity of viewpoints in an
increasingly pluralistic society may be the major common value shared by a society. Liberal legalism
posits that laws made through a pluralistic process should be applied equally to all citizens, and should
also respect vital interests of all groups in that society. Without adequate access to justice, individuals
may not be able to ensure that their vital interests are respected. Access to justice is therefore a vital
aspect of the primary shared value of plurality and, relatedly, equality before the law.

c) Access to Justice and Principles of Equitable Distribution

Where there are redistributive programs governed by the law, access to justice may require that people
seeking access to these programs be granted legal assistance to do so. Social welfare and related programs
are generally derived from values of distributive justice, and if there is no ability to access the law
administering those programs, then distributive justice may not be served. Access to justice in this context
requires that those who cannot understand or navigate the law pertaining to social welfare should have
legal services provided by the state, otherwise the substantive equality goals of the social welfare
programs cannot be realized. Other areas of law that safeguard equitable goals, such as employment law,
family law, and anti-discrimination law also create claims on the state to provide legal services.
Employment law may ensure, especially to the lowest wage earners, access to gainful employment.
Family law may ensure the well-being of women and dependent children. Anti-discrimination law
ensures that individuals are not denied rights on account of ascriptive characteristics.

d) Access to Justice, the Rule of Law and Economic Prosperity

While perhaps less commonly recognized in historical discussions of access to justice, enhancing access
to justice and the rule of law is now widely recognized as having an important connection with economic
prosperity. The ideals of access to justice and the rule of law encompass process values such as a)
transparency in lawmaking and adjudicative functions; b) predictability: laws, once enacted or adopted,
will be enforced in a predictable and consistent fashion; c) stability: laws that are intended or are likely to
induce major reliance interests (including those relating to protection of property rights and enforcement
of contracts) are not subject to frequent, convulsive and sudden changes; and d) enforceability: laws that
are adopted are effectively enforced by government and/or effectively enforceable through the courts or
other agencies of the state by private parties. These ideals also encompass institutional values that bear on
the major classes of legal institutions involved in the broader justice system, such as appropriate forms of
independence and accountability and a broadly shared sense of public legitimacy.

All these values affect important features of the economic environment such that, all other things being
equal, societies that are peaceful, orderly, and law-abiding are much more likely to be a magnet for
human talent and to enjoy high levels of investment and economic growth relative to societies that lack
all or some of these procedural and institutional values. Importantly, as has now been empirically
validated in many societies, a large part of the reason why people obey the laws (assuming that they are
65
not inherently unjust in the first instance) is a sense that whether they agree with the outcomes in
particular cases or not, they can feel confident that fair processes have been employed in investigating
and adjudicating their legal rights and responsibilities. 4 Fair processes centrally implicate the access to
justice ideal.

As these rationales for promoting the ideals of access to justice and the rule of law may seem abstract and
distant from the daily concerns of average citizens in Ontario, it is perhaps helpful to concretize their
importance by contrasting societies that place a high value on vindicating the values implicit in the access
to justice and rule of law ideals with those societies that, for whatever set of historical or political reasons,
do not. The increasing inequalities between developed and developing countries have rightly attracted
increasing concern amongst scholars, public policy-makers, and international institutions in the post-war
years, particularly over the past decade, where these inequalities, if anything, have become more sharply
accentuated. In a widely celebrated book by Nobel Laureate Amartya Sen, Development as Freedom
(1999), Sen argues that freedoms are not only the primary ends of development but are also amongst its
principal means. Sen broadly conceives freedoms to include 1) political freedoms; 2) economic facilities;
3) social opportunities; 4) transparency guarantees; and 5) protective security, and their respective roles in
the promotion of the overall freedoms of people to lead the kind of lives they have reason to value. In the
view of Development as Freedom, the freedoms link with each other and with the ends of enhancement of
human freedom in general by focusing on individual capabilities on the one hand and individual
opportunities on the other.

From the perspective of Development as Freedom (which has become enormously influential in
development circles and has now been translated into more than 30 languages), countries that routinely
deny or fail to protect basic civil and political liberties and the other freedoms identified by Sen, whatever
their performance in promoting economic growth, will fall short in any assessment of their state of
development. It will be obvious from this perspective that promoting the ideals of access to justice and
the rule of law are central ingredients in promoting the concept of development as freedom. 5 Sadly, on
many measures relating to the rule of law and civil and political freedoms, many developing countries fall
woefully short of the ideal.

Beyond debates about the ends of development, another striking feature of the debates about development
in the past decade or so is an increasingly sharp focus on the importance of institutions to development
(however development is conceived). This focus is often captured in the mantra "institutions matter" or
"governance matters". For example, the World Bank's Governance Project involves compiling a large
number of subjective measures of institutional quality - meaning data obtained from either polls of
country experts or surveys of residents (now almost 200 countries) - and grouping them into six clusters:
voice and accountability, political stability, government effectiveness, regulatory quality, rule of law, and
control of corruption. The authors of the World Bank's Governance Studies have created indices that
measure institutional quality along each of these dimensions as well as a composite governance index
designed to measure the overall quality of governance in a society. They then regress three measures of
development - per capita GDP, infant mortality, and adult literacy - on these indices and find strong
correlations (indeed, strong causal relationships) between each of their sub-indices of institutional quality,
including the rule of law, as well as a composite governance index, and their measures of development. In
a recent iteration of this work, the authors report:

The effects of improved governance on income in the long run are found to be very large, with an
estimated 400 percent improvement in per capita income associated with an improvement in governance
by one standard deviation, and similar improvements in reducing child mortality and illiteracy. To
illustrate, an improvement in the rule of law by one standard deviation from the current levels in Ukraine
to those "middling" levels prevailing in South Africa would lead to a fourfold increase in per capita
income in the long run. A larger increase in the quality of rule of law (by two standard deviations) in

66
Ukraine (or in other countries in the former Soviet Union), to the much higher level in Slovenia or Spain,
would further multiply this income per capita increase. 6

Drawing on the World Bank data, Rodrik, Subramanian and Trebbi, in a recent paper, 7 estimate the
respective contributions of institutions, geography, and international trade in determining income levels
around the world. The authors find that the quality of institutions "trumps" everything else. In their study,
the authors use a number of elements of institutional quality that capture the protection afforded to
property rights as well as the strength of the rule of law. To convey a flavour of the striking nature of their
findings, the authors find that an increase in institutional difference between measured institutional
quality in Bolivia and South Korea produces a two log point rise in per capita incomes, or a 6.4-fold
difference - which, not coincidentally, is also roughly the income difference between the two countries.

In a more recent study by the World Bank, Where is the Wealth of Nations?: Measuring Capital for the
21st Century (2006), the World Bank measures the wealth of countries in terms of natural capital (land
and natural resources), produced capital (machinery, equipment, etc.), and intangible capital (e.g., human
capital and the value of institutions). Once one takes into account all of the world's natural resources and
produced capital, 80 percent of the wealth of rich countries and 60 per cent of the wealth of poor
countries is of this intangible type. Strikingly, the rule of law explains nearly 60 per cent of the variation
in the residual category of intangible capital, while human capital explains another 35 per cent. The
study's conclusion is salutary: "Rich countries are largely rich because of the skills of their populations
and the quality of the institutions supporting the economic activity." In other words, the rule of law may
be our most valuable intangible economic asset. But because it is intangible, it is largely invisible and
thus at chronic risk of being undervalued and under-attended.

While this discussion of the salience of the ideals of access to justice and the rule of law to developed and
developing countries respectively may seem orthogonal to my assessment of the state of commitment to
the access to justice and rule of law ideals in Ontario today, it leads to a very simple point: it is easy for
societies such as ours that over centuries have gradually strengthened their commitment to these ideals
and made manifest their commitment in tangible ways through various public policies, to take that
commitment and these policies for granted as simply a background endowment that takes care of itself. In
my view, taking a longer-term perspective, this kind of complacency is likely to have serious
consequences - both in terms of our collective commitment to the various freedoms that access to justice
and the rule of law protect and to long-term economic prosperity. There is no basis for such complacency.
The United Way, in an extensive recent study focused on Toronto, Losing Ground, documents the
alarming increase in levels of poverty among different segments of the citizens of Toronto (especially
single-parent families). The Government of Ontario, in its November 29th, 2007, Throne Speech,
commendably committed itself to a poverty agenda to address these trends. The core mandate of the legal
aid system of Ontario is to provide legal assistance to some of the most disadvantaged groups in our
society: aboriginal Canadians, racial minorities, recent immigrants, single mothers, abused spouses and
dependent children, and individuals with physical and mental disabilities. As former-Chief Justice Roy
McMurtry of the Ontario Court of Appeal stated in his opening of the courts for 2007:

Legal aid is perhaps the single most important mechanism we have to turn the dream of equal rights into a
reality. Indeed, our laws and freedoms will only be as strong as the protection that they afford to the most
vulnerable members of our community.

A growing segment of Ontario society that is economically, socially, and politically marginalized and
alienated from the mainstream of economic, social, and political life in the province and who view the
law and its legal institutions and processes as something that is mainly used against them and not as one
of society's most precious shared assets are likely increasingly to view the ideals of access to justice and
the rule of law as empty promises that challenge their allegiance to the society and its institutions in ways

67
that are likely in the long-run to impoverish all of Ontario's citizens who are committed to a civilized,
compassionate, and prosperous society.

It is in this vein that I proceed to identify some disturbing trends that if extended into the future are likely
to undermine, or at least compromise, our collective commitment to these ideals.

II. ASSESSING THE STATE OF THE COMMITMENT TO ACCESS TO JUSTICE IN


ONTARIO

In the light of the important normative bases for promoting the related ideals of access to justice and the
rule of law in Ontario, I attempt a provisional and general evaluation of the state of that commitment to
date and its sustainability going forward.

In many respects, the legal aid system in Ontario, in all its dimensions, is a social program of which
Ontario citizens can be proud. For the year 2006-07, almost one and a quarter million low-income
Ontarians were assisted through various programs sponsored by Legal Aid Ontario, as depicted in
summary form in the following table:

SUMMARY OF LEGAL AID SERVICES - 2006-07

Clinic Assists (Legal advice/brief services) 130,310

Staff and Per Diem Duty Counsel Clients Assisted 764,675

Certificates issued 109,101

Community Clinic Case Files Opened 17,628

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Telephone Duty Counsel Hotline Clients Assisted 53,223

Clinic Referrals - People assisted 48,293

Total Number of Low-Income Ontarians Assisted 1,123,230

The Ontario legal aid system is the envy of most other provinces in Canada and many jurisdictions
beyond, as attested by the regular stream of visiting delegations to LAO from these jurisdictions to study
and learn from its experience.

However, this said, a substantial measure of satisfaction in what has been achieved should not become a
source of complacency as to the substantial challenges that the system faces in the future. In important
respects, the system has never fully recovered from the draconian cuts that were imposed on it in the first
part of the 1990s (briefly discussed in Section II above and in more detail in the McCamus Task Force
Report, Chapter 2). These cuts entailed a capping of the overall provincial and federal allocations to the
system, a reduction by half (from about 200,000 to 100,00) in the certificates issued, a significant
reduction in the maximum hours allowable under certificates for various legal proceedings, and a 22 per
cent cut in financial eligibility criteria for applicants for assistance. The financial eligibility criteria for
legal aid certificates have not been adjusted since the 22 per cent reduction in 1996.

In the ten years that have elapsed since 1996, inflation has eroded the standard allowances by a further 23
per cent - a 45 per cent cut in real terms from the pre-1996 criteria - rendering the eligibility criteria
seriously out of step with current cost of living levels and unrelated to any overarching conception of
basic needs or a more general and coherent conception of poverty to which various social programs
(including legal aid) might be anchored.

The following table shows current eligibility criteria and the criteria that would prevail if inflation
adjusted from 1996 (but not restoring the 1996 22 per cent cuts):

FAMILY Current LAO Net Annual Income Guideline 1996 Financial Eligibility Guidelines
SIZE (Based on 1996 Regulation) Adjusted for Inflation (2007)
1 $13,068 $16,316
2 $21,852 $27,284
3 $25,440 $31,764
4 $29,352 $36,649
5+ $33,264 $41,533

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The following table compares OLAP/LAO revenue for 1995-96 with 2006-07, showing a modest increase
in nominal terms, but a declining or at best flat federal contribution in nominal terms (and recognizing
that a significant and commendable commitment by the provincial government in its 2007 budget to
provide an additional $51 million over the next three years is not reflected in these figures):

LAO REVENUES (000's) 1995-96 2006-07

Provincial Government 192,105 218,810

Federal Government 59,700 50,700

LFO 19,990 51,532

Law Society 6000

Clients 14,050 11,657

Judgments, Costs and Settlements 2,997 407

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Misc. 508 1,358

Application Fees 581

Total 295,931 334,464

Crucially, on a per capita basis funding for legal aid in Ontario has declined by 9 per cent in real
(inflation-adjusted) terms from 1996 to 2006 (from $30.76 to $27.77). In addition, as I explore in more
detail in a later section of this Report, the hourly tariff chargeable under legal aid certificates, has been
increased only modestly over the past decade and is now seriously out of line with any relevant market
reference points and with cost of living indices over a longer time period. This has led to a significant
decline-16 per cent between 1999-00 and 2006-07-in the number of lawyers participating in the certificate
system, and a staggering 29 per cent fewer family lawyers.

Beyond the certificate system, I received numerous and well-documented briefs indicating that the
modest salaries presently paid to clinic lawyers and duty counsel have created increasingly serious
problems in recruitment and retention of suitably qualified and experienced staff.

By way of perspective, it is useful to compare rates of increase in per capita expenditures on legal aid
services over the past decade with per capita expenditures on health care and public education (primary,
secondary, and post-secondary) in Ontario over the same period:

PER CAPITA EXPENDITURE CHANGES IN CONSTANT 2007


DOLLARS 8

Health Education Legal Aid

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1996 2,054.90 1,128.43 30.76

2006 2,730.05 1,356.38 27.77

% change +33% +20% -9.7%

In short, on the demand side, a sharply diminishing percentage of the population qualify for legal aid, and
on the supply side, a sharply diminishing number of lawyers are prepared to provide legal aid services.

These trends have evolved in Ontario over the past decade and a half through successive governments of
all political persuasions and through good economic times and bad which suggests a major and not
transitory political challenge in putting the legal aid system on a more fiscally adequate and sustainable
basis and to reverse what could become a vicious downward spiral for the system in the longer term. As
the level of financial support has stagnated or declined in real terms, a major fiscal adjustment is required
to bring financial eligibility criteria on the demand side into some realistic and ongoing relationship with
a basic needs or poverty test, and to bring remuneration of legal service providers, on certificates or on
salary, into some tenable relationship with, at a minimum, changes in the cost of living and ideally with
various other market reference points in order to ensure the continuing participation of an adequate
number of qualified lawyers prepared to undertake legal aid work. Once the system is brought into some
reasonable kind of equilibrium, the ensuing challenge is to institutionalize a system where adjustments to
eligibility criteria on the demand side and to certificate tariff rates and salaries on the supply side are
made on a regular, rational, and incremental basis, rather than, as at present, on an ad hoc and episodic
basis, often in response to crises of some kind (e.g., work stoppages by certificate lawyers) against
unarticulated criteria and pursuant to a murky decision process that implicates in poorly defined ways
LAO, the Ministry of the Attorney General, and the Provincial Cabinet. In this way, future governments
will not face the formidable political and fiscal challenge of dramatic interventions to save the system
from implosion.

In contemplating the feasibility of an enhanced commitment to the ideal of access of justice and the rule
of law in Ontario, it is useful to situate the challenges that must be confronted in a broader political
economy context. Legal aid, in contrast to major universal programs, such as health care and education,
provides services primarily to low-income Ontarians on a means-tested basis. Under the increasingly
unrealistic financial eligibility criteria noted above, the 2006 Annual Report of LAO reports that the
certificate refusal rate was more than 22 per cent in 2005-06 (an approximate 26 per cent increase from
the previous year) and that the highest number of refusals occurred in the area of family law, which had a
nearly 30 per cent refusal rate. Numerous submissions to me identified the increasingly serious problem
of unrepresented litigants attempting to navigate on their own the complexities of family law in the
province. Civil claims more generally are now largely excluded from the purview of the system. In short,
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the legal aid system, despite the important normative rationales that underpin it, is not a system in which
most middle class citizens of Ontario feel they have a material stake. As a percentage of the population,
fewer and fewer citizens qualify for legal aid, and many working poor and lower middle-income citizens
of Ontario confront a system which they cannot access and which they are expected to support through
their tax dollars even though they themselves face major financial problems in accessing the justice
system (as witnessed most dramatically in the family law area, but also in various areas of civil
litigation). 9 As Chief Justice Beverly McLachlan of the Supreme Court of Canada stated in an address to
the Council of the Canadian Bar Association, August 11, 2007:

The cost of legal services limits access to justice for many Canadians. The wealthy, and large
corporations who have the means to pay, have access to justice. So do the very poor, who, despite its
deficiencies in some areas, have access to legal aid, at least for serious criminal charges where they face
the possibility of imprisonment. Middle income Canadians are hard hit, and often left with the very
difficult choice that if they want access to justice, they must put a second mortgage on their home, or use
funds set aside for a child's education or for retirement. The price of justice should not be so dear.

At present, it is too easy to caricature the legal aid system as being primarily devoted to providing
criminal defense services to poor people - poor people who are presumptively bad, and are probably poor
because they are bad - without sufficiently recognizing that adequate criminal defense services are a
bulwark against arbitrary and oppressive behaviour by the state or its agents that are part of the daily life
of citizens in many other countries (as I have noted above) and as a safeguard against wrongfully
convicted accused (which even in Canada has been a tragic but too frequent occurrence). It also reflects
an insufficient appreciation of the fact that criminal defense services account for only about a third of the
legal aid budget, with the other two-thirds being devoted to family law, immigration law, and poverty law
(which includes access to various social benefits, employment law, housing law, anti-discrimination law,
etc.).

This leads me to suggest that both LAO and the Government of Ontario, through the Ministry of the
Attorney General, need to accord a high priority to rendering the legal aid system more salient to middle-
class citizens of Ontario (where, after all, most of the taxable capacity of the province resides). It is
striking in this respect that the one jurisdiction in the world that spends dramatically more per capita on
legal aid services than Ontario is the U.K., where annual expenditures on legal aid services are currently
running at about 77 dollars (Canadian) per capita, compared to 27 dollars per capita in Ontario, almost
three times as large. 10 This level of support has been sustained over time through governments of
different political persuasions, and the level of political support is in significant part, in my view,
attributable to the fact that many of the services provided by the U.K. legal aid system are not means-
tested, and where they are means-tested, are means tested against much more generous criteria. For
example, as I describe more fully in the next section, in the U.K. a network of more than 500 Citizens'
Advice Bureaus, partly supported by the U.K. Legal Services Commission and partly by local charities
and donors, operating under a national associational umbrella, provide a wide array of advice and
assistance to citizens in their communities, often using volunteers and paralegal staff and a network of
professionals, including lawyers, to whom referrals can be made on a non-means tested basis. The CAB
service is known by 96 per cent of the public, and 41 per cent of the general public has used the service at
some point in their lives.

It is true that in Ontario, some forms of summary assistance are provided without means testing, such as
duty counsel services in the criminal courts and in the family courts; Family Law Information Centres
provide some forms of advice and assistance on a non-means tested basis; various web sites operated by
LAO or clinics provide public legal education materials; the Law Society of Upper Canada operates a
telephone hotline service; and Pro Bono Law Ontario has embarked upon an impressive set of pilot
programs utilizing volunteer lawyers to improve access to justice in some small claims courts and the

73
Superior Court in Toronto against relaxed eligibility criteria. Some clinics also provide summary advice
on a non-means tested basis. However, all of these initiatives are ad hoc, poorly integrated, not
aggressively promoted to the public, and cannot reasonably be viewed as constituting a systematic effort
to enhancing access to justice for the working poor, lower middle-income, and middle-class citizens of
Ontario more generally. Without engaging the latter more fully as beneficiaries of the system, it is
probably unrealistic to expect them to be engaged, at least to a greater extent than at present, as financial
underwriters of the system.

While I am not proposing the transplantation of the U.K.'s Citizens' Advice Bureaus to Ontario, as I
develop in more detail in the next section of my report, more systematic efforts could be made (and
resources provided) to the clinic system to provide summary advice and assistance on a wide range of
matters to citizens in their communities on a non-means tested (or at the very least much more generously
means-tested) basis. More comprehensive, sophisticated, and accessible electronic information systems,
accessible to all citizens of the province, should be developed. More sophisticated telephone hotline
services, available to all citizens of the province, by way of analogy with the highly successful Telehealth
service in the Ontario health care sector, should be developed. Another productive line of inquiry should
focus on the promotion of private insurance markets for legal expense coverage, especially in family law
and civil matters - in the U.K. such coverage is available at modest additional cost with most home-
owners insurance policies and in Sweden such coverage is mandatory. A yet further strategy for rendering
the legal aid system salient to the middle-class in Ontario is as a decentralized system of intelligence
about dysfunctions in the broader justice system, which if redressed will benefit not only legal aid
recipients but all citizens of the province that engage with these aspects of the justice system. 11

I believe that all these initiatives (and probably many more than imagination and comparative experience
might suggest) should be explored (as I develop more fully in the next section of the report) so as to
broaden dramatically the range of citizens who are direct beneficiaries of the legal aid system and who,
hence, are likely to be willing financial contributors, as taxpayers, to its enhancement. In thinking through
initiatives of this kind, I believe it is time that a kind of on-off switch mentality to legal aid services is
abandoned. At present, on the demand side, for qualifying individuals, a full suite of legal services for
particular legal problems is made available. On the supply side, more than 60 per cent of LAO's budget is
accounted for through the provision of formal legal representation in court or tribunal proceedings by
lawyers. One could readily imagine a system that has many fewer discontinuities in it - a system where
some range of services (various forms of summary assistance) is provided broadly to most citizens of
Ontario, a further range of services is provided against generous means-tested criteria, and a yet further
range of services is subject to a more strict, but realistic, means test. In other words, the system should not
be predicated, to nearly the extent that it currently is, on an all-or-nothing basis.

In pursuing this line of policy development, it is important to link it with another theme, which again I
develop more fully in the next section of this report - greater integration of legal aid services. As
empirical studies in various jurisdictions now amply demonstrate, individuals' problems often come in
clusters, where one problem triggers a cascade of other problems. The initial problem may be a legal
problem, but without early intervention this problem may trigger subsequent problems, legal or otherwise,
such as greater demands on other social welfare programs, social housing programs, physical or mental
health programs, etc. Early intervention is in fact cost-conserving from a broader fiscal perspective in that
it preempts these cascades. But more than this, it calls for a more holistic or integrated institutional
response where individuals with clusters of interrelated problems are not subject to endless referral
processes that are tied to particular institutions (a silo approach) rather than particular individuals' needs
and to referral fatigue that leaves many problems unresolved. In this respect, a reconceptualization and
broadening of the mandate of the clinic system may be an important first step along the path to greater
integration in the provision of legal aid and related social services.

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It might, of course, be argued that striking out in these directions would entail an expansion of the scope
of the legal aid system in Ontario and hence exacerbate the existing financial frailties of the system that I
have described above. However, I believe that this paradox is more apparent than real. For middle-class
citizens of Ontario to support the legal aid system with anything approaching the enthusiasm with which
they support public health care and public education in the province, their participation in this system,
other than as merely taxpayers who underwrite it, is a sine qua non for its future health.

There is another and more fundamental sense in which the attitudes of the middle-class, both as
participants and taxpayers, towards the justice system in general and the legal aid system in particular
need to be addressed and responded to. The general body of citizens of Ontario is entitled to assurances
that legal aid resources are being expended to facilitate the smoother, more timely, and more effective
resolution of disputes, rather than the opposite - underwriting seemingly interminable wars of attrition
that may appeal to some lawyers, but to almost nobody else. In other words, the citizens of Ontario are
entitled to assurances that legal aid resources are being spent cost-effectively. When they observe
criminal trials that go on for months and sometimes years; when they observe that even in relatively
mundane criminal matters eight to ten appearances and adjournments before substantive resolution of the
matter are routine and not exceptional; when they observe family court proceedings that go on for months
and often years, beset by endless procedural and evidentiary motions and adjournments, they have
legitimate cause to doubt that legal aid resources that support such processes are being used cost-
effectively. Moreover, they have legitimate cause to ask why costly legal aid resources are being used to
prop up and sustain underlying dysfunctions in the justice system and in some cases to exacerbate them,
rather than deploying those same resources to repair those dysfunctions at their foundations. In their daily
economic and social environments, they are expected to adjust to ever more rapid processes of change,
and they wonder why the justice system seems largely impervious to similar processes of change but
instead, in their perception, resembles some baroque institutional period-piece from a by-gone age. I
believe that these attitudes should be taken seriously, because they are largely true. The implications for
reform of the legal aid system are that such reforms must be seen as part of a broader project of
progressive and incremental reform of the justice system at large.

1. Chapter 5.
2. See David Dyzenhaus, Normative Justifications for the Provision of Legal Aid.
3. See Michael Trebilcock and Ron Daniels, Rule of Law Reform and Development:
Charting the Fragile Path of Progress, (Edward Elgar, forthcoming, 2008, chapter 1).
4. See Tom Tyler, Why People Obey the Law (Yale University Press, 1992).
5. See Amartya Sen, "What is the Role of Law and Judicial Reform in the Development
Process?" World Bank Legal Conference, June 5, 2000.
6. Daniel Kaufmann, Governance Redux: The Empirical Challenge 14 (World Bank, 2004).
7. Dani Rodrik, Arvind Subramanian and Francesco Trebbi, "Institutions Rule: The Primacy
of Institutions Over Geography and Integration in Economic Development," (2004) 9 J. of Econ.
Growth 141..
8. 1996 and 2006 were used because they were census years, making the population
assessment more accurate.
9. Civil Justice Reform Project: Summary of Findings & Recommendations, November
2007.
10. The data refer to legal aid spending in England and Wales. Scotland and Northern Ireland
have separate legal aid systems.
11. McCamus Report, chap. 6.
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Section VII: INNOVATIONS IN SERVICE DELIVERY

As I noted in the earlier section on LAO's notable achievements, beyond the increased use of staff
delivery systems, LAO has not been particularly innovative in service delivery. I am aware that LAO has
often faced a certain amount of resistance to change from its service providers, which has undoubtedly
hampered some of its attempts to be innovative. However, as I have noted elsewhere, it is critical to the
health of the system that LAO experiment with various methods for delivering quality legal aid services
to its clients.

We are now well beyond the debates of previous decades about the merits or cost-effectiveness of
particular models for the delivery of legal aid services, whether these delivery models be based on the
private bar, staff lawyers, clinics, or other variations. It is also now clear that there is no silver bullet, no
previously unimagined idea that will reveal the best, most efficient and most cost-effective means of
delivering legal aid in all contexts. In the face of the serious issues confronting the legal aid system that I
outlined in the previous section, it becomes increasingly important that LAO be much more strategic,
innovative and experimental in its approach to service delivery.

I begin in this section by evaluating the range of existing mechanisms and suggest areas for improvement
or enhancement. I then review other innovations or alternatives worthy of consideration. These
innovations, in particular, are directed at addressing the issues I outlined earlier: the increasingly serious
problem of unrepresented litigants and the lack of universally available, non-means-tested forms of
summary information and assistance. Next I discuss empirical studies in various jurisdictions that
demonstrate the need for greater integration in legal aid services. Finally, I set out potential areas of
exploration to address the serious emerging issues in family justice services.

I. BUILDING ON CURRENT INITIATIVES

a) Duty Counsel

Duty counsel services have been shown to be high quality and cost-effective, particularly where staff duty
counsel are utilized. Since duty counsel services focus on a more limited set of functions than the private
bar, duty counsel have developed a very high level of expertise and specialization.

The expanded duty counsel (EDC) and supervisory duty counsel/Duty Counsel Office (DCO) programs
appear to be particularly effective. Not only do EDCs show promising results in the early resolution of
cases, but they also address some of the traditional limitations of duty counsel, such as the lack of file
continuity and strong relationships between lawyer and client. LAO should continue to pursue
opportunities to use staff duty counsel where feasible, in both criminal and family courts. In particular,
LAO should explore the potential for duty counsel to provide more, and more varied, pre-litigation
services, especially in family law. I encourage LAO to think more innovatively and creatively about the
services that could be provided by this valuable resource.

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I have not seen strong evidence that the scope of duty counsel functions should be broadly expanded to
include conducting trials. In very limited circumstances (i.e. where there is a demonstrated shortage of
private lawyers willing to take cases on certificate) it may be appropriate for staff duty counsel to take on
trials in those court locations where there are supervisory duty counsel and file continuity. The greatest
potential for such expansion is likely to be in short criminal matters, which should therefore be the first
area of exploration for LAO.

b) Paralegals

In its submission to me, LAO noted that the recent creation of a regulatory and licensing regime for
paralegals in Ontario gives LAO a significant opportunity to expand the use of paralegals within the legal
aid system. Community clinics in Ontario have considerable experience using paralegals ("community
legal workers") to provide client services. LAO's staff offices have also used paralegals successfully. The
remaining parts of the legal aid system have yet to use paralegals to their full potential. LAO has stated its
commitment to exploring that potential and to expanding the use of paralegals where it is appropriate and
cost-effective to do so, and I strongly endorse this commitment.

c) Staff Offices

Evaluations of staff offices appear to conclude that they do not provide services as cost-effectively as the
private bar. However, the assessment of the cost effectiveness of staff offices compared to the certificate
system in the criminal law context suffers from several limitations. Obviously, the assessment has to
confront the problem of endogeneity, i.e., any assessment of the cost effectiveness of the staff offices is
contingent on prevailing tariff rates for certificate lawyers and prevailing salaries for staff lawyers. If
either of these financial parameters were changed, the cost effectiveness assessment might well change in
favour of either the staff offices or the certificate system.

Setting aside this element of contingency in the assessment, I note that the staff offices appear to process
cases with slightly fewer billable time inputs than the certificate system, but the differences are not
substantial. One limitation here is that the staff offices are extremely small, so that full economies of scale
and specialization may not have been realized. However, on balance, the case has not been made for
extending the criminal staff office concept, at least as currently constituted, more broadly through the
legal aid system in servicing criminal justice clients. The existing staff offices serve the useful function of
filling in niches in the market in servicing the needs of especially vulnerable clients (e.g. those with
mental health issues) or providing criminal law services where lawyers are not available for certificate
work. In addition, the existing criminal law offices provide LAO with a useful window on this segment of
the legal aid services market by yielding independent observations on appropriate hourly allocations to
various criminal proceedings under the certificate system, thus justifying existing staff offices continuing
to provide a limited volume of criminal legal aid services in areas covered by legal aid certificates.

The evaluations of staff offices are similar on the family law side. I note, however, that in comparison to
the CLOs, which do not generally enjoy the support of the private criminal law bar, the family law bar
appears to regard very positively the services provided by the FLOs, and views the staff offices as a
complementary service, rather than a competing one. Similar to the CLOs, the FLOs tend to be a place of
last resort, taking on some of the hardest cases, and therefore provide a useful function of filling in gaps
in the market. However, in light of the frequent commentary as to the serious difficulty family law
litigants face in finding lawyers to accept legal aid certificates (particularly for child protection matters or
in rural communities), there may well be a strong argument for expanding the number of family law
offices. In order to be cost effective, and depending on the size of the community in which they are based,
the additional offices may need to be smaller and have more flexible and innovative staffing
arrangements. Family law offices have strong potential to provide integrated, holistic services to clients,
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and I recommend that LAO closely monitor statistical data-i.e. lawyer participation rates,
acknowledgement rates, the elapsed time from the issuance of a certificate to when it is accepted by a
lawyer, and the number of unrepresented litigants in family law court proceedings-to ascertain which
communities in Ontario may most benefit from FLO services.

II. ENHANCING ACCESS TO JUSTICE

In Section VI - A Framework for Evaluation - I describe at length a serious political economy problem:
the working poor, lower middle-income, and middle-class citizens of Ontario largely underwrite, but do
not benefit from the legal aid system; at the same time, they have limited access to the justice system
generally. In the Civil Justice Reform Project, the Honourable Coulter Osborne described the challenges
facing unrepresented litigants, and noted in particular the growing gaps in civil legal aid services. 1 As I
suggested earlier, there ought to be a much more integrated system for providing low-cost information
and summary advice services to a broader range of citizens than is currently available. Comparable
experience in other jurisdictions reveals that these sorts of services are most often delivered through
advice centres and technological solutions involving websites or telephone hotlines.

In addition to these ideas, I briefly discuss private insurance for legal expense coverage as another means
of enhancing access to justice, and I mention but do not recommend, competitive block tendering.

a) Advice Centres

The United Kingdom's Citizens Advice Bureaus (CABs) provide an interesting example of a response to
its citizens' social and legal problems. Since 1939, CABs have provided a central location for people to
seek information and advice on financial, legal and other problems. It promotes the motto "Advice
changes lives", and is the largest advice-giving network in the UK. The CAB service is known by 96 per
cent of the public and 41 per cent of the general public has used the service at some point in their lives.

Services described on its website 2 include:

• advice on virtually anything from benefit claims to unfair dismissal, debt and housing
rights;
• writing letters and making phone calls to companies and services providers on behalf of
the client;
• assisting with prioritizing debt and negotiating with creditors; and
• referrals to specialist case workers and specialist advisers who can represent people at
courts and tribunals

Services are free, independent, confidential and impartial, and are provided in person, over the telephone,
by email, online, at interactive kiosks, on DigiTV, as well as through home visits. Most bureaus also
provide advice in public places, such as health centres and hospitals, legal settings, prisons, and courts
community venues. The public information and advice website is available in both English and Welsh,
and it also includes a frequently asked questions section in Bengali, Chinese, Gujarati, Punjabi, and Urdu.
The CABs rely heavily on the services of volunteers, as well as paralegals.

CABs help people deal with nearly 5.5 million problems every year. Most client issues in England and
Wales have involved matters related to benefits and debt. CABs reported that 1,500,000 client matters
pertained to benefits and 1,437,000 related to debt issues. CABs also provided assistance with issues of
employment (473,000 matters), housing (402,000 matters), and, general legal issues (294,000 matters).

78
I also note the example of the Alaska Legal Services Corporation (ALSC), which makes use of volunteer
lawyers to assist in providing financially eligible clients with a one-time free consultation. Pro bono
lawyers also assist with a series of legal clinic workshops that ALSC organizes that are offered to the
general public irrespective of income levels in areas such as family law, bankruptcy and landlord/tenant.

Another model that Ontario could look to is the recent introduction in British Columbia of central
information hubs, based on the recommendations of the B.C. Family Justice Reform Working Group 3
and the B.C. Civil Justice Reform Working Group 4. Under the rubric "Justice Services Centre", these
hubs provide people with information, advice, guidance and other services to prevent and solve legal
problems as early as possible. The legal issues dealt with might include debt, consumer, housing and any
other civil or family law matter. 5

b) Technology and Legal Services

LAO acknowledges that it lags behind other jurisdictions in Canada and the United States in its use of
technology as a means of improving legal aid services. In a number of jurisdictions, legal assistance is
provided through (i) online and telephone legal information and education, and (ii) legal advice hotlines.

i) Online and Telephone Legal Information

British Columbia has recently made efforts to provide information to its harder to reach citizens by
utilizing technology. One example is British Columbia's LawLINK, which helps people facing legal
problems find legal information on the Internet. In order to facilitate access to the service, B.C.'s Legal
Services Society (LSS) set up LawLINK computer kiosks in a variety of locations, including all LSS
regional centres, some local agent offices, and some courthouses and community agencies. The locations
also provide direct telephone access to LawLINE, B.C.'s legal advice hotline, which I discuss below.
Legal information outreach workers help people use LawLINK to find legal information and self-help kits
on the Internet; give people printed legal information; refer people to other LSS services such as
LawLINE and the Family Advice Lawyer Project, and other related community services; and collect
feedback from community workers and the public about LSS programs.

Alberta has a "Dial-A-Law" service, which provides recorded legal information on more than 100 legal
topics. Similar services are offered in Newfoundland6 and Nova Scotia7. In the United States, Virginia's
Blue Ridge Legal Services, Inc. offers a toll-free legal aid helpline, after business hours, that provides
pre-recorded legal information.

ii) Legal Advice Hotlines

A number of jurisdictions provide legal advice by telephone. These legal aid "hotlines" provide a caller
with advice from a lawyer or paralegal on the particular circumstances of the caller's legal problem. The
Alberta Law Line, for example, was established in 2004, and has a staff of 20 lawyers, legal resource
officers and students. The Law Line uses the same financial eligibility criteria as Legal Aid Alberta: from
$24,312 for a single person to $33,324 for a family of three. Staff Lawyers at Alberta Law Line provide
legal advice over the telephone to eligible individuals, but do not attend court or meet with callers in
person. Legal information and referrals are provided to the general public.

British Columbia's LawLINE provides legal advice to individuals whose family net income is under
$36,000. LawLINE's lawyers and paralegals provide assistance with most legal issues, including family
law, criminal law, debt, housing, welfare, or contract/consumer matters. If a client requires service in a
language other than English, the LawLINE staff member who answers the phone will arrange immediate
access to a telephone interpreter. Interpreters are available for more than 100 languages. Most callers who
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qualify for legal advice can receive up to three hours of help, depending on the circumstances of the case.
Information and referrals are provided to the general public.

In the United States, considerable effort has been put into establishing legal advice hotlines over the past
decade. In 2001 the American Bar Association adopted standards for the operation of a telephone hotline
offering legal advice and information. Currently, at least 112 civil legal assistance hotlines are in
operation and have full-time staff lawyers and paralegals to provide advice to low-income citizens and
seniors. 8 The income cut-off to be eligible for legal advice from the hotlines is generally quite low and is
set by state and federal poverty guidelines. For example, in New York the cut-off for a single individual is
a gross annual income of US$12,763, or US$21,463 for a family of three. In Alaska, the eligibility rate is
slightly higher, at US$15,963 for a single person and US$26,838 for a family of three. Legal Services of
New Jersey's Hotline will provide all callers who do not meet the financial eligibility criteria with referral
information.

Some of the hotlines are narrow in the type of legal assistance they provide, 9 while others offer
assistance on a wide variety of legal issues. Legal Services for New York City (LSNY) is the largest
provider of civil legal services to low-income persons in the United States. LSNY consists of 11 offices
throughout New York City. One of those offices, the South Brooklyn Legal Services Office, operates
separate hotlines for each of the following areas: consumer/health, family, foreclosure, government
benefits, HIV, housing, rights of the disabled, special education, employment/unemployment insurance,
and tax. 10 Legal Aid of Southeastern Pennsylvania 11 operates a toll-free hotline that offers assistance in
family law, employment law, protection from abuse, public benefits, housing problems, elder law and
consumer and bankruptcy problems. The hotline is open Monday to Friday from 9:00 a.m. to 1:00 p.m.,
and operates in English and Spanish. If the caller needs assistance in another language, an interpreter will
be put on the line within minutes to translate for the client. Maryland operates a legal forms hotline that
provides assistance to family law litigants in uncontested or uncomplicated cases. Legal Services of North
Florida, Inc. 12 staffs its hotline primarily through volunteer lawyers. The areas of law covered include
landlord/tenant, consumer, and family law matters. Following the telephone conference, clients may be
sent letters confirming the advice given, along with written materials pertaining to their particular legal
problem.

I do not mean to suggest that Ontario has no comparable services. However, in Ontario, people who
cannot afford a lawyer but who do not qualify for legal aid currently have a very limited number of
options.

Community Legal Education Ontario (CLEO) is one of the main providers of legal education and
information materials that can be accessed by people who do not currently qualify for legal aid. CLEO is
a specialty clinic 13 with the sole mandate of producing and delivering public legal education to
communities in Ontario that are low-income or who otherwise face barriers to full participation in the
justice system. CLEO has prepared information booklets in the areas of family law, workers'
compensation, landlord/tenant, immigration and refugee, employment insurance, social assistance, health
and disability, seniors, legal aid services, criminal, and youth justice. These booklets are kept quite up-to-
date, and can be accessed through CLEO's website 14 and printed out, or CLEO will mail copies of the
booklets for free to anyone who requests them. An important part of CLEO's mandate is to support the
public legal education work done by local organizations in their own communities, and CLEO
publications are available for use by community agencies across the province. Most CLEO publications
are also available in French. CLEO has recently initiated a Six Languages Text and Audio Project, in
collaboration with community advisors that will produce legal information in Chinese, Arabic, Tamil,
Urdu, Spanish and Somali.

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The Law Society of Upper Canada provides a Lawyer Referral Service. The Lawyer Referral Service is a
1-900 number, through which any individual can obtain the name and phone number of a lawyer who will
provide them with a 30-minute phone or in-person consultation on their legal situation. The service is
universally available and costs only $6.00, but the 30-minute time limit is a significant restriction,
particularly for those who cannot afford to continue the consultation. Legal Aid Ontario provides a Duty
Counsel Hotline that provides free legal advice 24 hours a day, seven days a week, but is restricted to
adults and youth in police custody.

In December 2007, Pro Bono Law Ontario launched Law Help Ontario, a pilot walk-in centre in Toronto
for unrepresented litigants (which I visited), located in the same building as the Superior Court of Justice.
Law Help has a second location at the Small Claims Court. Law Help provides civil legal assistance,
primarily through the services of volunteer lawyers, in areas that are not covered by LAO (i.e. Law Help
will not assist with family law matters, except in the case of uncontested divorces). Law Help's eligibility
threshold is also substantially higher than LAO's.

Ontario's community legal clinics are also a source of limited summary advice and assistance, and I
discuss the role of the clinics more fully in the next section.

I also do not mean to suggest that these programs and services are not beneficial and important. My point
is that they do not constitute an integrated system for enhancing access to justice for a broad range of
Ontario citizens. Notably, Legal Aid Ontario, which has this mandate, does not directly provide
accessible legal information or advice in any significant way. LAO should be the hub around which these
others services are provided.

LAO has advised me that it is currently exploring proposals to develop capacity for internet-based legal
aid services and is in the early stages of developing a legal aid hotline. I suggest that LAO, PBLO and
CLEO work together to consider developing a toll-free telephone legal information line that could deliver
multi-lingual legal information in the most needed areas of law, such as family, domestic violence,
criminal, immigration/refugee, landlord/tenant, and human rights. 15

c) Legal Insurance Schemes

Legal information and advice for the working poor and middle class of Ontario represent a means of
providing limited amounts of service to a very substantial number of people. In many cases, however,
limited service simply will not suffice. One underexplored method of providing access to justice is legal
insurance.

Prepaid legal plans are not a new concept in Canada. They were considered and endorsed by the Law
Society of Upper Canada in 1993, 16 but have yet to make their way into the mainstream in Ontario.
Some employers such as the Canadian Auto Workers include this form of legal coverage in their
employee benefit plans. In Quebec, over 150,000 households have legal protection insurance included as
a rider on their home insurance. Another option is to have legal insurance included under one's
automobile insurance, as is mandatory in Germany. In Sweden, the state directly insures its citizens
against the cost of legal proceedings. These legal insurance plans vary in the types of legal disputes that
are covered and the form of legal assistance that is provided.

I conclude that legal insurance may be one means to significantly improve access to justice in Ontario,
particularly in civil matters, including family law. The Law Society of Upper Canada and LAO should
accord a high priority to promoting the role of legal insurance in Ontario. For example, one idea worth
exploring is to offer legal insurance as an optional rider on all mandatory third part liability auto
insurance policies. In order to keep premiums to moderate levels, such coverage would require a

81
significant deductible, e.g. $5,000, to discourage frivolous actions, as well as a cap on coverage, e.g.
$50,000, to prevent protracted litigation. It would also need to carefully define the classes of civil areas
that would be covered.

d) Competitive Block Tendering

The United Kingdom, based on a Report by Lord Carter of Coles published in 2006, 17 is currently
moving towards a system where legal aid lawyers are to be remunerated per case (rather than by the hour)
at a price set by the market on the basis of competitive tendering for legal aid contracts by providers. This
system is to be implemented on a nation-wide basis as of October 2008. Commentators expect that the
introduction of competitive tendering on block contracts will result in a potentially significant reduction
in the number of firms that will accept legal aid, with the Law Society chief executive expressing the
concern that the result is "a supply base of legal aid solicitors that is incredibly fragile and at extreme
risk." 18

The relative benefits and detriments of block tendering were considered in the McCamus Report. A
potential benefit of block contracting would be that the cases should be resolved at a lower cost than if
they were to be contracted on a single case basis, as well as developing the expertise of the local bar in
relation to certain types of cases or clients. The Report suggested, however, that block contracting may
compromise the quality of service that legal aid clients receive, since the lawyer has a financial incentive
to settle the case as soon as the billable hours and resources expended on it reaches the fixed price quoted,
even if it may not be in the client's best interests to do so. 19 In addition, block contracting takes away the
client's ability to choose counsel from a panel of legal aid lawyers. 20 The Report suggested that to
remedy some of these defects, the contracts could be non-exclusive, where the legal aid authority would
award the contracts to several firms and give clients the option to choose between them. However, this
would only be a viable option in larger urban areas where economies of scale and specialization could be
achieved. In order to ensure a sufficient level of quality of service, resources would need to be allocated
to monitor the level of services provided, and provide economic sanctions if service quality expectations
are not met. The relative transaction costs of monitoring and administering the block contract providers as
compared to the costs of monitoring and administering the certificate system would need to also be kept
in mind.

The Report also concluded that due to the complexity of family law cases, block contracting would not be
appropriate for family law matters. 21 I note also that it is not evident that Ontario has a thick enough
market of legal service providers especially in rural areas, 22 where the assumption that several firms will
compete for contracts seems unrealistic. For the reasons set out above, I do not think competitive block
tendering is a model that should be pursued in Ontario at this time, but LAO should closely monitor the
U.K. experience.

III. SERVICE INTEGRATION

Recent research indicates that Canadians have a high prevalence of justiciable problems that are not being
resolved. A national survey of 4,500 adult Canadians with individual incomes of $30,000 or less or
family incomes of $50,000 or less, carried out in 2004, showed that 47.7 per cent had experienced one or
more problems with legal aspects that they had considered serious and difficult to resolve within the
previous three years. 23 A subsequent survey of 6,665 adult Canadians, carried out in 2006, revealed that
44.6 per cent of all Canadians aged 18 years and older had experienced at least one serious and difficult-
to-resolve problem with legal aspects within the previous three year period. The Table below shows the
percentage of individuals experiencing one or more justiciable problems according to the fifteen types of
problems reported by respondents in the 2006 survey.

82
Percentage of Respondents Reporting at Least One Number of
Problem Category
Problem in the Category Respondents
Consumer 22.0% 1469
Employment 17.8% 1184
Debt 20.4% 1356
Social Assistance 1.2% 78
Disability Benefits 1.0% 66
Housing 1.7% 116
Immigration 0.6% 40
Discrimination 1.9% 130
Police Action 2.0% 133
Family: Relationship
3.6% 239
Breakdown
Other Family 1.4% 93
Wills and Power of
5.2% 348
Attorney
Personal Injury 2.9% 192
Hospital Treatment or
1.6% 108
Release
Threat of Legal Action 1.2% 82

The data show that two-thirds of the respondents did not receive assistance for the problems they
experienced.

Recent research in other jurisdictions has been undertaken to examine the tendency of socioeconomic
problems to occur in groups, or "clusters". Pascoe Pleasence of the U.K. Legal Services Research Centre
(Legal Services Commission) and his colleagues 24 found that certain problems tend to co-occur or
cluster such that when one problem type occurs, additional problems have a greater likelihood of being a
particular type. The problems may not have a causal connection to each other, but may instead be the
result of additional factors, such as health problems. Pleasence et al identified four primary problem
clusters: family (i.e. domestic violence, divorce and relationship breakdown problems); homelessness
(includes renting, homelessness, welfare benefits, and problems with the police); economic (includes
consumer, money/debt, employment, and neighbour problems); and discrimination and clinical
negligence. 25 An adverse impact of these multiple problems is that individuals often have difficulty
carrying on their normal lives. It is estimated that the cost to the U.K. National Health Service from such
civil problems is over one billion pounds per year. Pleasence's research demonstrates that individuals who
felt they were uninformed about their rights suffered greater negative consequences. Pleasence's research
also indicates that certain segments of the population, in particular minority groups, are more likely to
suffer from multiple problems. 26

Richard Moorhead and Margaret Robinson, also U.K. researchers, similarly found 27 that certain clients
experience a greater number of problems both because their problems are interconnected, and because the
clients are particularly vulnerable individuals. The primary clusters of problems that Moorhead and
Robinson encountered were similar to those identified by Pleasance et al, i.e. rented
housing/benefits/debt, relationship breakdown/children/homeownership/domestic violence, and
discrimination/employment. 28

Ab Currie 29 of the Canadian Department of Justice, whose studies I cited earlier, found that multiple
problems have several important features. For each additional problem experienced there is an increasing
likelihood of experiencing yet further problems, in part because certain problems act as triggers for other
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problems. The data indicate that multiple problems will cluster in definite patterns. For example,
relationship breakdown is often a trigger for other problems including debt, consumer, employment,
social assistance and other family law problems. Early and effective assistance with relationship
breakdown problems would therefore help forestall the formation of problem clusters and the increased
degree of disadvantage that may be associated with interconnected multiple problems. In light of the
evidence of the deleterious impact of legal problems on a person's physical and/or mental health, such
early intervention could also result in a cost saving to the social welfare system by reducing the need of
these individuals to have repeated visits to medical professionals to treat their resulting health symptoms.

Studies in New Zealand 30 and other jurisdictions have reported similar results. 31 The universality of
these findings is striking and has led to the conclusion that justiciable problems should not be dealt with
in isolation, but in the context of their causes and consequences through an integrated approach.

Moorhead and Robinson found that since the majority of problem clusters interrelate, clients would
benefit from a coordinated response to their multiple problems. 32 Significantly, they also found that the
manner in which clients present their problems is affected by how the advisors they meet with are
structured. 33 Funding arrangements, organizational capacities and skills, information deficits and other
barriers were found to impede the provision of a holistic response to a client's multiple problems. 34

In light of this evidence of problem clustering, the question becomes how can the Ontario legal aid
system most efficiently and effectively provide a coordinated response to individuals' multiple problems.
Currently, the legal aid, health, and social benefits systems largely operate in silos. The consequence is
that problems are treated in isolation, with the treatment being prescribed without due regard to the
continued effects of the individual's other existing problems. The above-mentioned research indicates that
if trigger problems are dealt with at an early stage, possible results include reduced costs for the legal aid
system and other social services, and improvements to the client's quality of life. An important
component of access to justice is to provide clients with upfront responses to their problems. Research
has underscored the importance of early intervention and early advice. Front end information and
assistance has been shown to help empower clients with the means to resolve their problems and to help
prevent their problems from multiplying or cascading.

I discussed the types of advice centres used in the U.K., Alaska and British Columbia in some detail in
the previous part of this section. I wish only to note here that they are also good examples of integrated
services.

Ontario's community legal clinic system is well regarded and often serves as a model for other
jurisdictions around the world. The range of legal matters addressed by clinics, including tenant rights,
income maintenance, and workers' compensation, can provide a modest level of service integration for
low-income people. As noted above, however, problem clusters involve more than multiple legal
problems; they involve health, social service and other problems as well. A few of Ontario's clinics have
been able to more closely integrate legal services with health or social services, or are willing to offer a
broader range of legal services to meet their clients' needs - at least for particular groups of Ontarians.

One example is the Centre francophone de Toronto ("the Centre"). The Centre provides a broad range of
multidisciplinary services to the Francophone community in Toronto. Upon attending at one of the
Centre's four locations, clients fill out a global needs assessment which determines whether they need
legal, health (physical and/or mental), social and/or employment assistance. The Centre has lawyers,
social workers and doctors all working together under one roof to facilitate ease of referral. The legal
clinic 35 provides assistance to clients with their immigration or refugee case, as well as housing matters,
social assistance case, human rights complaint or employment law case. While the clinic indicates it

84
would be beneficial for their clients to have a full-time family lawyer on staff as well, it does not
currently have the funding to do so.

Another example of integrated legal and social services that was mentioned in the course of my meetings
with stakeholders is the Barbra Schlifer Clinic. Started in 1985, this clinic provides counselling, legal,
interpretation, information and referral services for women who are survivors of violence. The Clinic
seeks to address the impact and root causes of violence against women, foster more effective and better
coordinated services to women, as well as facilitate reforms to the legal, medical and social welfare
systems that deliver essential services to women. The Clinic's dedication to preventing violence against
women is promoted through the delivery of multi-faceted client services (counselling, legal and language
interpretation) as well as through a broad range of community development and advocacy programs. The
interpreter services assist the Clinic's non-English speaking clients to access a variety of essential services
such as shelters, community centres, and the mental/medical health, legal, housing and social assistance
systems. The Clinic's counselling section offers multi-lingual individual and group counselling services.
The Clinic provides direct representation for its clients in family law cases, immigration matters and
administrative law proceedings, as well as advocacy with social/welfare and legal system professionals.
The Clinic is not funded by LAO, which gives it more flexibility in the range of clients it serves. The
Clinic also has an arrangement where it will rent office space to legal aid certificate lawyers in areas of
law that serve the needs of their clients.

York Community Services is a community-based charitable organization offering a broad range of


primary health care, legal services, counselling, housing help and community support programs to
residents of the former City of York in Toronto. Services are targeted to families at risk, primarily single
mothers and low-income families, newcomers and refugees, adults with developmental and/or mental
health difficulties and seniors and the frail elderly - with the overall goal of building healthy families,
individuals and communities. Staff and volunteers offer services in several languages, with special
programs available to newcomers from the Caribbean, Central and South America, Vietnam and Somalia.
It is one of the largest community based agencies in York with a multi-cultural staff of over 45. All
services are provided free of charge under one roof and one administration.

The Student Legal Aid Services Societies (SLASS) are also deserving of mention due to the willingess of
these student clinics to experiment with their services, both in substance and in form. For example, at
least some of these clinics provide some family law services and criminal defence representation in
summary offences, which is generally uncommon for legal aid clinics. The SLASS also participate in
outreach programs where they bring their services to the clients on the streets or in community centres,
and work in partnership with community agencies. As the SLASS submission to the review states "many
legal problems are inextricably interwoven with other social problems. Providing legal services in
combination with other social services enhances the success and durability of all." 36

Aboriginal Legal Services of Toronto (ALST) is also an example of innovative service delivery in the
legal integration it delivers to Aboriginal individuals and communities in Ontario. ALST provides
representation in legal matters including human rights complaints, housing disputes, police complaints,
employment insurance matters, and Indian Act matters; represents families at inquests; participates in test
case litigation, including at the Supreme Court of Canada; operates an Aboriginal court worker program
at the family, criminal and youth courts in Toronto; and has dedicated staff prepare Gladue Reports.
Unlike many of the other clinics, ALST receives its funding from multiple sources. ALST has proposed
the integration of other legal services within the organization, such as Gladue Court duty counsel. ALST,
along with the Ontario Federation of Indian Friendship Centres, argues persuasively for the creation of
several Aboriginal legal services corporations in Ontario, or one umbrella Centre with regional offices, as
is provided for in the Legal Aid Services Act but has not been acted on, to provide an integrated and
comprehensive range of legal services to Aboriginal communities.

85
I suggest that an option for moving towards an integrated response to Ontarians' legal and social problems
could be by way of reconceptualizing the mandate of Ontario's legal aid clinics. In their expanded role,
clinics would routinely conduct a global needs assessment of their clients. Once a client's needs are
evaluated, an organized referral system could be relied on to assist in resolving the client's existing needs,
with an aim to prevent further problems from developing. Clinics would also be a resource for the public
to go to for summary legal advice and assistance that is not means-tested or is means-tested against much
more generous criteria than currently prevail. This more fully integrated response to individuals' problems
would also help to prevent the occurrence of "referral fatigue", which has been described by Pascoe
Pleasence as the correlation between the increase in advisors an individual uses and the reduced
likelihood of obtaining advice on referral. 37

While community legal clinics are an obvious starting point for this sort of innovation, I do not wish to
exclude the considerable potential for integrated service delivery by the other staffed components of the
system, namely, duty counsel and criminal and family staff offices. LAO's SOAP initiative (Simplified
Online Application Portal), which directly involves social service agencies in the certificate applications
process and is described in more detail in Section IV of this report, could become an important platform
for an integrated referral network.

I am mindful of the difficulties of fully integrating legal and social services, including conflicts of
interest. It seems to me that better integration of legal services in Ontario's clinics, staff offices and duty
counsel offices, coupled with a referral system based on strong partnerships with the social service sector
would be a highly desirable goal.

IV. FAMILY JUSTICE SERVICES

Throughout this consultation and review process I have heard time and again that the people most in need
of additional legal aid assistance are those experiencing family law problems. The family law certificate
lawyers are the group most rapidly leaving the system, family law problems are a significant trigger for
additional legal and socioeconomic problems, and it is estimated that over half of family law litigants are
unrepresented.

A recent report on Ontario's Family Court Branch of the Superior Court of Justice 38 by Alfred Mamo,
Peter Jaffe, and Debbie Chiodo, entitled "Recapturing and Renewing the Vision of the Family Court"
("the Mamo Report"), examined the Family Courts' service delivery, court operations, and court-
connected mediation and information services. 39 The Report highlighted the issue of self-represented
litigants in the family court system, and recommended that the Family Law Information Centres (FLICs)
should be the entry point into the family justice system for the vast majority of cases, in order to ensure
that litigants are made aware of the range of services and dispute resolution processes available in the
court and the community.

FLICs fall under the responsibility of the Ministry of the Attorney General and have been established in
most courts that deal with family law matters. The FLIC is an area in each family courthouse where the
public can receive free information about divorce, separation and related family law issues (child custody,
access, support, and property division) and information about alternative dispute resolution processes.
Each FLIC has a variety of government and community publications and audiovisual materials available
addressing these issues, as well as guides to court procedures. Court staff provide service during
designated hours. Advice lawyers provided by LAO are also available in most locations to provide legal
assistance and advice to those who qualify. In many locations, advice lawyers are managed by a
supervisory duty counsel present in family court. In the course of my consultations, I heard that the FLIC
services are effective and beneficial, but are quite limited in some jurisdictions, and insufficient to meet
the demand. It seems to me that the value of the FLICs could be significantly enhanced were LAO to
86
explore the possibility of advice lawyers providing summary legal advice and assistance to a broader
range of clients, either on a non-means tested basis or in accordance with much more generous financial
eligibility criteria.

In addition, in the 17 Family Court of the Superior Court of Justice locations, an Information and Referral
Coordinator (IRC) is available to help clients address their overall needs at separation, including referrals
to sources of housing, counseling and legal services. IRCs also provide information about the different
procedural options that are available for clients (i.e. mediation, arbitration, negotiation) and referrals to
parent information sessions. It appears that where an IRC is available, they work well. Although I
recognize that such a service falls outside the mandate of LAO, it seems to me that having IRCs available
in more family court locations would bolster the integrated service delivery approach that I advocate
throughout this section.

Another initiative worthy of mention is the student run Family Law Project (FLP). All seven law schools,
under the auspices of Pro Bono Students Canada, are participating in the FLP. Although FLPs vary
slightly in each jurisdiction, overall the main task of FLP students is to help unrepresented people in
family court fill out court forms. The students do not give legal advice, and work under the supervision of
duty counsel. Litigants must first see an advice lawyer in the FLIC or a duty counsel who will advise
them on what type of claim they should make, for example a claim for custody and child support. They
can then sign up to see a student (on a first come first served basis), and a student will help them draft
their custody and child support application. In addition to meeting an important need among those
without legal representation, the FLP provides an invaluable opportunity for students to develop practical
skills applicable both within and outside family law, such as interviewing clients and legal drafting. The
need for assistance in filling out forms, particularly in the family law context, was raised with me on a
number of occasions during this review. The FLP fills an obvious gap and all efforts should be made to
maintain such services in the FLICs where possible.

The Mamo Report found that FLICs fill "an obvious need in the justice system for a clear entry point and
access to information … [and] one-stop shopping for service", and that the "personal nature of the centre
allows for greater access by those individuals who face barriers related to culture, language, literacy, and
poverty." 40 The Report identified a number of existing challenges and barriers that are hindering the
FLICs effectiveness, including insufficient staff, physical space constraints, and the inability of litigants
who fall above the financial eligibility cut-off to receive legal advice, which results in them becoming
"frustrated and uninformed … [which is] further compounded as they move through the system." 41

The Mamo Report also underscored the patchwork of federally- and provincially- appointed family
judges who preside over the three types of family courts in Ontario 42, and that the inadequacy of the
current judicial complement at the Superior Court level (which includes the Family Court), "creates
inequities for families and children throughout the province". 43 I heard similar observations in my
meetings with stakeholder groups. As well, at the 2007 Opening of Courts ceremony, Superior Court
Chief Justice Heather Smith publicly urged the federal government to appoint 12 new judges, stating that
the situation had reached a "critical point" resulting in an "impatient public". 44 No amount of funding or
innovative new legal aid service can improve a family justice system if there are insufficient judges to
oversee it. I echo the call to the federal government to make new judicial appointments to the Superior
Court of Justice in Ontario.

My earlier recommendations with respect to the use of duty counsel, paralegals and staff offices apply
particularly in the area of family law. I suggest that LAO, in determining expansions or improvements in
these services, accord the highest priority to family law clients. It seems to me that if community legal
clinics were reconceptualized to provide more integrated services, they could provide some forms of
summary assistance to family law clients. Similarly, PBLO's pilot project, Law Help Ontario, could help

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fill a gap in Ontario's justice system by organizing volunteer lawyers to provide advice in family law
matters for those who do not qualify for legal aid, which would complement existing family legal aid
services.

V. CONCLUSION

It has become increasingly clear over the past decade that there exists no single panacea for delivering
legal aid services that would remedy the existing ills in Ontario's legal aid system, i.e. that would provide
substantially more services from the same finite resources. As I outline above, there are a number of
potential service delivery methods that LAO could move towards in order to provide at least some limited
legal assistance to a broader range of citizens at a lower cost than the provision of a certificate. At the
same time, it is also clear that for many cases the need for formal legal representation cannot be done
away with. In terms of providing such legal representation, the desirability of implementing staff offices
on a wider scale than currently exists has not in general, to date, been demonstrated. I therefore conclude
that there is a need for more experimentation and collaboration by LAO in the provision of legal
information and advice services, as well as a greater focus on providing legal, and potentially also social,
services in a more holistic manner.

1. Civil Justice Reform Project: Summary of Findings & Recommendations, November


2007..
2. http://www.citizensadvice.org.uk.
3. Report of May 2005 available at:
http://www.bcjusticereview.org/working_groups/family_justice/final_05_05.pdf.
4. Report of November 2006 available at:
http://www.bcjusticereview.org/working_groups/civil_justice/cjrwg_report_11_06.pdf.
5. For more information see: http://www.ag.gov.bc.ca/justice-reform-initiatives/civil-
project/justice-services-pilot.htm.
6. http://www.publiclegalinfo.com/law_online/index.html.
7. http://www.legalinfo.org/index.php?option=com_content&task=view&id=27&Itemid=45.
8. http://www.legalhotlines.org.
9. For example, Michigan’s Food Stamp Helpline; California’s Immigration Hotline;
Hawaii’s Senior Legal Hotline; Georgia’s Tenant Hotline; Oregon’s Child Support Helpline;
Maryland’s Family Law Hotline and Missouri’s AIDS Legal Hotline..
10. http://www.sbls.org/.
11. http://lasp.org/get-legal-help.
12. http://www.lsnf.org/.
13. A community legal clinic that began in 1974 and is funded by LAO and the Department of
Justice. CLEO currently receives special project funding from the Law Foundation of Ontario,
the Trillium Foundation of Ontario, the Department of Justice Canada, and LAO’s Innovation
Fund..
14. http://www.cleo.on.ca.
15. The federal Legal Line provides free legal information through its website and hotline
service in 35 areas of law in relation to all Canadian jurisdictions. See:
http://www.legalline.ca/default.aspx?TabID=8192 While the breadth of information available

88
through Legal Line is commendable, I still see a need for a legal information line that is targeted
to Ontario residents, and which focuses its efforts on providing up-to-date legal information in
the most needed areas of the law..
16. Oliver Bertin, “Lawyers see more work thanks to prepaid legal plans”, Lawyers Weekly,
Vol. 24, No. 36, February 4, 2005..
17. Legal Aid: A Market-based Approach to Reform, Lord Carter’s Review of Legal Aid
Procurement, 13 July 2006, available online at:
http://www.legalaidprocurementreview.gov.uk/publications.htm.
18. BBC, “Solicitors ‘deserting’ legal aid”, 5 November 2006, available online:
http://news.bbc.co.uk/1/hi/uk/6115514.stm.
19. See also Trebilcock and Daniels, “Rethinking the Welfare State”, ch. 5 (New York:
Routledge, 2005) at 89..
20. At 209.
21. At 174.
22. See Final Report of the Sole Practitioner and Small Firm Task Force, March 24, 2005
(considered on April 28, 2005), prepared by the Policy Secretariat of the Law Society of Upper
Canada..
23. Ab Currie, A National Survey of the Civil Justice Problems of Low and Moderate Income
Canadians: Incidence and Patterns presented at the Canadian Forum on Civil Justice’s 2006
conference Into the Future: The Agenda for Civil Justice Reform, available online at: http://cfcj-
fcjc.org/docs/2006/currie-en.pdf.
24. Pleasence, P., Balmer, N.J. and Tam, T., Report of the 2006 English and Welsh Civil and
Social Justice Survey, London: Legal Services Commission, LSRC Research Paper No. 19, at 40.
Available online at: http://www.lsrc.org.uk/publications/csjs2006.pdf
The Future of Civil Justice: Culture, Communication and Change presented at the Canadian
Forum on Civil Justice’s 2006 conference Into the Future: The Agenda for Civil Justice Reform
http://cfcj-fcjc.org/publications/itf-en.php.
25. At 41-42.
26. Report of the 2006 English and Welsh Civil and Social Justice Survey, at 33
http://www.lsrc.org.uk/publications/csjs2006.pdf.
27. Moorhead R., Robinson M. and Matrix Research and Consultancy, “A trouble shared –
legal problems clusters in solicitors’ and advice agencies”, prepared for the Department of
Constitutional Affairs, November 2006, available online at:
http://www.dca.gov.uk/research/2006/08_2006.pdf.
28. Ibid, at 34.
29. Principal Researcher, Research and Statistics Division, Department of Justice Canada..
30. The New Zealand National Survey of Unmet Legal needs and Access to Justice (2006),
available online: http://www.lsa.govt.nz/documents/ILAG2007Paper-NationalSurvey-
implicationsforinformationandeducation.pdf.
31. Presentation by P. Pleasence and N. Balmer, Osgoode Hall Roundtable on "Rethinking
Civil Legal Need", November 5, 2007. See also Ab Currie, “The Legal Problems of Everyday
Life”, International Legal Aid Group, Antwerp, Belgium, June 2007..
32. Ibid, Executive Summary at i..
33. Ibid, Executive Summary at iii..
89
34. Ibid.
35. Services d’aide juridique du Centre francophone de Toronto.
36. At 3.
37. At 57.
38. Also referred to as the “Unified Family Court” to indicate their jurisdiction over both
provincial and federal family law matters. Unified Family Courts were first introduced in Ontario
in 1977 as a pilot in Hamilton. There are currently 17 Family Courts, located in Barrie,
Bracebridge, Brockville, Cobourg, Cornwall, Hamilton, Kingston, Lindsay, London, L’Original,
Napanee, Newmarket, Oshawa, Ottawa, Perth, Peterborough and St. Catharines..
39. The study collected data through interviews and focus groups, file reviews, online surveys,
and system data provided by the Ministry of the Attorney General..
40. At 58.
41. At 59.
42. Namely, the Ontario Court of Justice, the Superior Court of Justice, and the Family Court
of the Superior Court of Justice.
43. At 8.
44. http://www.ontariocourts.on.ca/scj/en/about/ocs.htm.

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Section VIII: THE FUTURE OF THE CERTIFICATE SYSTEM:THE
MANAGEMENT OF THE LEGAL AID TARIFF

I. INTRODUCTION

In the course of my consultations with stakeholder groups, no issue engaged more attention and provoked
more criticism than the management of the legal aid tariff, and more specifically, the hourly rates payable
under the tariff and, to a lesser extent, the maximum time allocation for particular proceedings and
maximum allocations for disbursements and travel time. The anger within the private bar at what they
regard as grossly inadequate hourly rates for services provided by members of the private bar under
certificates issued by LAO was palpable, and the sense of alienation from the legal aid system ubiquitous.
They are not only outspoken in exercising voice, but more to the point are voting with their feet in exiting
the system in increasing numbers. On the criteria of exit, voice and loyalty, 1 the certificate system is in
tenuous condition. The diminishing commitment by the private bar to the provision of legal aid services
poses a fundamental challenge to the sustainability of the legal aid system as we have known it. This
issue is one that requires urgent and immediate attention. My terms of reference require me to examine
"alternatives to the current tariff process, including methods of ensuring regular reviews to set and adjust
the hourly rate paid to lawyers doing legal aid work."

The legal aid tariff has a long history in Ontario that was reviewed at some length in the Holden-Kaufman
Task Force Report for LAO in 2000 and is briefly summarized and updated in an appendix to this section
of my report (along with a brief review of comparative experience). In brief, the legal aid tariff was
created by the Legal Aid Act of 1967 to provide for the payment of fees out of public revenues to lawyers
providing legal services under the certificate system with a view to approximating the modest fees that
would be charged to a client who could pay, but for whom the payment of a larger fee might involve
some hardship (the so-called "client of modest means" test). At that time the certificate (or judicare)
system was the only delivery mechanism for legal aid services, prior to the emergence of the clinic
system beginning in the late 1970s.

The tariff and the maximum hour allocations and the maximum allocations for various related matters
such as disbursements and travel time are set out in a complex regulation promulgated by the Lieutenant
Governor in Council. While the tariff and its structure have been revised from time to time, often long
periods of time have elapsed without significant revision. For example, hourly rates for legal aid work
were not changed between 1987 and 2001, although in the last several years the tariff has been increased
by about 16 per cent as a result of several modest changes to it. As of 2006-07 the tariff rates for legal aid
services provided under certificates are as follows:

• Tier I (0 - 4 years) $ 77.56


• Tier II (4 - 10 years) $ 87.26
• Tier III (10 years +) $ 96.95

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In submissions that I received and in consultations which I held with various stakeholder groups, most of
the attention was focused on the inadequacy of these hourly rates, but given the increasing complexity of
many kinds of legal proceedings covered by legal aid certificates, a number of concerns were also
addressed to the permitted maximum hourly allocations for various legal proceedings under the
regulations prescribing the tariffs (a matter which I do not feel equipped to deal with in detail in this
review).

LAO's submission to me reported the effect of low tariffs on lawyer participation rates. The number of
private lawyers providing legal aid services dropped steadily between 1999 and 2007, notwithstanding an
increase in both the tariff and the number of certificates issued during this period.

• Between 1999-00 and 2006-07, the total number of lawyers paid by LAO has fallen by 16
per cent (4,932 to 4,119)
• Between 1999-00 and 2006-07, the total number of criminal lawyers paid by LAO has
fallen by 14 per cent (2,875 to 2,460)
• Between 1999-00 and 2006-07, the total number of family lawyers paid by LAO has fallen
by 29 per cent (2,964 to 2,109)

LAO data also show that there is a significant "drop off" in the number of lawyers providing legal aid
services once they become more experienced. Again, this trend is most notable in the area of family law.
For example, in 1999-00 there were 855 "basic level" lawyers (0-4 years' experience) providing family
certificates compared to 722 lawyers at the next tier (4-10 years' experience). By 2006-07, there were
only 392 lawyers at the 4 to 10 years' experience level providing family certificate services, a decline of
46 per cent.

The seniority profile, when combined with an analysis of the "participation mix" (amount of legal aid
work undertaken by different categories of legal aid lawyers), illustrates the risks to sustainability of the
certificate program, particularly in family law. LAO data show that LAO relies upon a small number of
experienced family lawyers to deliver a significant proportion of its family law services. In 2006-07, only
11 per cent of family lawyers paid by LAO can be said to have a significant legal aid practice by
accepting more than 60 certificates for the entire year (an average of more than five certificates per
month). By way of contrast, 60 per cent of family lawyers paid by LAO accepted fewer than 12
certificates for the entire year (an average of less than one certificate per month).

On the criminal side, the data show that LAO relies on upon a comparatively larger number of
experienced criminal lawyers to deliver a significant proportion of its criminal law services. In 2006-07,
22 per cent of criminal lawyers paid by LAO had a significant legal aid practice (accepted more than 60
certificates for the entire year). Fifty per cent of criminal lawyers paid by LAO accepted fewer than 12
certificates for the entire year.

In both cases, LAO relies on a small proportion of senior lawyers to provide the bulk of legal aid services.
In family law, more than half (52 per cent) of lawyers with a significant legal aid practice have more than
10 years' experience. In criminal law, the proportion is even higher, at 61 per cent.

Relying on a small number of significant, experienced providers to supply the bulk of legal aid certificate
services, while realizing the benefits of experience and specialization, is also quite risky. It means that
even a minor reduction in the number of providers could have important consequences for client services.
Those consequences will be serious if LAO loses significant providers in small or rural communities.

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Equally important, the data suggest that the legal aid system may not be generating enough new lawyers
to replace the more experienced lawyers who now make up the bulk of LAO's service providers. The
situation in family law is particularly acute. In 2006-07 there were 58 Tier I and 56 Tier II (i.e. less than
10 years' experience) family lawyers across Ontario who had what could be described as a significant
legal aid practice. In other words, there were slightly more than 100 relatively young family lawyers in
Ontario who maintained a significant legal aid caseload. This is a small number of practitioners given the
size and diversity of Ontario. On the other hand, there are more young and relatively young criminal
lawyers with significant legal aid practices. In 2006-07 there were 214 criminal lawyers in this category
(105 Tier I and 109 Tier II).

By way of perspective, the current certificate program accounts for about $200 million of LAO's annual
expenditures out of a budget of about $325 million-or more than 60 per cent of LAO's total budget. The
Legal Aid Services Act of 1998, establishing LAO, mandates it to create and administer "a cost-effective
and efficient system providing high quality legal aid services to low-income Ontarians" and requires LAO
to have regard to the fact that "the private bar is the foundation for the provision of legal aid services in
the areas of criminal law and family law, and the clinics are the foundation for the provision of legal aid
services in the area of poverty law."

By way of further perspective on the current tariff, I note that the Holden-Kaufman Task Force in 2000
(with which I was associated as Research Director), in developing various quantitative comparators for
the tariff, found that the effective inflation adjusted hourly legal aid tariff had been declining since the
tariff restructuring of 1986 and that the effect of the hourly rate had never been restored to pre-1974
levels when inflation is taken into account. The report also noted that for this time period average net
professional income for self-employed lawyers in Ontario had been steadily and significantly increasing
and that the average incomes of other legal professionals, such as federal and provincially appointed
judges and Crown Attorneys, had also seen significant increases. The report also noted from a survey that
it commissioned of lawyers in private practice, that the legal aid tariff for many services covered under
the certificate system falls substantially - in some cases dramatically - short of the rates that lawyers
charge for similar services to clients of modest means. The report also noted that the number of practicing
lawyers per 10,000 Ontario residents had increased from 11.1 in 1978 to 14.8 in 1999, while the number
of lawyers paid by Legal Aid Ontario under certificates per 10,000 Ontario residents decreased from 6.0
in 1978 to 3.6 in 1999. In the light of these data, the Holden-Kaufman Task Force recommended that the
tariff be substantially raised to the range of $105 to $140 per hour depending on the level of experience of
the lawyers providing the services in question. The 16 per cent increase in tariffs since 2002 have
modestly mitigated these trends but not in any major way reversed them.

LAO in its business case for tariff reform presented to the Attorney General in November 2001 noted that
member organizations of the Legal Aid Tariff Working Group, including the Ontario Bar Association, the
County and District Law Presidents Association, and the Criminal, Family and Refugee Lawyers
Associations, sought an increase of the tariff to $100 to $120 per hour, depending on years of experience.
LAO itself at that time requested increases in the range of $85 to $105 per hour, depending on years of
experience, from the 1987 base rate of $67 per hour that then prevailed. As noted above, the current tariff
ranges from $77.56 per hour to $96.95 per hour depending on years of experience. If the base rate of $67
had been adjusted for inflation, it would have been almost $100 in 2002.

In considering issues relating to the tariff, I accept as a premise the fairness and efficiency rationales for
an appropriate tariff set out by the Holden-Kaufman Task Force in its report in 2000: In thinking about
the appropriate level of the hourly rate of the legal aid tariff as opposed to its structure (such as maximum
hours per service, the use of block or lump sum tariffs, counsel fees, or per diems), one could adopt a
fairness perspective, an efficiency perspective, or both. We are influenced by both perspectives.

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From a fairness perspective, one might argue that it is unfair for current and prospective providers of legal
aid services to receive an hourly rate for their services that has declined through time while the
compensation levels for lawyers in private practice, federally and provincially appointed judges, crown
attorneys and other government lawyers, and physicians has increased. Thus, lawyers that are committed
to allocating a significant portion of their practices to some of the least advantaged members of society
are being asked to make financial sacrifices, on account of their commitment, that most lawyers in private
practice and most lawyers or judges in the public sector are not required to make.

From an efficiency perspective, concerns about the level of the tariff must focus not on the fairness of
comparisons between lawyers providing legal aid services and other professional groups, but rather the
short and long-run incentive effects of under-compensation of lawyers providing legal aid services
relative to lawyers pursuing other kinds of practices or non-private practice careers. These incentive
effects are likely to affect both lawyers currently providing legal aid services and existing or future
lawyers who might prospectively provide such services. With respect to the existing cohort of lawyers
providing legal aid services, any deterioration of the legal aid tariff through time may induce an
increasing percentage of lawyers to substitute fee-paying clients for legal aid clients. One would predict
that young lawyers entering the profession committed to areas of private practice covered by the legal aid
plan (e.g., criminal law, family law, and immigration law), with excess capacity and relatively fewer fee-
paying clients, in the early years of their practice may be prepared to take on legal aid cases at very low
rates, because the opportunity costs of doing so are so low. However, as they become established, develop
reputations in their fields, and acquire a significant fee-paying client base that reduces or eliminates any
excess capacity, they will increasingly withdraw from the legal aid services segment of the market as
their opportunity costs of undertaking legal aid cases rise.

However, older lawyers who have acquired over time highly specialized expertise in particular areas of
practice covered by the legal aid plan, such as criminal law and refugee law where private fee-paying
clients constitute a smaller percentage of total users of legal services in these areas, may well continue to
provide legal aid services despite declining real legal aid rates through time. For them, writing off their
investments in specialized expertise and incurring the cost of developing new expertise, along with their
commitment to particular areas of law and particular client needs, may induce them to remain participants
in the legal aid plan. In some cases, older lawyers with excess capacity and relatively fewer fee-paying
clients may be prepared to provide legal aid services at low rates (because of low opportunity costs in so
doing), but there may be serious questions about the quality of service that they provide. On the other
hand, with respect to established lawyers providing competent legal aid services in areas of practice
dominated by legal aid clients, the legal aid plan and the governments which finance it may be primary
purchasers of legal services (Legal Aid Ontario is the monopoly purchaser of legal aid services) and
hence may be able to depress legal aid rates through time without inducing major substitution or exit
effects.

However, in our view, to endorse this approach is ultimately myopic because many students embarking
upon programs of formal legal education and then contemplating various choices among areas of
specialised legal practice following admission to the profession, may be influenced in their choice of
areas of legal specialisation by comparisons of the legal aid rate with prevailing rates of compensation in
other areas of private practice or in legal careers in the public sector. That is to say, long-term career
choices may be influenced by the opportunity costs of specialising in areas of law dominated by legal aid
clients in terms of foregone alternative career options.

Thus, in the long-run, maintaining legal aid tariff levels substantially below prevailing compensation
levels in private legal practice and in legal careers in the public sector is likely to reduce both the number
and quality of legal practitioners providing legal aid services to the most disadvantaged members of our
community.

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In discharging my mandate, I have decided to divide the issues into three broad categories: a) who should
determine the tariff (including hourly rates and hourly time and related allocations); b) how should these
determinations be made; and c) how can the certificate system be put in some state of initial equilibrium
so that future adjustments are incremental and tractable?

II. WHO SHOULD DETERMINE THE TARIFF?

In my view, the present locus of responsibility for determining the level and structure of the legal aid
tariff is completely unsatisfactory. It diffuses responsibility between LAO and the Ministry of the
Attorney General for tariff changes, such that neither institution has developed the requisite technical
capacity, on an institutional basis, to analyze trends and factors that bear on the appropriate level and
structure of the tariff. The process of tariff changes adheres to no defined time schedule and in the past
has been an episodic response to various crises in the system, including job action by legal aid lawyers.
The criteria by which proposed changes to the tariff are to be evaluated and justified are murky and
unarticulated. Because the tariff is embodied in government regulations, the process of change is
cumbersome and protracted and not responsive to the need for flexibility, innovation, and dynamism in
the administration of the tariff. In various other jurisdictions, including British Columbia, the U.K., and
most of the Australian States, the administration of the tariff is vested in a quasi-independent legal aid
agency responsible for administering the legal aid system. I recommend that such responsibility be vested
in LAO in Ontario. The present arrangement is an outmoded historical legacy from the period when the
legal aid system was administered by the Law Society of Upper Canada and where the government's
principal mechanism of control of its financial exposure under the system was its control of the tariff. It
would clearly have been irresponsible for the government to have vested in the Law Society of Upper
Canada, the governing body of the private bar in Ontario, the legal authority to determine its own tariff
rates for legally-aided services. Of course, the crisis of the early 1990s revealed that this was not a
sufficient form of control over the government's fiscal exposure for legal aid expenditures, given that the
number of certificates that could be issued under the system was open-ended. I fully accept that the
dictates of fiscal prudence require that LAO operate under fixed, although periodically adjusted, budgets
and that an open-ended, demand-driven system is simply unacceptable (and rightly so) to governments of
all political persuasions in Ontario.

However, LAO is not the Law Society of Upper Canada, and a major rationale for transferring
governance of the legal aid system from the Law Society of Upper Canada to a quasi-independent public
agency, with a multi-stakeholder board comprising a majority of non-lawyer members, was to bring a
broader set of public interest perspectives to bear on the administration of the legal aid system in the
province. Vesting the administration of the tariff in LAO does not nor should not imply, in my view, an
ability on its part, or anybody that it might retain to make determinations on its behalf, to set the tariff at
any level it pleases and simply send the bill to the government. This would be entirely inconsistent with
the premise that LAO should operate on a fixed, albeit periodically renegotiable, budget. However, the
virtues of vesting the tariff management function in LAO are several. First, internalizing tariff
management in LAO will enhance the incentives of LAO management to manage its entire budget in the
most cost-effective fashion possible, rather than, as at present, finding that 60 per cent of its expenditures
are largely outside its control. This will intensify incentives to engage in a heightened level of innovation,
both in internal administration and in alternative delivery mechanisms. Second, vesting the tariff
management function in LAO will encourage it to be more flexible, dynamic, and innovative in
experimenting with different tariff structures, e.g., block fees for some services, differential hourly rates
for different classes of services, differential hourly rates for different locations in the province, and tariffs
that encourage more holistic provision of legal services that address individual clients' problem clusters.
Third, vesting the tariff management function in LAO will enhance public accountability for the
expenditure of legal aid resources by removing, or at least reducing, ambiguities as to who is responsible
for what. Fourth, it will also encourage more timely responses to imbalances between the demand for and
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supply of legally aided services, and will clearly focus in one agency the responsibility for developing the
technical and related expertise for discharging this function effectively over time.

III. HOW SHOULD THE TARIFF BE MANAGED?

Within its overall budgetary envelope, in my view LAO should be free to change hourly rates or time and
related allocations at any time as it feels appropriate, although some form of notice and comment
procedure would seem to be appropriate in soliciting reactions from affected stakeholders before
proposed changes are put into effect. Obviously, a balance needs to be struck between flexibility and
innovation, on the one hand, and stability and predictability, on the other, so that members of the bar and
their clients are able to plan their reliance on the system with some reasonable degree of predictability.

However, given that this degree of discretion will be exercised within LAO's overall budgetary envelope,
the determination of this budgetary envelope becomes a central issue. Making the critical assumption
(which I address more fully below) that the tariff at any given point in time has been set appropriately,
then I recommend that LAO and the Ministry of the Attorney General commit to a fundamental review of
the tariff levels and structures every three years. As to how this periodic review should be undertaken has
been a matter of considerable debate in submissions I received and consultations I held with stakeholders.
Some stakeholders favour some form of binding arbitration system. I seriously doubt that such a system,
at least in unqualified form, would be acceptable to the government given that it would involve financial
exposure for the government, in terms of adjustments to LAO's budget that would be beyond its control. I
accept that at the end of the day LAO's overall budget should be set by our elected political
representatives. Moreover, in order to maintain balance between the certificate side of the system and
legally aided services provided under different delivery mechanisms, the arbitrator would have to also
arbitrate salary levels for clinic lawyers and staff duty counsel. Alternatively, separate arbitrators would
need to be appointed for these purposes. However, at this point, LAO would have largely handed over the
management of the legal aid system - which, after all, comprises principally the human resources that it
manages - to one or a series of arbitrators who, by assumption, are not as well-versed in all the moving
parts of the legal aid system and how they interact with each other as LAO is itself (or should be if it is
discharging its mandate effectively).

Variations on the arbitration proposal would entail some form of mandatory arbitration, but without the
LAO or the government being bound by its determinations. I favour a variant on this latter proposal
whereby at triennial intervals LAO and the Ministry of the Attorney General would agree on a Fact
Finder who would undertake the kind of quantitative analyses undertaken by the Holden-Kaufman Task
Force with an agreed set of comparators.

Choice of appropriate comparators is an important issue. A baseline would be intervening rates of


inflation. However, comparators should also include intervening trends in participation rates by lawyers
of different experience levels in the provision of different classes of services and different regions of the
province, as well as a survey of trends in rates charged by lawyers to cash-paying clients of modest means
for similar services. I would also focus on one comparator that to me is crucial (and has hitherto received
insufficient attention): trends in the take-up (or acknowledgement) rate of certificates issued and trends in
the elapsed time between issuance and acknowledgement, by class of service and location, which would
provide critical information on any disequilibrium between demand for legally-aided services and their
supply (and especially the elasticity of supply of legally-aided services, i.e., responsiveness to increases in
the tariff). This information is a crucial input into a rational review process. Other comparators are at best
indirect proxies for this crucial datum. The ultimate issue of interest and relevance is: is the market for
legal aid services clearing, or not?

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The time period between "application and acknowledgement" is important for at least two reasons. First,
legal proceedings tend to be time sensitive, particularly in their early stages. It is generally important to
have legal counsel as soon as possible to ensure that time limits are respected, that documents are filed in
a timely manner, and to protect against default proceedings, etc. Thus, as a general rule, it is preferable to
have legal aid certificates acknowledged quickly in order to best protect a client's legal rights.

Second, these measures are good indicators of whether it is easy or difficult for legal aid clients to find a
lawyer willing to accept their legal aid certificate. Simply put, "application and acknowledgement" data
can indicate whether or not the legal aid system is capable of providing an adequate supply of lawyers to
meet client needs. On the one hand, a short time period between applications and acknowledgements
suggests the legal aid system maintains a sufficient pool of lawyers to meet client needs. Conversely, a
long time period between applications and acknowledgements suggests that clients have considerable
difficulty finding lawyers, i.e., face substantial search costs, and that the legal aid system is not providing
enough lawyers to meet client needs.

The key findings from data provided to me by LAO are as follows:

• 79% of applications for criminal certificates are accepted; 21% are refused.
• Of the accepted applications, 67.8% of criminal certificates are acknowledged within 14
days and 81.8% are acknowledged within 30 days.
• 3.7% of criminal certificates are not acknowledged at all.

These data suggest that approximately two-thirds of criminal certificates are acknowledged in a timely
manner (less than 14 days).

• 69.2% of applications for family certificates are accepted; 30.8% are refused.
• Of the accepted applications, only 49.7% of family certificates are acknowledged within
14 days and 68.1% are acknowledged within 30 days.
• 7.9% of family certificates are not acknowledged at all.

The data demonstrate that family clients have considerable difficulty finding lawyers willing to accept
certificates. Fewer than 50 per cent of family certificates are acknowledged in a timely manner (less than
14 days). Almost 8 per cent of all family certificates are not acknowledged at all.

These data, coupled with the very high refusal rate for family applications (30.8 per cent), suggest a
significant accessibility problem for family legal aid.

It is also important to note that the data likely underestimate the time period between applications and
acknowledgements and refusal rates for family law certificates. This is because local practise in some
LAO Area Offices across Ontario is not to complete an application, or issue a certificate, if the office
believes that there are no lawyers willing to accept certificates in that area.

It is also crucial to note that we do not have time trends for these data, which are crucial for making
judgments about longer-run tendencies in establishing and maintaining a reasonable equilibrium between
demand for and supply of legal aid services and adjustments that might accordingly be required to the
levels and structure of the tariff. LAO must begin regularly collecting and reporting these data in a
systematic, consistent and reliable form.

I emphasize that in order to render the focus of the review tractable these trends would only require
analysis since the last triennial adjustment. I cannot emphasize too strongly that mandating or permitting
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the periodic review process and affected stakeholders to relitigate forever the distant past and long-run
historical trends that precede the triennial review period will destabilize the review process and render it
dysfunctional.

In order to avoid the risk of specially privileging legal aid services provided under certificates relative to
legal aid services provided through other delivery mechanisms in a mixed delivery system, which under
other recommendations in this review is likely to become more mixed through time, it is important that
the Fact Finder also examine trends in salary levels for clinic lawyers and staff counsel and recruitment
and retention problems being encountered in this context, otherwise increases in the tariff may crowd out
expenditures on other delivery mechanisms in the system. Appropriate comparators for staff lawyers also
need to be agreed to by LAO and the Ministry of the Attorney General in the terms of reference to the
Fact Finder - trends in Crown Attorney's salaries over the previous three years (smoothing for spikes) is
one comparator, but also more crucially trends in recruitment and retention.

I should note here parenthetically concerns over the impact of rising tuition levels at Ontario law schools
and concomitant debt loads borne by students on the feasibility of their pursuing careers in poverty law. I
urge all Ontario law schools to re-examine their back-end debt-relief programs to ensure that they are
sufficiently generous to render this option feasible. LAO should press the law schools on this issue.

Once the Fact Finder's review is completed, it should be published and should form the basis of proposals
by LAO to the Ministry of the Attorney General for adjustments to its budget for the next three year
rolling budget cycle. The LAO's triennial budget proposals and justifications, following the Fact Finder's
review, should also be made public so that there is full transparency and accountability for LAO's
requests and the government's response to these requests. However, I accept that at the end of the day the
Attorney General and his or her Cabinet colleagues will and should retain the prerogative of determining
LAO's overall budgetary envelope and, hence, the kind of resources it will have the capacity to allocate to
various of its activities. This is as it should be in a representative democracy. At least this decision will be
evidence-based and transparently made against the backdrop of the Fact Finder's findings.

IV. ACHIEVING AN INITIAL EQUILIBRIUM

The foregoing proposals critically assume, as I noted above, that the certificate system is in some form of
appropriate equilibrium at a given point in time and the only issue is how to maintain that equilibrium
through time through periodic adjustments to it. However, this assumption is almost certainly
unwarranted at the present time in Ontario, so that before the process of tariff management that I envisage
can be effectively implemented, the system needs to be put into some state of appropriate equilibrium. It
is demonstrably the case that current rates fall significantly below any level that could be justified by
most comparators, including a comparator as basic as maintaining the level of the tariff constant over
time in the light of inflation. As I noted above, if the 1987 base rate of $67 had been adjusted for inflation
it would have been almost $100 per hour in 2002 (and approximately $110 in constant 2007 dollars).
Hence, a base rate significantly lower than this range (perhaps with only two tiers of experience: one to
five years, and six years and above, so as to encourage lawyers with mid-levels of experience to remain
participants in the system) seriously risks further attenuating the already tenuous and diminishing
commitment of the private bar to the legal aid system and will exacerbate the unfairnesses and
inefficiencies at present in the existing tariff structure. Proposing yet further studies of these issues will be
regarded as a serious provocation by the legal aid bar and as yet one more attempt to defer its resolution
(if at all) to some future indeterminate time.

A starting point reflecting these orders of magnitude will be a bitter pill for the legal aid bar to swallow
given that it falls far below the rates recommended by the Holden-Kaufman Task Force of $105 to $140
in 2000 (or $120 to $160 in constant 2007 dollars) - which I have reluctantly concluded are not fiscally or
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politically feasible (even if justifiable in a first-best world) - but would nevertheless reflect a very
substantial increase to current rates. Moreover, for reasons I note herein, agreement on such a rate must
foreclose the possibility of re-litigating or re-debating forever past trends in the future. Periodic
adjustments would in future focus only on trends (not starting points) in the preceding three years, not the
preceding decade, two decades or three decades. Establishing a periodic review process without
establishing acceptable starting points or baselines would be akin to pushing on a piece of string, and may
indeed exacerbate existing disaffection with the system by institutionalizing three-yearly open-ended
debates of the kind that have occurred over the past three decades.

I am also acutely aware that closing the gap between the existing tariff and any defensible baseline tariff,
as well as making related adjustments to salaries of staff counsel and clinic lawyers, whether
implemented immediately or phased in over some relatively short timeframe (e.g., three years), will entail
significant additional government expenditures on the legal aid system, particularly in the context of
worrying signs of a softening economy. Moreover, these expenditures cannot be viewed in isolation from
other features of the system which I have commented on in this review. In particular, relaxing the
financial eligibility criteria for certificates will presumably significantly increase demands for certificates,
which in turn would require compensation at significantly higher levels than at present if tariff increases
are implemented. But relaxing financial eligibility criteria without addressing whether there is likely to be
an effective supply-side response to this increase in demand is a recipe for a future crisis, where
certificates are issued but lawyers are not able and willing to accept them. Moreover, addressing more
proactively issues of quality in the provision of legal aid services is in part dependent on levels of
compensation. For example, to aggressively implement some form of peer review process, even if
targeted at only legal service providers where patterns of complaints or billing irregularities suggest a
case for further scrutiny, is likely to reduce further the already tenuous levels of commitment to the
certificate system by the private bar, so that without adequate compensation for legal services provided
under certificates, the commitment to the provision of high quality services enshrined in the Legal Aid
Services Act is also seriously compromised. The legal aid system has many moving parts that interact
with each other and these must all be kept in focus when adjusting any one element in the system.

Some of the additional costs entailed in raising eligibility criteria and compensation levels for legal
services provided under certificates can no doubt be off-set by some of the service delivery innovations
that I have discussed in the previous section of this report, including encouraging (and financing) clinics
to take on some limited range of criminal law and family law matters, enhanced duty counsel, information
web sites, and lawyer hot-line services, and by LAO's commitment to productivity improvements of 1 per
cent a year over the next five years. In addition, a concerted focus on dysfunctions in the broader justice
system that generate back-end costs for the legal aid system that often could be more cost-effectively
addressed up-front also promises significant long-term cost savings (and indeed become more pressing
under these proposals). However, moving to a staff office-driven system instead of the certificate system,
on the evidence to date, does not offer significant cost savings and is thus no easy panacea.

Hence, all this said, at the end of the day there is no gainsaying the conclusion that a significant infusion
of new funds is required to put the legal aid system in Ontario on a healthy and sustainable basis going
forward. Again, it is worth recalling, in this context, the findings of the recent World Bank study that the
most valuable assets that developed countries possess are intangible assets (80 per cent of all assets) and
that these comprise primarily human capital (35 per cent) and the quality of their institutions (60 per
cent), most particularly, the quality of institutions pertaining to the rule of law. In the recent past, as a
province, we have made significant progress in enhancing investments in the human capital side of the
intangible asset equation, and it is perhaps time now to recognize that enhanced investments on the
institutional side of this equation, especially institutions bearing on the robustness of our commitment to
the ideals of access to justice and the rule of law in the province, require equal attention.

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SECTION VIII - APPENDIX A
HISTORY OF THE TARIFF SETTING PROCESS IN ONTARIO

The legal aid tariff in Ontario has always been set by the government through regulation. In the early
years, the Law Society of Upper Canada proposed changes to the tariff levels, which were then
considered by the government. As the legal aid system became more expensive, decisions about the legal
aid tariff became increasingly controversial.

When the Legal Aid Plan was established in 1967, the Law Society drafted a proposed tariff, setting the
fees "to approximate the modest fees that would be charged to a client who could pay but for whom the
payment of a larger fee might involve some hardship" (the so-called "client of modest means" test). 2 The
fee proposal was accepted by the government and issued as a regulation. The tariff established two
separate hourly rates depending on the court in which the case was to be heard and included some block
fees, which would cover certain legal matters in their entirety. Twenty-five per cent of fees were
deducted, however, as a mandatory charitable contribution by the legal aid bar. This deduction was to
reflect, in part, the certainty of payment through the legal aid system.

In 1973, the Law Society recommended an increase to the tariff to reflect changes in the Consumer Price
Index. The government agreed to the change. The tariff was increased again in 1979, and three separate
hourly rates were created, linked to years of experience in the relevant area of law. Lawyers with less than
four years of experience would be paid $48/hour; lawyers with four to ten years would be paid $54/hour;
and lawyers with ten or more years would be paid $60/hour. The change was intended to encourage more
experienced lawyers to participate in the legal aid program.

Early 1983 saw another increase, although at an amount lower than that recommended by the Law
Society. In 1983, the legislative All Party Standing Committee on Procedural Affairs recommended an
increase to the tariff and an elimination of the 25 per cent deduction of fees, arguing that the tariff no
longer provided adequate compensation. The government increased the tariff by 5 per cent and appointed
a Fact Finder to examine the tariff issue. The Fact Finder recommended a substantial increase in the tariff,
concluding that it had failed to keep pace with inflation, the increased costs of running a law practice, and
increased incomes in the law and other professional sectors. The Fact Finder also recommended a regular
review of the tariff and an impartial arbiter to resolve disputes. Over the next several years, the
government eliminated the separate hourly rates for different courts, reduced the deduction of fees to 5
per cent and increased the hourly rates to $67, $75 and $84 for the three experience tiers.

In 1992, in response to the significant expansion of eligibility criteria and resulting costs for legal aid
programs, the government began to introduce cost-containment measures, including a soft cap on billings,
progressing from 3 per cent withheld for billings between $175,000 and $225,000, to 60 per cent withheld
for billings over $350,000. In 1994, the government negotiated a fixed level of provincial funding for
legal aid as part of a Memorandum of Understanding with the Law Society of Upper Canada. This
resulted in drastic reductions to the scope of matters covered by legal aid, and also resulted in extensive
tariff cuts, with the goal being a 22 per cent reduction in the average case cost.

The hourly rate of the tariff was not changed as part of the cuts. Instead, maximum hours for each service
were reduced to the level of the average amount billed for that service. A small pool of funds was
established for discretionary payments above the maximum. In addition travel disbursements were
reduced and the payment of counsel fees for attendance in court was eliminated. Cuts were also made to
the scope of coverage for certificates generally. In 1997 maximum hours in some complex family law
cases were increased. In 1998 with the Legal Aid Plan in a surplus situation, the government, in
negotiations with the Law Society, made some enhancements to the tariff. General increases included the
elimination of the 5 per cent deduction, the creation of an administrative fee for each certificate, an
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appearance fee for duty counsel, and an additional two hours added to the overall maximums in most
matters. Additional hours were allowed for a number of specific services and coverage was expanded in
limited criminal and immigration cases.

In 1999, Legal Aid Ontario was established. Shortly afterward, in April 2000, the LAO board
commissioned an independent analysis of the tariff system. Robert L. Holden and the Honourable Fred
Kaufman were asked to examine three matters: the effect of the tariff rate on the quality and accessibility
of legal aid services, the tariff structure and alternative billing methods, and modifications to improve
tariff administration. 3

The Holden-Kaufman Report, issued in November 2000, concluded that the legal aid tariff at the time
was "wholly inadequate", and recommended instead a range of hourly rates from $105 to $140. This
range reflected both the average hourly rate charged to clients of modest means, discounted for the
absence of bad debt problems, and an updating of the 1973 tariff rate using both inflation and the increase
since 1973 in the average net hourly income of Ontario lawyers generally. 4

In 2001, LAO submitted a business case on tariff reform to the government, requesting an increase in the
tariff rate to a range of $85 to $105, based on the Holden-Kaufman Report and additional staff research
on lawyer workload, overhead and willingness to accept legal aid work. 5

Neither the Holden-Kaufman Report nor the Business Case resulted in a change to the hourly rate. In
April 2002, Ontario criminal legal aid lawyers held a day of protest - refusing to do any legal aid work on
that day - objecting to the lack of increases to the hourly rate since 1987. Protests of various kinds
continued after that day, particularly in the eastern and northern parts of the province. Some legal aid
lawyers refused to take legal aid cases at all. Others reduced time spent on legal aid work. The Canadian
Bar Association also announced that it would bring test cases before the courts intended to establish
constitutional rights to legal aid. In response, the Ontario government announced a 5 per cent increase in
legal aid rates. The reaction from legal aid lawyers was largely negative, and protests continued in some
communities for several additional months. In November 2002, the government passed the Legal Aid
Services Amendment Act, which requires LAO to consider the need to achieve an effective balance among
the different methods of providing legal aid, including the increased use of staff lawyers. At the same
time, the government committed itself to a further increase of 5 per cent, which took effect in April 2003.
Legal Aid Ontario requested another 5 per cent increase in the tariff rates in 2007. The government
adopted the increase for the stated purpose of ensuring that "a healthy roster of high-calibre lawyers
continues to be available to assist low-income Ontarians."

While the tariff rate has essentially kept pace with the cost of living since the creation of Legal Aid
Ontario, the legal aid bar has continued to be frustrated by the loss of tariff value during the years
between the 1987 base-rate increase to $67 and the 2002 increase. If the 1987 base rate of $67 had been
adjusted for inflation, it would have been roughly $97 in 2002.

SECTION VIII - APPENDIX B


THE COMPARATIVE EXPERIENCE

Canadian jurisdictions use a mix of staff and judicare models in the provision of legal aid services. Nova
Scotia, PEI and Saskatchewan use staff models, with the option of private lawyers available only for
conflict of interest cases, staffing shortages, or criminal cases in which a choice of counsel is required
under interjurisdictional agreements. Ontario, Alberta, British Columbia, and New Brunswick have
primarily judicare models. The others (Newfoundland, Quebec, Manitoba, Yukon, Northwest Territories
and Nunavut) use a combination of the two. Nearly all jurisdictions have created an organization to
administer legal aid, independent of both the government and the law society of the province or territory.
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There is little consistency in the tariffs across the country, with rates reflecting differences in the cost of
living or in government priorities. In the past, tariff rates were often set with a view to what a lawyer
could expect to bill a "client of modest means". As the volume and cost of legal services increased,
governments began to look for ways to maximize the amount of legal aid service that could be provided
within a limited budget. Tariff rates became subject to supply and demand considerations.

The method used to update tariffs varies by province. In most jurisdictions, the legal aid organization
consults with the bar, then makes a proposal to the government. The government ultimately decides
whether or not to make the changes. Quebec's legislation requires the government to negotiate the tariff
periodically (every five years or so) with the Quebec Bar (Barreau du Québec). In British Columbia, New
Brunswick, and Saskatchewan, the legal aid organization sets the tariff rates within an overall budget cap.

In British Columbia in 2002, the government cut the legal aid budget by nearly 40 per cent, resulting in
the elimination of poverty law services and a significant reduction in family law services. Tariffs were cut
at the time by 10 per cent. After a period of adjustment to the reduced budget, the B.C. Legal Services
Society was able to increase some tariffs in 2005.

Only one province has a regular tariff review mechanism enshrined in their legislation. The Legal Aid
Manitoba Act 6 provides that the management council of Legal Aid Manitoba must review the tariff in
consultation with an advisory committee every two years. The council then provides a recommendation
and explanation to the Minister. While the legislation does not require the government to accept the
recommendation, it establishes an expectation that the issue will be considered.

Alberta has recently revised its tariff structure significantly. In Alberta, Legal Aid Alberta recommends
tariff changes, which must be approved by Alberta Justice. Recent changes were made to increase
predictability in budgets as well as to ensure good outcomes for clients. Among the revisions approved
for 2008 are a consolidation of civil law categories, to allow lawyers greater flexibility in their use of
hours, and a conversion of 12 criminal law items from hourly fees to block fees. Block fees are also used
in British Columbia, Manitoba, New Brunswick, Quebec, Saskatchewan, and the Yukon. There are
competing advantages to block and hourly fee structures. Block fees can provide an incentive for lawyers
to budget more carefully and avoid wasting time. They can also provide an incentive to resolve cases
more quickly. Hourly fees, on the other hand, can be a rough mechanism of quality assurance, by
providing an incentive for lawyers to take extra care to ensure everything appropriate has been done. The
challenge for legal aid systems is in balancing incentives to assure high quality at minimum cost. In
Ontario, block fees were eliminated in 1996 and replaced with strict caps as part of the cost-cutting
measures of the time. These reduced hourly maximums in the tariff provide a similar incentive for
lawyers to work efficiently. Currently, the tariff imposes maximum hours for all services except
attendance at a preliminary inquiry or trial for most indictable offences and certain ancillary criminal
proceedings.

A variation on block fees has recently been introduced in the United Kingdom. England and Wales have
long had the most comprehensive and expensive legal aid system in the world, spending $77.67 per capita
on legal aid matters, compared with Ontario's expenditure of $27.47. Faced with rising costs, England has
sought to change the way it pays for legal aid services. In 2006, Lord Carter of Coles published a review
of the way the Legal Services Commission procured lawyers for criminal law legal aid services. Lord
Carter recommended the introduction of a number of market-based changes to procurement, with the goal
of reducing inefficiencies without reducing the quality of service.

The first change to be implemented was the replacement of England's hourly pay rates with a form of
block fees called "graduated fees", which consist of a base fee with increases tied to predetermined
proxies for case complexity. The change was intended to reward efficient practitioners and to reduce

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excessive costs associated with travel. The graduated fee scheme was based on extensive case analysis,
which found a relationship between the cost of a case and five factors: offence type, stage of resolution,
trial length, pages of prosecution evidence, and number of defendants.

The new fee scheme was intended to pave the way for the second proposed reform to be introduced in
2009. "Best value tendering" will require firms to bid for set numbers of cases within a limited
geographical boundary. This proposal is intended to encourage mergers and discourage generalist
practitioners from taking criminal cases.

Lawyers in England have strongly protested the "best value tendering" proposal, arguing that it will
discourage lawyers from taking more complex cases. Groups representing ethic minorities have brought
suit to block the changes, on the grounds that "best value tendering" disproportionately threatens
minority-controlled firms, which tend to be smaller, and the communities they serve. While the "best
value tendering" proposal has been widely criticized, there has been little objection to the graduated fee
structure.

1. See Albert Hirschman, Exit, Voice and Loyalty: Responses to Decline in Firms,
Organizations and States. Cambridge, (Mass.: Harvard University Press, 1970).
2. Holden Kaufman report, p. 9, citing the Law Society Submissions to the Fact Finder, p. 11.
3. Tariff Review Task Force Terms of Reference, Holden-Kaufman, Appendix A.
4. Holden-Kaufman, pp. 188-191.
5. LAO, Legal Aid Tariff Reform Business Case, November 2001.
6. C.C.S.M. c. L105, section 6.

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Section IX: GOVERNANCE OF THE LEGAL AID SYSTEM

I. INTRODUCTION

The enactment of the Legal Aid Services Act, 1998, largely following recommendations of the McCamus
Report, constituted Legal Aid Ontario (LAO) as a new, quasi-independent, public agency responsible for
the provision of legal aid services across the province. This ushered in a new era in the governance of the
legal aid system in Ontario, superseding the prior governance regime under which the Law Society of
Upper Canada administered most aspects of the program.

In the course of my consultations, I have heard no arguments for returning to the old governance regime,
nor have I heard any significant proposals for moving to some radically new governance regime. Indeed,
across Canada and beyond, the trend is clearly in the direction of constituting quasi-independent public
agencies to administer legal aid programs. 1 Nevertheless, this leaves open the possibility of marginal
changes in the existing governance regime that may enhance its performance. I address a number of these
possibilities below, roughly dividing the issues into two broad categories - those relating to the internal
administration of LAO, and those relating to its external relations with various stakeholders and agencies.

II. INTERNAL GOVERNANCE

a) Administrative Efficiency

Much of the first few years of the time and energies of LAO and its senior personnel were understandably
preoccupied with the daunting challenge of managing the transition from the LSUC-managed system to a
system managed by a new quasi-independent public agency. This involved multiple challenges, including
negotiating a new Memorandum of Understanding with the Ministry of the Attorney General; developing
a more rational budgetary process for controlling expenditures under fixed (rather than open-ended)
budgets; moving what had largely been a paper-based system under the LSUC into the 21st-century with
an integrated modern information technology system for processing applications for legal aid certificates
and payments thereunder; integrating, and in some cases replacing, staff from the LSUC system within
the new LAO agency; and negotiating an MOU with the Association of Community Legal Clinics to put
the clinic system on a more coherent and accountable basis. Most of these tasks have been accomplished
with admirable effectiveness, and the senior management of LAO over the past eight years deserves high
commendation for its efforts in these respects.

Recent prominent media coverage of the Wills case has left open, at least by inference, the implication
that LAO as a public agency has lost control of its finances. 2 From my assessment of LAO's internal
administration, and from more extensive reviews by others, 3 I believe that this inference is entirely
unwarranted. In the Wills case, an unusual court order required the Ministry of the Attorney General to
finance the criminal defense of a defendant who did not qualify for legal aid, leading to confusion and
ambiguity as to who was responsible for controlling what subsequently became out of control defense
legal expenditures, as between the Ministry of the Attorney General, the court ordering legal

104
representation, and LAO. I regard this case as an anomalous case, the recurrence of which is highly
unlikely, given the recent negotiation by the Ministry of the Attorney General and LAO of a protocol
governing responsibility for monitoring criminal defense legal expenditures under future orders of the
kind made by the court in Wills. Evaluating LAO's control over its expenditures more systemically
reasonably justifies the conclusion that it carefully oversees, monitors, and controls its expenditures in the
various areas of activity in which they are concentrated and moreover is subject to regular audits by the
Auditor-General. If anything, in the course of my consultations, I heard complaints from both the
community legal clinics and certificate lawyers that LAO is inclined to micro-manage its expenditures
and to require excessive documentation and justification for such expenditures. I do not have a firm view
on whether these criticisms are justified, but in any event, they point in the opposite direction of any
inference that LAO has generally lost control over its expenditures. However, there are legitimate
concerns more generally about the dramatic growth in recent years in legal aid expenditures on big
criminal trials, which concerns warrant attention (as I comment further below).

Beyond these issues, there is no doubt room for further improvements in internal administrative
efficiency. Streamlining further the certificate application and granting processes through more extensive
and decentralized use of information technologies and simplified eligibility criteria would be highly
desirable and would help mitigate the phenomenon, strikingly observable in many criminal cases, of
multiple appearances and adjournments, in many cases pending decisions by LAO on the granting of
certificates. The LAO, in its submission to me, claimed that it was committed to realizing
efficiency/productivity gains of 1 per cent per year over the next five years (almost $20 million) through
various improved management strategies, including:

• Telephone advice services;


• The Simplified Online Application Portal (SOAP) and process changes;
• Increase coordination of clinic services;
• Improved management of "other civil" certificates;
• Paperless project;
• Provincial office relocation;
• Content management system and Source redesign;
• Maximize use of space and staff through office co-location or relocation;
• Financial eligibility test revision and process changes; and
• Reduce bad debt expense on Client Contributions.

This is a commitment that LAO should be held to, as I comment further below.

Beyond pursuing aggressively these internal efficiencies, there are several other areas which I believe
require more attention in the future than they have received in the past.

b) Innovation in Service Delivery Modalities

As discussed much more extensively in Section VII of this review, I believe that LAO needs to be much
more innovative in experimenting with various service delivery modalities that advance two of the key
objectives that I have noted earlier in this report: first, fuller integration of legal aid services by moving
from a silo-based delivery system to a system that involves more single entry points or one-stop forms of
service provision, and second, ensuring that a significant range of forms of legal assistance are available
on a non-means-tested basis to all Ontarians. Innovation and experimentation, of course, are not

105
guaranteed always to produce successes. If innovation and experimentation are only producing successes,
there is not enough of it. Where disappointments or failures occur, these should be frankly acknowledged,
not excoriated, and the agency should press on other margins.

c) Innovation in Tariff Structures

Second, if, as I have proposed above, the responsibility for managing the legal aid tariff for the certificate
side of the system is remitted in future to LAO, this will call for an innovative and experimental approach
to determining the levels and structure of the tariff in various contexts in order to elicit the desired nature,
quantity, and quality of services, whether this involves in some cases experimenting with block fees,
setting different hourly tariffs for different classes of services to address supply and demand imbalances,
or setting different tariffs for different locations (again, to redress supply and demand imbalances), or
structuring the tariffs in some cases to induce a more holistic response to individual clients' needs. In light
of the increasing emphasis in the justice system on early resolution, LAO should likewise consider how
the structure of the tariff promotes this goal, by testing the issuing of certificates for mediation, settlement
conferences or more pre-trial work, particularly for family law matters.

d) Quality Assurance

While LAO has made commendable progress in introducing significant forms of quality control in the
system, in particular by establishing criteria for qualifying as members of the various LAO legal aid
service panels (e.g., criminal, family law, and immigration law), in important respects these forms of
entry or input controls do little, in themselves, to address issues of ex post competence. While LAO does
maintain a complaints processing function, this appears not to be well-communicated to clients, nor is it
clear to me exactly what process is followed once LAO receives such complaints. In this respect, there
remains significant ambiguity as to the relative roles of LAO and the Law Society of Upper Canada in
disciplining legal service providers under the various legal aid programs for which LAO is responsible.
While it may well be appropriate for LAO simply to refer more serious complaints of egregious
misconduct to the Law Society of Upper Canada for investigation and, if appropriate, disciplinary action,
especially now that the Law Society of Upper Canada has adopted a more proactive post-entry quality
assurance regime, 4 at the very least LAO needs a well-defined process by which lawyers who have been
recognized previously as qualifying for membership on the various LAO certificate panels can be
removed from these panels, with any further action then remitted to the Law Society of Upper Canada. In
this respect, while I do not recommend, at this time, the highly proactive, system-wide, and costly form of
peer review of legal aid service providers that has recently been initiated in the U.K., a more targeted
form of peer review by LAO may well be warranted, where a pattern of client complaints or billing
irregularities suggest a need for further scrutiny of a legal aid service provider's legal aid files, again with
a view to re-evaluating whether such providers should remain on an LAO panel and whether referral of
the case in question to the Law Society of Upper Canada for further investigation and possible
disciplinary action is warranted. Obviously, any such more institutionalized complaints process cannot be
confined only to legal aid certificate lawyers, but must also extend to complaints about lawyers and
licensed paralegals in the clinic system and duty counsel. A memorandum of understanding between
LAO and the LSUC on various aspects of these quality assurance issues would help resolve ambiguities
as to respective spheres of responsibility.

With respect to the clinic system more generally, the clinics have resisted efforts by LAO to introduce
any system-wide form of quality assurance. This is obviously a sensitive issue. On the one hand, the
clinics, each governed by their own community-based or client-based boards, set their own priorities, and
are, generally, strongly committed to their own institutional autonomy, and moreover their very different
mandates, priorities, and client groups defy any one-size-fits-all attempt to impose a common output-
oriented performance template on them. On the other hand, it defies credulity that all eighty clinics (any
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more than eighty organizations of any kind) are all operating at optimal effectiveness and efficiency, and
thus LAO has a legitimate responsibility in ensuring that monies allocated to the various clinics are being
effectively spent. There are enough similarities across functions and client groups with respect to many of
the clinics that comparisons are possible, not with a view (except in extreme cases) to punitive measures
such as termination or reduction or withholding of funding, but rather with a view to corrective or
remedial measures being taken. Thus, there seems ample room for middle-ground quality assurance
strategies with respect to the clinic system.

e) Big Case Management

LAO's big case management program (BCM) is designed to deal with large criminal cases expected to
cost more than the legal aid tariff maximums. The BCM program aims to contain costs by subjecting "big
cases" to additional management oversight by way of case management procedures and budget setting.
Any case that is expected to cost $20,000 or more in fees and disbursements (or $30,000 for cases
involving first or second degree murder) and any case with multiple accused where the collective fees and
disbursements are expected to exceed $50,000 are subject to the BCM program. Under the program,
defence counsel are required to attend a case management meeting with an LAO area director for the
purposes of setting a budget for the proceeding. These thresholds and some elements of the budget setting
procedure are now set out in regulation. 5 In recognition of the growing phenomenon of "mega-trials",
LAO created an additional layer of scrutiny for the most expensive cases in the BCM Program. Since
2001, cases that are expected to cost in excess of $75,000 are referred to the Exceptions Committee for
review before a budget is set. The Exceptions Committee comprises prominent, experienced criminal
lawyers who assist LAO by reviewing the nature of the case and level of complexity and recommending
an appropriate budget. Exceptions Committee members provide their time and services pro bono.

Over the years, the cost of big cases has increased steadily, reaching $24 million per year in 2006-07. The
BCM Program has become the greatest pressure on LAO's criminal certificate budget at 22 per cent, but
represents only 7 per cent of LAO's budget as a whole. The most expensive cases - those referred to the
Exceptions Committee - represent 1.5 per cent of the total LAO budget. The number of cases in the BCM
Program is also relatively small compared to LAO's entire criminal caseload, averaging approximately
1500 cases open at any point in time and 500 completed per year.

LAO's BCM Program estimates for the 2007-08 fiscal year are as follows:

Total % of total No. of % of Average case


Fiscal 2007-08
Cost($M) budget certificates certificates costs*

LAO overall
350
budget

107
Certificate
175 50 110351 100 1,734
budget

Criminal
certificates 75 21.4 66800 60.5 1,288
(excl BCM)

Big Case
Management 25 7.1 1500** 1.4 39,206
Program

"Ordinary Big
20 5.7 1000** 0.9 26,160
Cases"

Exceptions
Committee 5 1.4 500** 0.5 71,125
Cases

Guns and
33,466
Gangs

Other cases 71,740

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Mega Cases 249,041

* Based on rolling 12 months to December 2007. Case costs for BCM based on the 517 cases completed
between December 2006 and December 2007.
** Based on average of number of BCM certificates annually.

The following is a further breakdown of the certificates, by completed case cost, for the 517 cases that
were completed between December 2006 and 2007.

Cost and Number of Cases


over $250,000- $100,000- $75,000- $50,000- $25,000- under
$500,000 500,000 250,000 100,000 75,000 50,000 $25,000
1 7 19 26 53 153 255

Thus, the data show that the average criminal certificate case (excluding BCM cases) costs $1,288, while
the average ordinary BCM case costs $26,160 and the average Exceptions Committee case costs $71,125.
Of the $24 million spent on BCM cases in 2006-07, ordinary cases cost $19 million and the Exceptions
Committee cases cost $5 million, with half of that total accounted for by the so-called mega cases.

In the course of my consultations, several groups expressed concern that these huge expenditures were
diverting resources from other legal aid clients and services. Two groups, the Ontario Bar Association
and the County & District Law Presidents' Association, suggested that big cases be funded outside the
legal aid system entirely. I appreciate this concern. However, such an idea is contrary to some of the
broader suggestions I make elsewhere in this report regarding the importance of having a single body be
responsible and accountable for all of the various parts of the legal aid system. While not a large part of
the overall legal aid budget, the size of the expenditures on this relatively small number of cases does
warrant concerted attention by LAO.

It is apparent that not only are big cases growing in number, but that certain types of cases (e.g. guns and
gangs) are becoming disproportionately more expensive. The number of cases with multiple co-accused is
also a factor in the number of certificates issued for big cases. For example, the number of accused issued
a certificate under BCM has more than doubled between 2002-03 and 2006-07, from 515 to 1048.

These trends have drawn the attention of both LAO and the provincial government. As part of the new
$51 million in funding for legal aid referred to earlier in this report, the government provided an
additional $15 million for the Big Case Management program to ensure demand for coverage in complex
and costly criminal trials does not compromise other services. LAO has also initiated measures to
strengthen oversight and improve accountability in the management of big cases.

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For example, it has recently instituted new accountability policies, requiring budget sign-off and approval
at the Vice President level for all cases that are referred to the Exceptions Committee. Area Directors will
have authority to approve budgets for non-Exceptions Committee cases and to approve budget increases
when there have been unforeseen developments in a case. If the budget increases are significant, approval
of the Vice President is required. LAO has also been working with defence counsel who represent co-
accused in multiple-accused BCM cases to encourage them to consider options to reduce work time and
duplication where several lawyers are reviewing large amounts of disclosure. In some cases, electronic
sorting programs have been purchased or arrangements have been made whereby one lawyer carries out
the initial review and sorting to reduce the time spent on this task by individual counsel for other co-
accused. Recently approved LAO policies designed to reduce the number and cost of change of solicitor
requests are another important step forward. Frequent changes in counsel mid-stream not only cause
significant delays, but are extremely costly to LAO and all of the other justice system participants. In
accordance with these new policies, where a change of solicitor request succeeds, outgoing counsel will
be required to pass on a meaningful and usable work product to incoming counsel. Finally, LAO has
approved a proposal to create a more structured process for Exceptions Committee meetings, with
stronger senior staff support and analysis and better decision-making guidelines for Exceptions
Committee members. I understand that Exception Committee members are highly regarded by the
defence counsel who appear before them and that they act with professionalism and integrity in carrying
out their role. LAO data show that the Exceptions Committee recommends budgets that are, on average,
nearly 50 per cent lower than what is proposed by counsel appearing before it. Exception Committee
members provide a valuable service, in the public interest, for no fee. I believe some form of
remuneration may be appropriate. Given the levels of funding outlined at the beginning of this section, I
also believe it appropriate that LAO senior management be more closely involved in the Exceptions
Committee process with clearly defined levels of authority for the approval of budgets. LAO may also
wish to consider whether the Exceptions Committee could benefit from the expertise of other disciplines
such as auditors or public accountants.

It is sometimes argued that the length and cost of some of the more complex cases is attributable to the
inexperience or unprofessionalism of defence counsel. 6 The Criminal Lawyers' Association (CLA)
suggested to me that a low hourly tariff leads to more junior counsel taking on legal aid cases, as more
senior counsel are reluctant to devote their practices to a single long trial. This is then said to result in
cases taking longer to resolve, particularly for complicated cases such as criminal megatrials. Justice
Moldaver asserts that many trials have been unduly lengthened by frivolous arguments which violate
counsel's duty to the court. The County and District Law Presidents' Association and the Criminal
Lawyers' Association both recommended the creation of an elevated hourly rate, to encourage more
senior counsel to take on these complex cases.

I do not doubt that the experience of counsel contributes to a smooth running trial. This point was also
made to me by the Crown Attorneys I consulted. LAO data on this issue, however, do not support the
contention that senior lawyers do not take on big cases. I note also LAO's panel standards for "Extremely
Serious Criminal Matters" which require a minimum of five years of 100 per cent criminal practice in
addition to significant criminal trial experience in a number of areas, including jury trials, complicated
voir dires, and contested Charter applications. On the basis of the data, I am unable to say whether a
subset of this panel with a more rigorous set of criteria for those dealing with Exceptions Committee
cases, or perhaps mega-cases, is warranted, but it may be something for LAO to consider. As with all
panel standards, these do assure a certain level of experience at the entry point. As I note above in the
Quality Assurance section however, panel standards in and of themselves do little to address issues of ex
post competence. Similarly, I am not persuaded that an elevated tariff specifically for these big cases can
assure the participation of the most competent and most experienced counsel.

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Overall, it seems to me that the big case management program has worked quite well, but is facing
increasing challenges in dealing with the biggest and most complex cases. The more recent steps taken by
LAO to enhance accountability and management, noted above, while appropriate, appear strongly
focused on the front end. LAO has not yet instituted mechanisms to monitor the progress of a case as it
moves forward, to alert it to problems that may be arising, to enable it to respond to problems as they
occur, and importantly, to review the conduct of a case once it has been completed. LAO must have a
much stronger role in the process beyond setting a budget at the beginning and paying the accounts at the
end. In order to ensure that this monitoring function is properly met, LAO should consider conducting on-
going analyses of cases, routinely attending at judicial pre-trial meetings and other important events in the
proceeding, and requiring regular detailed reporting from counsel on the status of the case.

In its submission to me, LAO noted some movement in this regard. It has recently established an
"Expectations of Counsel" policy and protocol, requiring counsel working on big cases to provide regular
reports, estimates and up to date billings, and to keep the legal aid area director informed of all
developments that may affect the cost of the case. LAO is also putting in place the requirement for a
separate budget for pre-trial motions in a big case, which have been identified as a major cost factor in the
BCM program. As part of the budgetary approvals, pre-trial motions will also have to meet a merit test. In
order to show that a motion is a justifiable expenditure of public funds, it must have a reasonable prospect
of success and be likely to be proceeded with by a private fee-paying client. These are both sound
initiatives and I understand that LAO is considering further mechanisms to enhance its ability to monitor
cases during the proceedings, an idea I fully support.

In the Quality Assurance section I recommend, more generally, that LAO develop a well-defined process
for removing lawyers from panels and that it enter into a memorandum of understanding with the law
society with respect to complaints about lawyers. Both recommendations apply equally to the BCM
program. With respect to a more targeted peer review, which I also propose in the previous section, it
may be that Exceptions Committee cases are well suited to such a process. The Exceptions Committee is
already a form of peer review and, as noted, is well respected. Its role could be expanded to include an
evaluation function - at various stages of a proceeding or at the end of the trial - that would review the
conduct and outcome of the case. If there were a case to be made for an elevated hourly tariff or premium
for big cases, perhaps it would be better instituted at the evaluation stage so that it functions not as an
inducement to attract the best and most experienced counsel, but as a reward for effective and competent
case management. The premium could be awarded at LAO's discretion, if recommended by the
Exceptions Committee.

Finally, I note that the Attorney General has recently asked the Honourable Patrick LeSage, Q.C. and
Professor Michael Code to lead a review of large and complex criminal case procedures, and to
recommend solutions to move large, complex cases through the justice system faster and more
effectively. One area of inquiry will be the effective use of justice system resources. I expect that the
Review will therefore consider the role that LAO may play in achieving this objective.

f) An Access to Justice Research Function

The McCamus Report envisaged a major role for LAO as a sponsor of research on access to justice
issues. 7 The Report offered several reasons for this: First, while reforms to the legal aid system,
including shifts in the mix of delivery models, have some potential for realizing various efficiency gains
in the utilization of legal aid services, in the Report's judgment these gains are likely to be quite limited
relative to those to be realized by improving the efficiency and efficacy of the underlying justice system
through appropriate substantive and procedural reforms. Second, the legal aid system occupies a unique
vantage point from which to view the operation of the various elements of the broader justice system.
Third, by assigning a central priority to this change agent role, the new legal aid system would acquire a

111
new legitimacy and rationale with the general body of residents and taxpayers in the Province of Ontario
beyond its obvious response to needs and rights, so that taxpayers can properly view expenditures on
legal aid as, in part, an investment in the quality of justice in the province for everyone. Fourth, the
symbiotic relationship between the legal aid system and the broader justice system requires emphasis in
another respect: many of the reforms of the broader justice system can work effectively only if the parties
are legally represented.

I think it is fair to say that the LAO has done little of consequence in the research domain, beyond
commissioning evaluations of the Criminal Law Offices. In part this has been a function of the agency's
preoccupation with managing various aspects of the transition from the old to the current regime (which I
have noted above). LAO has recently signalled an interest in moving in this direction with the
appointment of a Director of Strategic Research. It is also the case that one of the most progressive legal
aid agencies elsewhere in the world, the U.K. Legal Service Commission (through its Legal Services
Research Centre), has assumed major research responsibilities, through the publication of evidence-based
empirical research on various impediments to access to justice, and views this as one of its vital roles.

In the Ontario context, it seems uncontentious, at the present juncture, that LAO should undertake a
significant research function with respect to exploring the modalities of alternative service delivery
mechanisms (which it has largely not done to date). More controversial is the notion that it should
sponsor research on aspects of the broader justice system and dysfunctions in it that may create
impediments to access to justice and raise the costs of legal aid provision by applying expensive band-
aids at the backend of processes that would, in a first-best world, be reformed at the front end. While,
perhaps, the appropriate institutional division of responsibility for the research function with respect to
access to justice issues was insufficiently refined in the McCamus Report, and while I accept that it would
be inappropriate for a publicly funded agency such as LAO to act as a gadfly exposing dysfunctions or
infirmities in the broader justice system and acting as agent provocateur in lobbying efforts to reform
these dysfunctions or infirmities, these concerns do not disqualify it from playing a constructive role in
such research initiatives. As I have noted earlier in this review, LAO oversees a decentralized system of
legal aid service provision that is, at least potentially, an enormously valuable source of intelligence about
what is working well or badly elsewhere in the justice system. Mechanisms need to be developed
whereby sources of potential intelligence can be tapped and brought to the attention of the Ministry of the
Attorney General. In some cases, it may be appropriate for the Ministry of the Attorney General and LAO
jointly to sponsor research on actual or perceived problems in different elements of the justice system.
Comparative experience suggests that reform-oriented research on aspects of the justice system that does
not enlist the active participation of participants in these institutions in the research and reform
formulation process, but rather conscripts them after the event in the reform-implementation process, are
often unlikely to be successful. 8 It is worthwhile reminding ourselves of successful initiatives of this
kind in Ontario. For example, the concept of Unified Family Courts (UFC) was first embarked upon as a
pilot program in Hamilton and was widely viewed as so successful as to warrant extending it to many
other parts of the province (although regrettably this process of expansion remains an unfinished project,
due to an apparent lack of commitment by the federal government to allocating appropriate resources to
the endeavour).

The McCamus Task Force Report noted many areas of the justice system, including most prominently the
criminal justice system, family law proceedings, and immigration proceedings, where dysfunctions in
existing systems had been brought to its attention along with various proposals for reform by parties with
intimate experience in these systems. While the Task Force did not attempt to evaluate the soundness of
these proposals, it did note that there was no dearth of ideas as to how to improve the overall functioning
of the justice system. Such ideas can often be experimental in nature and need not, and probably should
not, involve grand system-wide schemes such as the largely unsuccessful Integrated Justice Program
previously embarked upon by the Government of Ontario.

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Whatever the appropriate institutional mechanisms for promoting this kind of evidence-based research
into the functioning of the broader justice system, three things are clear to me: 1) not nearly enough of
this research is currently being undertaken; 2) LAO has a constructive and important role to play in such
research, at the very least as a kind of early warning system of failures in the system and more
ambitiously as a partner with the Ministry of the Attorney General and other justice system partners
(including the recently reconstituted Law Commission of Ontario) in sponsoring relevant research; 3)
such research should be routinely placed in the public domain. The sponsorship or co-sponsorship of a
publicly accessible Access to Justice Working Paper Series, where evidence-based research can be
reported and disseminated, so stimulating broader and better informed public discussions and debates
relating to the ideals of access to justice and the rule of law in the province, would be an invaluable
initiative.

g) The Role of the Board at LAO

I come now to the issue of the role of the board of LAO as the ultimate decision-maker with respect to the
administration of the legal aid system. While, as I have noted above, I did not hear any case for radical
overhaul of the present internal governance structure of LAO, nor do I believe that there is such a case, I
believe there is room for improvement in board structure and appointments. However, what I do not think
would be a good idea, although it was pressed on me by various stakeholders with whom I met, is a
constituency-based board where various major stakeholders in the system would be assigned a certain
number of seats on the board and would either appoint or elect their own representatives to these seats or
would provide the Attorney General with a list of names for these seats from which he or she would be
required to choose. First, a constituency-based board would inevitably entail endless and acrimonious
wrangling as to who should be entitled to what seats on the board in designing the initial constituency-
based board structure. Second, it is crucial that the board adopt a broad client-based public interest
perspective on its mandate, and a constituency-based board is likely to militate in exactly the opposite
direction of encouraging parochialism in the promotion of various constituency interests. At present, the
Attorney General appoints five board members from a list provided by the Law Society of Upper Canada.
Apparently, the practice has developed of the Law Society of Upper Canada supplying to the Attorney
General three names for every vacancy in the five board seats assigned to the Law Society of Upper
Canada. The Attorney General appoints the other five board members at large, subject only to a general
injunction in the Legal Aid Services Act that the Attorney General must ensure that the board has
knowledge and experience in:

• Business management;
• The operation of courts and tribunals;
• The operation of clinics; and
• The special legal needs and attendant social circumstances of low-income individuals and
disadvantaged communities.

While some parties with whom I met suggested that it was anachronistic that the Law Society of Upper
Canada have the prerogative of nominating the potential appointees for half the members of the board, I
am not persuaded by this view. It is crucial that the commitment (already attenuated) of the practicing
legal profession to the legal aid system be maintained and, indeed, enhanced in the future, so that
ensuring that the practicing profession is well-represented on the board seems to me to advance this end,
especially if the Attorney General is given significant latitude (under current practice) as to whom he
appoints from the Law Society's proposed list of nominees. As to the appointments at large that the
Attorney General is statutorily mandated to make, my impression is that the quality of appointees, while
generally strong, has been somewhat uneven. In particular, I note that the LAO board has never had a
member with substantial senior management experience in the public or private sectors in managing large
113
multi-million dollar expenditure programs. This seems to me to be an unfortunate deficiency (in contrast
to the U.K. Legal Services Commission, where such appointments have become routine and are widely
recognized as invaluable). I also note that there has perhaps not been a systematic enough focus on
ensuring adequate representation of demand-side (as opposed to supply-side) interests and perspectives
on the board. Here, the addition of senior representatives of agencies such as United Way may provide an
invaluable additional perspective. As well, if the case for greater integration of legal and social services as
they relate to low-income Ontarians is accepted, perhaps a senior representative of the Ministry of
Community and Social Services, which is responsible for other social programs that relate to low-income
Ontarians, would provide a valuable additional perspective. I note also that it has been brought to my
attention that sometimes the Ministry of the Attorney General has not always been able to make timely
appointments to replace board members whose terms have expired or who have otherwise retired or
resigned from the board.

To address these various issues, I believe it would be productive for the Attorney General to consider
appointing an Advisory Committee on LAO board appointments that might comprise the Deputy
Attorney General, the Assistant Deputy Attorney General with special responsibilities for legal aid, the
Chair of LAO (except where his or her replacement was an issue), and perhaps a retired and distinguished
judge, which would periodically issue public invitations for suggestions or nominations for board
appointments and would, in addition, proactively solicit the interest of individuals that would offer the
board distinctively valuable perspectives. The Advisory Committee would maintain a bank of suitably
qualified potential appointees so that when vacancies arose a search or nomination process would not
need to be undertaken ab initio. The Advisory Committee might then propose a number of names to the
Attorney General with brief assessments of the individuals' qualifications, leaving the Attorney General
with substantial scope to choose from amongst qualified nominees, including nominees that he has
proposed to the Committee. Strengthening the board in these various ways will be particularly important
if, as I have proposed, the tariff management process is vested in the board, in addition to its current
responsibilities for managing the allocation of resources across the legal aid system.

h) Transparency and Accountability

I address briefly one final issue: whether the operations and decision-making functions of LAO are
sufficiently transparent and accountable in terms of contemporary precepts of good public administration.
First, as I have noted, the Attorney General is ultimately responsible for all board appointments. Second,
LAO must publish an annual report setting out its activities for the year and its financial statements,
which are subject to audit by the Auditor General. Third, LAO negotiates periodically a five-year
Memorandum of Understanding (MOU) with the Ministry of the Attorney General. The MOU requires
the Corporation to be accountable for the expenditure of public funds and for meeting its mandate by
providing the Attorney General with:

• annual business plans;


• multi-year strategic plans;
• an annual statement of LAO's policies and priorities for legal aid services;
• an annual statement of LAO's investment policies and goals;
• meeting agendas; and
• performance standards and any other matter required by the government.

LAO must also provide the Attorney General with quarterly financial reports on the state of its
contingency reserve fund. Fourth, LAO is subject to a three-year rolling budgetary process with the
Ministry of the Attorney General, where it must submit its proposed budget for approval each year.
114
Finally, in the event that the Attorney General forms the view that the board of directors is failing to
discharge its duties, he or she has powers under the Legal Aid Services Act to disband the board and
appoint an Administrator.

It is not clear to me that additional forms of transparency or accountability are appropriate. I briefly raised
in discussions with some groups the possibility of amending the Legal Aid Services Act so as to provide
the Attorney General with a formal public directive power of the kind that exists with respect to some
other public agencies (mostly regulatory agencies), where the Minister responsible can issue a public
directive, tabled in the legislature and typically subject to legislative override, directing the agency to
pursue certain policy objectives. This idea seemed to elicit no enthusiasm or support from any quarter,
and hence I do not pursue it here.

III. EXTERNAL GOVERNANCE

LAO interacts, on a regular basis, with a number of important external agencies or constituencies. I
briefly review some of the more important of these relationships.

a) The Community Legal Clinic System

As noted earlier in my review, there are now 80 legal aid clinics in the province, including 18 specialty
clinics. While it is common to refer to these as the "clinic system," there is some debate as to how
coherent an overall system they in fact constitute. 9 Whether there is an optimal distribution of these
clinics across the province geographically, and whether there is an optimal range of specialty clinics with
appropriate mandates require ongoing evaluation, and cannot simply be assumed as the optimal outcome
of a number of incremental or ad hoc decisions made in the past. More generally and fundamentally, there
is a question of whether the clinics in fact add up to a coherent structure for the delivery of poverty law
services in Ontario. Each clinic sets its own priorities through locally elected boards of directors and the
clinics generally are strongly protective of their institutional autonomy. This has led to significant
tensions with LAO. Clinics tend to complain of micro-management by LAO, of excessive reporting and
accountability requirements, intrusive efforts to impose quality assurance programs on the clinics, and
insufficient appreciation of the importance of clinics, through their local governance structures,
determining their own priorities. LAO, on the other hand, is concerned that it would not be a responsible
discharge of its statutory functions to simply write cheques to the clinics on a periodic basis and assume
that the money is being well spent; that just as with the certificate system, some baseline forms of quality
assurance are appropriate; and that locally-determined priorities for the clinics should nevertheless add up
to a coherent service delivery mechanism that is not only coherent within the constellation of services
offered by the various clinics themselves, but with more strategic objectives for the various components
of the larger mixed legal aid delivery system that has evolved in Ontario over the past several decades
(albeit in a somewhat ad hoc fashion). Determining where the clinics fit in a broader strategic conception
of the legal aid system is likely to become an even more significant challenge in the future if my
recommendations (developed earlier in this review) are accepted, which would entail a stronger focus on
both service integration and the provision of some range of legal services on a non-means-tested basis to
all Ontarians. In pursuing both of these objectives, the clinics become a critical building block for this
more expansive conception of legal aid services.

Early in the life of LAO, LAO negotiated a Memorandum of Understanding with the Association of
Community Legal Clinics of Ontario, which forms the basis of the relationship between LAO and each
clinic in the system. However, this MOU follows a standard template and may not be well adapted to the
distinctive role of particular clinics in the system. While under the Legal Aid Services Act, LAO is
empowered to impose conditions on grants to clinics, to the extent that such conditions may be viewed as
incursions or constraints on local autonomy in determining service priorities, unilateral, top-down, or
115
command-and-control type imposition of such conditions by LAO is likely to be a source of serious
friction with the clinics. Hence, what seems to be required is an intensive, ongoing dialogue between
LAO and the Association of Community Legal Clinics, and probably individual clinics, as to their role in
a broader strategic vision of the legal aid system as a whole. Even though such a dialogue may at times be
tense, I do not see how it can responsibly be avoided by either LAO or the clinics themselves.

b) Student Legal Aid Services Societies (SLASS)

During the 2006-07 fiscal year, 985 of the nearly 3,800 law students enrolled in the six law faculties in
Ontario participated in the SLASS program. The six student legal aid clinics in the province complain,
with some justification, that they are viewed as minor or peripheral features of the legal aid system in the
province, and have sometimes been treated less favourably in terms of budget allocations than community
legal clinics more generally, despite their dual and time-intensive role as service providers and teachers of
the next generation of legal aid lawyers, government officials, judges, politicians, and academics. In
addition, the SLASS complain, again, with some justification, that their leadership role in promoting a
broader integration of legal aid services that might be extended more generally throughout the legal aid
system, has been insufficiently appreciated by LAO. Nurturing this relationship between LAO and
SLASS in developing a more strategic appreciation of where SLASS fit into the broader landscape of
legal aid services in the province, both at present and in the future, would seem an important task for
LAO going forward. At the very least, LAO should not treat SLASS less favourably than the clinics in
budgetary allocations; a modest annual grant to enable senior personnel from the SLASS to meet and
discuss best practices and common challenges would also recognize their unique role in the legal aid
system.

c) Pro Bono Law Ontario

Pro Bono Law Ontario (PBLO) is a private, not-for-profit organization, led by senior judges and litigation
counsel, that was founded about 8 years ago and which seeks to enlist the voluntary participation of
lawyers in private practice in providing principally civil legal services against relatively relaxed and
flexible eligibility criteria to individuals involved in civil claims in small claims court or the Superior
Court. To date it has launched a series of relatively small-scale but impressive pilot programs in these
areas entailing participation by lawyers in large law firms, principally in Toronto, whose firms commit to
provide these services on a pro bono basis. LAO is partnered with PBLO in some of these initiatives,
suggesting the potential for an even more ambitious set of partnerships or joint ventures in the future,
particularly in the civil litigation area which, outside of family law and poverty law matters handled by
the clinics, largely now falls outside the scope of the legal aid system. More strategic leveraging of LAO's
resources through partnerships with non-profit and community organizations like PBLO seems a
productive direction for LAO to explore in the future.

d) The Law Foundation of Ontario

The Law Foundation of Ontario (LFO), under its constituting statute, is required to remit 75 per cent of its
revenues each year to LAO. These revenues are generated from interest on lawyers' trust funds and hence
are a function of the volume of economic activity in the province and prevailing interest rates. Hence, this
source of revenue exhibits considerable volatility, and in recent years has ranged from $20 million to $50
million a year. This has sometimes led LAO to making significant and abrupt cuts in expenditures mid-
year with respect to the issuance of certificates in the light of shortfalls in forecasted revenue receipts
from LFO. These abrupt changes in policies are undesirable from the perspective of both clients and
service providers. LAO complains that the LFO is not forthcoming with its internal revenue forecasts.
The LFO complains that LAO has not either adopted its own revenue forecasting and smoothing model
or, alternatively, relied on broader forecasting models developed within the Government of Ontario.
116
Clearly there is room for a more collaborative relationship in developing some form of financial
forecasting model (as the LAO recognizes in its submission to me).

Apart from forecasting revenues from this source more accurately, of course the other alternative for
LAO is to maintain a contingency reserve fund as a cushion against short-term revenue fluctuations. At
present, LAO maintains a contingency reserve fund of about $20 million. Given the extent of the
volatility in revenues received from the LFO in the past, it may be that this reserve fund is inadequate as a
cushion against fluctuations in revenue from LFO, let alone fluctuations in demand for certificates.
Demand for certificates goes up in economic downturns, while revenues from the LFO go down (and
hence move against each other). These issues require more serious attention from LAO, going forward,
than they have received in the past.

e) The Law Society of Upper Canada

The Law Society of Upper Canada (LSUC), as the regulator of the legal profession in Ontario, plays a
number of important roles in shaping the provision of legal services to the citizens of this province. Apart
from its role in nominating five members of the board of LAO, other policies which it pursues have a
direct impact on the operation of the legal aid program. I have noted above that the LSUC is primarily
responsible for administering the disciplinary system of the legal profession and that in this respect there
are undesirable ambiguities, with respect to legal aid services provided by lawyers, as to the respective
roles of LAO and the LSUC in maintaining appropriate quality standards in the provision of these
services. These ambiguities need to be resolved at an early stage going forward, perhaps through
negotiation of an MOU between LAO and the LSUC. In addition, the LSUC has recently assumed
responsibility for regulating paralegal personnel in the province, including the licensing of new
paralegals. Paralegals are an important current source of legal assistance in the provision of legal aid
services and it is incumbent on LAO and the LSUC jointly, going forward, to ensure that all potential
opportunities for full utilization of the invaluable human resources they offer are maximized.

f) Ministry of the Attorney General

I have noted earlier in this review various critically important points of interaction or intersection, actual
or potential, between LAO and the Ministry of the Attorney General - in particular, with respect to
accountability mechanisms and in terms of research responsibilities. However, the most critical
relationship is the financial relationship between LAO and the Ministry of the Attorney General and,
through the Ministry of the Attorney General, the Cabinet and the Government of Ontario. If, as I have
proposed, the tariff management function is vested in LAO, this relationship becomes even more critical.
I am assuming, for the time being at least, that financial eligibility criteria and adjustments thereto will
remain vested with the Ministry of the Attorney General and the Government of Ontario, as it is for other
means-tested social programs, although this does not and should not preclude a more rational process for
adjusting these criteria on a regular basis and for serious input from LAO into that process.

In terms of adjustments to eligibility criteria, tariffs and compensation for staff lawyers, these might be
reviewed on a three-year cycle, leaving other adjustments to be dealt with in annual budget submissions. I
believe that in the interests of transparency and accountability, both of LAO and of the government,
following triennial reviews of eligibility criteria, tariffs and staff salaries, the business case presented by
LAO for additional expenditures should be made public so that the citizens of the province can evaluate
whether the government's response to the case is appropriate or otherwise. In order to narrow the range
for annual negotiations over budget increases, an overall commitment by the government to at least
maintain the level of the current budget in real terms over a three-year cycle by increasing it through
appropriate inflation adjustments, minus 1 per cent to reflect LAO's promised productivity gains, would

117
then cast the burden on LAO to justify the case for increases beyond this level in terms of changes in the
demand for or supply of covered services, or proposed service innovations.

These annual inflation adjustments to LAO's budgetary envelope would further narrow the range of
factors to be assessed in triennial compensation and eligibility reviews, as inflation would already have
been accounted for in annual budgetary adjustments.

Finally, in order to inhibit slippage on the part of any of the major stakeholders in the legal aid system in
their commitment to the ideal of access of justice, I recommend that approximately every 5 years and
ideally prior to a change of command at LAO (i.e., the appointment of a new Chair), a process of review
similar to that which I have undertaken should be commissioned by the Attorney General and that this
should serve as context in the search for a new chair (much as is already the case for many other public
sector institutions, such as hospitals and universities). Obviously, such reviews should be placed in the
public domain, so that all citizens of Ontario receive a periodic report card on the performance of the
legal aid system in meeting its access to justice ideals.

g) The Federal Government

The federal government has primary or major jurisdictional responsibilities in criminal law, family law,
and immigration law, yet over the past decade or so it has taken an increasingly limited view of its
responsibility for ensuring access to justice in these areas of law, reflected in declining financial
contributions to the legal aid system in Ontario in real terms. The federal government is currently
providing $16 million less (in constant dollars) to Ontario's legal aid system than it was providing ten
years ago. On the other hand, as noted above, the provincial government has recently announced an
additional $51 million over three years. The provincial government should aggressively press the federal
government to meet its responsibilities and to bear a significant share of the additional fiscal
commitments required to underwrite a healthy and sustainable legal aid system in Ontario.

1. See Ron Daniels and Michael Trebilcock, Rethinking the Welfare State: The Prospects for
Government by Voucher (London: Routledge, 2005) c. 5.
2. In a report released on February 26, 2008, Ontario's Ombudsman concluded that structural
changes are required at LAO to ensure that it is properly managing non-certificate cases, but
noted that LAO appears headed in the right direction. See, A Test of Wills: Investigation into
Legal Aid Ontario's Role in the Funding of the Criminal Defence of Richard Wills, Ombudsman
Report, February 2008, at 71, 72.
3. See Deloitte and Touche, Program Evaluation of the Administrative Components of Legal
Aid Ontario, March 2003.
4. See Michael Trebilcock, "Regulating Legal Competence," (2001) 34 Canadian Business
Law Journal 444..
5. O. Reg. 107/99, s.5..
6. See, e.g. The Honourable Justice Michael Moldaver, "Long Criminal Trials: Masters of a
System They are Meant to Serve" (2006) 32 C.R. (6th) 316; Michael Code, "Law Reform
Initiatives Relating to the Mega Trial Phenomenon" [unpublished]..
7. Chapter 6..
8. See Malcolm Feeley, Court Reform on Trial: Why Simple Solutions Fail (N.Y.: Basic
Books, 1983)..
9. See Deloitte, Community Legal Clinics and Student Legal Aid Services, October 2004..

118
Section X: CONCLUSION

Rather than summarizing all the detailed recommendations made throughout this review (as is common in
reports of this kind, yielding dozens, or even hundreds, of detailed recommendations of varying degrees
of importance), I have chosen to emphasize seven broad themes in this brief conclusion to my review, in
large part to minimize the risk of losing sight of the forest for the trees. The seven themes, together,
promote an important objective: a sustainable legal aid system that fulfils our collective commitment to
the ideals of access to justice and the rule of law.

Realistically, not all of the recommendations can be implemented at once. Some require immediate
attention, some attention in the medium term, and others are more in the nature of long-term strategic
directions that LAO should pursue over time.

First, management of the legal aid system cannot be approached in isolation from the broader justice
system and must be viewed as an integral part of a broader strategy of progressive and incremental reform
of the justice system at large. Legal aid resources should be expended in ways that facilitate more timely
and more effective resolution of disputes. In turn, reforms to the broader justice system must also be
pursued that facilitate this objective.

Second, financial eligibility criteria need to be significantly raised to a more realistic level that bears
some relationship to the actual circumstances of those in need. They should be simplified and made more
flexible so that services could be provided along a sliding scale of eligibility with broadened rules for
client contributions. The criteria also need to be brought into line with anti-poverty measures used
elsewhere in the social welfare system and adjusted on a regular basis.

Third, some range of legal aid services should be provided to all Ontario citizens on a non-means-tested
basis, in particular summary forms of advice and assistance, so that middle-class Ontarians develop a
material stake in the well-being of the legal aid system.

Fourth, LAO needs to develop a strategic focus on mechanisms for facilitating greater integration in the
delivery of legal aid services, minimizing the attachment of particular legal aid services to particular
classes of institutions or classes of problems (the silo approach to legal aid service delivery), and
enhancing single entry point or one-stop shopping approaches to the need for legal aid services.
Reconceptualizing the mandate of the clinics and determining the role of the clinics in a broader strategic
conception of the legal aid system would be a useful starting point.

Fifth, in order to facilitate the realization of some of the foregoing objectives, LAO must be much more
aggressive and enterprising in experimenting with innovative forms of service delivery, such as
comprehensive, sophisticated and accessible electronic information systems and hotline services, and it
must be much more strategic in maximizing the considerable potential of existing service delivery
mechanisms, particularly staff duty counsel, staff offices and paralegals.

119
Sixth, the legal aid tariff needs to be significantly raised in the immediate future, along with salaries for
staff lawyers in the clinic and duty counsel systems, and a system of periodic adjustments thereafter
institutionalized and incorporated into the budgetary process governing the financial relationship between
LAO and the Ministry of the Attorney General. LAO should be responsible for the management of the
tariff to encourage a flexible and innovative management approach that is responsive to imbalances in the
system.

Seventh, even with a much higher level of commitment to innovation in service delivery by LAO, most of
the other objectives, especially the expansion of financial eligibility criteria for legal aid assistance on the
demand-side, and redressing the under-compensation of service providers, on the supply-side, cannot be
fully realized without a substantial infusion of additional financial resources into a system that has been
chronically under-funded for decades and which compromises our commitment to the ideals of access to
justice and the rule of law, which as a civilized, compassionate and prosperous society should be one of
our most important shared common values or assets.

120
APPENDIX: LEGAL AID REVIEW'S CONSULTATIONS AND SUBMISSIONS
RECEIVED

Groups

1. Aboriginal Legal Services of Toronto (ALST)


2. African Canadian Legal Clinic (ACLC)
3. Ontario Association of Children's Aid Societies (OACAS)
4. Alliance for Sustainable Legal Aid (ASLA)
5. Association of Community Legal Clinics (ACLCO)
6. Association of Legal Aid Lawyers (ALAL)
7. Centre Francophone de Toronto (CFT)
8. Community Legal Education Ontario (CLEO)
9. County & District Law Presidents' Association (CDLPA)
10. Criminal Lawyers Association (CLA)
11. Association of Staff Duty Counsel Lawyers (ASDC)
12. MAG Crown Attorneys
13. Defence Counsel Association of Ottawa
14. Family Lawyers Association (FLA)
15. HIV & AIDS Legal Clinic - submission on behalf of the provincially mandated specialty
legal clinics
16. Law Society of Upper Canada (LSUC) - Access to Justice Committee
17. Metro Toronto Chinese & Southeast Asian Legal Clinic Ontario Council of Agencies
Serving Immigrants/Parkdale Community Legal Services Inc.South Asian Legal Clinic of
Ontario (Joint Submission)
18. Metropolitan Action Committee on Violence Against Women and Children (METRAC)
19. Nishnawbe-Aski Legal Services (NAN)
20. Ontario Bar Association (OBA)
21. Ontario Federation of Indian Friendship Centres
22. Parkdale Community Legal Services/Workers Action Centre/Kensington-Bellwoods
Community Legal Services
23. Pro Bono Law Ontario (PBLO)
24. Refugee Lawyers Association of Ontario
121
25. Student Legal Aid Services Societies (SLASS)
26. Law Foundation of Ontario (LFO)
27. Legal Aid Ontario (senior management and area directors)
28. Legal Aid New Brunswick
29. Saskatchewan Legal Aid Commission
30. Legal Aid Manitoba
31. Quebec Commission des services juridique
32. British Columbia Legal Services Society
33. Legal Aid Society of Alberta

Individuals

1. John McCamus, LAO Board Chair


2. Janet Leiper, former LAO Board Chair
3. Angela Longo, former LAO CEO
4. The Honourable Sidney B. Linden, former LAO Board Chair
5. Clare Burns, The Children's Lawyer for Ontario
6. Helena Birt, former provincial coordinator of LAO staff family duty counsel
7. Michael Code, Professor of Law, Faculty of Law, University of Toronto
8. Pascoe Pleasence and Nigel Balmer, United Kingdom Legal Services Research Centre
9. The Honourable Coulter Osborne, Q.C.
10. Edward Iacobucci, Professor of Law, University of Toronto
11. Brian Langille, Professor of Law, University of Toronto
12. The Honourable Justice Stephen Goudge

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Legal Aid Funding for Criminal Law Matters
In 1972, the federal government, through the Department of Justice Canada, negotiated legal aid cost-
sharing agreements with the provinces. The federal government committed to contributing approximately
50% of the cost of providing criminal legal aid services in each province. The program was meant to
provide legal assistance to accused people who had little or low incomes and were charged with an
offence for which incarceration was likely upon conviction or were facing extradition or were appealing a
judgement relating to these types of situations. Aside from setting these minimal coverage goals,
including coverage for young offenders facing closed or open custody, the cost-sharing agreements did
not dictate eligibility criteria or how a provincial legal aid plan should provide services.

Provinces provide criminal legal aid services through different service delivery models — government-
funded legal aid clinics and private practice lawyers paid a set hourly rate or a tariff per type of case.

In 1990-91, the federal government capped its legal aid contribution at approximately $86 million.
Following policy review exercises in the 1990s, federal contributions dropped, falling to $82 million in
2000-2001. The trend was reversed in 2001-2002 when $20 million was added to the criminal legal aid
budget on a temporary basis. In 2003, the federal government committed to increasing the amount
available for criminal legal aid services to $126.5 million for 2003-04 and for 2004-05.

Legal Aid for Civil Law Matters


Federal funding for civil legal aid matters began in the late 1970s as part of the Canada Assistance Plan
funding to the provinces, and the funds provided were linked to those actually spent. In 1994-95, this
funding was rolled into the Canada Health and Social Transfer (CHST) and became an unconditional
transfer payment to the provinces. At that time, approximately $99 million of federal money was being
provided for civil legal aid services. Federal support for civil legal aid services is part of what is now
called the Canada Social Transfer (CST) and is not specifically identified or allocated.

Legal Aid in the Territories


The federal government has signed access to justice agreements with the territorial governments. Under
these agreements, federal funds are provided for criminal and civil legal aid services, the native court
worker program and public legal education and information (PLEI) programming. This arrangement
reflects the Attorney General of Canada’s responsibility for the administration of justice in the territories.
The federal contribution to the territories under the access to justice agreements for 2000-01 is expected
to be just over $2 million.

123
Topics:

Law Society Act

4.1 It is a function of the Society to ensure that,

(a) all persons who practise law in Ontario or provide legal services in Ontario meet standards
of learning, professional competence and professional conduct that are appropriate for the
legal services they provide; and

(b) the standards of learning, professional competence and professional conduct for the
provision of a particular legal service in a particular area of law apply equally to persons who
practise law in Ontario and persons who provide legal services in Ontario. 2006, c. 21,
Sched. C, s. 7.

Principles to be applied by the Society

4.2 In carrying out its functions, duties and powers under this Act, the Society shall have
regard to the following principles:

1. The Society has a duty to maintain and advance the cause of justice and the rule of law.

2. The Society has a duty to act so as to facilitate access to justice for the people of Ontario.

3. The Society has a duty to protect the public interest.

4. The Society has a duty to act in a timely, open and efficient manner.

124
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Sunday, January 18

© Queen's Printer for Ontario, 2006


This is an unofficial version of Government of Ontario legal materials.

For information on reproduction rights see Copyright information: © Queen's Printer for Ontario, 2006 on the e-Laws website.

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The following information is presented here for convenience only and may not be current. Only legislative materials provided by the Queen's Printer
should be relied on as authoritative.

R.S.O. 1990, c. B.3

No Amendments.

Call of Minister of Justice and Attorney General or Solicitor General

1. A person who is or has been Minister of Justice and Attorney General of Canada or Solicitor General of Canada is entitled to
be called to the bar of Ontario without complying with the Law Society Act or any of the regulations or rules of the Society as to
admission, examinations, payment of fees or otherwise, and is thereupon entitled to practise at the bar of Her Majesty's courts
in Ontario. R.S.O. 1990, c. B.3, s. 1.

Queen's Counsel

2.-(1) The Lieutenant Governor, by letters patent under the Great Seal, may appoint from the members of the bar of Ontario
such persons as he or she considers proper to be, during pleasure, provincial officers under the name of "Her Majesty's counsel
learned in the law" for Ontario. R.S.O. 1990, c. B.3, s. 2 (1).

Disbarment revokes Q.C. appointment

(2) The disbarment of a barrister who holds an appointment as a Queen's counsel for Ontario has the effect of revoking such
appointment. R.S.O. 1990, c. B.3, s.2 (2).

Order of precedence at the bar

3.-(1) The following members of the bar of Ontario have precedence in the courts of Ontario in the following order:

1. The Minister of Justice and Attorney General of Canada. (See Lie by DOJ- January 22 2007)

2. The Attorney General for Ontario.

3. The members of the bar who have held the office of Minister of Justice and Attorney General of Canada or Attorney General
for Ontario or Minister of Justice and Attorney General for Ontario, according to seniority of appointment. R.S.O. 1990, c. B.3, s.
3 (1).

Patents of precedence

(2) The Lieutenant Governor, by letters patent under the Great Seal, may grant to any member of the bar a patent of
precedence in the courts of Ontario. R.S.O. 1990, c. B.3, s. 3 (2).

Precedence of Queen's Counsel

(3) Queen's counsel for Ontario have precedence in the courts according to seniority of appointment unless otherwise provided
in the letters patent. R.S.O. 1990, c. B.3, s. 3 (3).

Precedence of other members of the bar

(4) The remaining members of the bar, as among themselves, have precedence in the courts in the order of their call to the bar.
R.S.O. 1990, c. B.3, s. 3 (4).

Crown Counsel

(5) Nothing in this Act affects or alters any rights of precedence that appertain to any member of the bar when acting as counsel
for Her Majesty, or for any attorney general of Her Majesty, in any matter depending in the name of Her Majesty or of the
attorney general before the courts, but such right and precedence remain as if this Act had not been passed. R.S.O. 1990, c.

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B.3, s. 3 (5).

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The Oldest and Largest of Canadian Law Societies

The Law Society of Upper Canada, the largest of all Canadian law societies, was founded in
1797, almost 20 years before the earliest such association in any other province or territory.
The creation of this self-governing body by an Act of the Legislative Assembly was an
innovation in the English-speaking world and it became the model for law societies across
Canada.

The reasons for the creation of the Law Society, as set out in the statute of 1797, were to
provide the province with a "learned and honourable body, to assist their fellow subjects as
occasion may require, and to support and maintain the constitution of the said Province."

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In concrete terms, the mandate of the Law Society of Upper Canada was to see that persons
seeking admission to the legal profession were competent, and to ensure lawyers followed
proper procedures and behaved ethically. These goals are still its justification for existence.
Of course, the scale of the organization has changed. From fifteen lawyer members, the Law
Society has grown to become the largest bar in Canada with 38,000 members.

Since 1797, the Law Society has grown and evolved with the province and the country. It has
maintained and expanded its responsibilities for the training and competence of lawyers and
for overseeing their professional conduct and ethics. The contribution of the Law Society has
not been limited to its actions as the governing body of the legal profession, nor has its
influence been restricted to Ontario. Its members have been vital and active participants in the
life of the country, many becoming national figures in politics or business, with others making
their mark in such fields as the arts and sports.

The Law Society and legal education

Until 1957, the Law Society controlled entry to the Ontario legal profession through its
exclusive jurisdiction over legal education. Osgoode Hall Law School, the second oldest
common law school in Canada, was established by the Law Society in 1889. The school was
at the centre of the debates over the principles of modern legal education in the 1950s.
Regardless of controversy, the school was and remains a truly national law school. Its
graduates have gone into practice in all other common law provinces. Indeed, Osgoode Hall
Law School provided many of the founding members of the bar in the prairie provinces.
Today, in its new home at York University, it stands as the largest faculty of common law in
the country and boasts one of the most diverse student bodies in Canada.

The Honourable Chris Bentley

Attorney General

Chris Bentley was elected to the Ontario legislature in 2003 and re-elected in 2007. He
previously served as Minister of Training, Colleges and Universities and Minister of Labour.

He is a lawyer who has practised criminal and labour law. He also taught part-time at the
University of Western Ontario Law School, where he helped to establish the Law School

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Careers Office. He has also been a continuing education lecturer in courses for judges,
crown attorneys, the police and defence counsel. He has written a book on criminal law.

Active in the London community, Bentley was the first chairperson and an organizing
committee member of Neighbourhood Legal Services London and Middlesex, a legal clinic
established in London in 1985 to assist low-income clients.

Bentley attended the University of Western Ontario and received his law degree from the
University of Toronto Law School in 1979. He was called to the Ontario bar in 1981 and later
obtained a masters-level degree from Cambridge University in England.

Bentley has lived in London since 1967. He and his wife, Wendy, have two daughters. An
avid runner, he is a regular participant in the 24-hour relay to raise funds for London’s
hospitals and has completed three Boston marathons.

The Ministry of the Attorney General does not provide legal advice to the public.

Note: There is no mention of the Charter in the R&R of the AG published on the Ontario
web site and there are many inconsistensies with the Constitution.

It is presumed Parliament authored and authorized the R&R of the AG prior to the 1982
enactment

Roles and Responsibilities of the Attorney


General
The Attorney General has a unique role to play as a Minister.

One part of the Attorney General's role is that of a Cabinet Minister. In this capacity the
Minister is responsible for representing the interests and perspectives of the Ministry at
Cabinet, while simultaneously representing the interests and perspectives of Cabinet and
consequently the Government to the Ministry and the Ministry's communities of interest.

31. Nothing in this Charter extends the legislative powers of any body or
authority.

This Charter does not extend authority and in fact removes authority that
is not consistent with the Constitution Charter rights

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52. (1) The Constitution of Canada is the supreme law of Canada, and any
law that is inconsistent with the provisions of the Constitution is, to the
extent of the inconsistency, of no force or effect.

32. (1) This Charter applies (a) to the Parliament and government of Canada in respect of
all matters within the authority of Parliament including all matters relating to the Yukon
Territory and Northwest Territories; and (b) to the legislature and government of each
province in respect of all matters within the authority of the legislature of each province.

How can there be any difference as to how he advises Cabinet and any other departments and
agencies and be the "guardian of the public interest" responsible for the legitimacy and
constitutional aspects consistent with the Constitution conducive to evey individual's
guaranteed Charter rights of equal protection and benefit?

By doing any other than being consistent throughout his various responsibilities can only
cause undue conflict and endless costly court debates depriving the taxpayer with the
government having the humongous advantage being obviously adverse to our Charter rights.

The conspiracy is designed to make a thriving flourishing business for the members of the
Law Societies allowing the criminal element to flourish as aforementioned with the taxpayers
picking up a humongous tab for long inane debates adverse to the Constitution.

Sanity and legitamacy must prevail.

The Attorney General is the chief law officer of the Executive Council. The responsibilities
stemming from this role are unlike those of any other Cabinet member. The role has been
referred to as "judicial-like" and as the "guardian of the public interest".

Much has been written on the subject of ministerial responsibilities and the unique role of the
Attorney General.

There are various components of the Attorney General's role. The Attorney General has
unique responsibilities to the Crown, the courts, the Legislature and the executive branch of
government. While there are different emphases and nuances attached to these there is a
general theme throughout all the various aspects of the Attorney General's responsibilities
that the office has a constitutional and traditional responsibility beyond that of a political
minister.

They cannot continue in there unscrupulous traditional ways and be consistent with the
Constitution Charter rights

The statutory responsibilities of the office are found in section 5 of the Ministry of the
Attorney General Act. Section 5 states:
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The Attorney General,
(a) is the Law Officer of the Executive Council;
(b) shall see that the administration of public affairs is in accordance with the law;
(c) shall superintend all matters connected with the administration of justice in Ontario;
(d) shall perform the duties and have the powers that belong to the Attorney General and
Solicitor General of England by law and usage, so far as those powers and duties are
applicable to Ontario, and also shall perform the duties and powers that, until the
Constitution Act, 1867 came into effect, belonged to the offices of the Attorney General and
Solicitor General in the provinces of Canada and Upper Canada and which, under the
provisions of that Act, are within the scope of the powers of the Legislature;
(e) shall advise the Government upon all matters of law connected with legislative
enactments and upon all matters of law referred to him or her by the Government;
(f) shall advise the Government upon all matters of a legislative nature and superintend all
Government measures of a legislative nature;
(g) shall advise the heads of ministries and agencies of Government upon all matters of law
connected with such ministries and agency;
(h) shall conduct and regulate all litigation for and against the Crown or any ministry or
agency of government in respect of any subject within the authority or jurisdiction of the
Legislature;
(i) shall superintend all matters connected with judicial offices;
(j) shall perform such other functions as are assigned to him or her by the Legislature or by
the Lieutenant Governor in Council. "

What follows is an overview of the various components of the Attorney General's roles and
responsibilities, primarily as outlined in the Act.

Chief Law Officer of the Executive Council (s. 5(a))

The role of chief law officer might be referred to as the Attorney General's overall
responsibility as the independent legal advisor to the Cabinet - and some have even suggested
that the role possibly extends to the Legislature as well. The importance of the independence
of the role is fundamental to the position and well established in common law, statutes and
tradition.

As "guardian of the public interest" he is more than an advisor and must ensure they
are consistent with the Constitution Charter rights

Challenges cost money with the government having the advantage

As chief law officer, the Attorney General has a special responsibility to be the guardian of
that most elusive concept - the rule of law. The rule of law is a well established legal
principle, but hard to easily define. It is the rule of law that protects individuals, and society
as a whole, from arbitrary measures and safeguards personal liberties.

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It is about time that they figured the rule of law out, purportedly professionals. To not do so is
illegal and just a waste of taxpayer's money and is incompetent to protect every individual's
guaranteed Charter rights

The Rule of Law (From the


Wikipedia)
http://en.wikipedia.org/wiki/Rule_of_law

The Rule of law in its most basic form is no one is above the law.

Perhaps the most important application of the rule of law is the principle that governmental
authority is legitimately exercised

only in accordance with, publicly disclosed laws, adopted and enforced in accordance with
established procedural steps that are referred to as due process.

The rule of law is hostile to dictatorship and to anarchy.

According to modern Anglo-American thinking, hallmarks of adherence to the rule of law


commonly include a clear separation of powers,

legal certainty, the principle of legitimate expectation and equality of all before the law.

The concept is not without controversy, and it has been said that "the phrase the rule of law
has become meaningless thanks to ideological abuse and general over- use"

That last statement describes the Canadian illegitimate legal system. The Constitution is
the publicly disclosed law

The Attorney General has a special role to play in advising Cabinet to ensure the rule of law
is maintained and that Cabinet actions are legally and constitutionally valid.

That means the legitimate rule of law

In providing such advice it is important to keep in mind the distinction between the Attorney
General's policy advice and preference and the legal advice being presented to Cabinet. The
Attorney General's legal advice or constitutional advice should not be lightly disregarded.
The Attorney General's policy advice has the same weight as that of other ministers.

All advice must be consistent with the Constitution conducive to evey individual's
guaranteed Charter rights

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Criminal prosecutions (s.5(d))

One of the most publicly scrutinized aspects of the Attorney General's role is the
responsibility for criminal prosecutions encompassed in section 5 (d) and s. 92 of the
Constitution Act, 1867. Section 92 gives the provinces authority to legislate in matters related
to the administration of criminal justice and thereby gives the provincial Attorney General
authority to prosecute offences under the Criminal Code.

The Attorney General does not, however, direct or cause charges to be laid. While the
Attorney General and the Attorney General's agents may provide legal advice to the police,
the ultimate decision whether or not to lay charges is for the police. Once the charge is laid
the decision as to whether the prosecution should proceed, and in what manner, is for the
Attorney General and the Crown Attorney.

He is the "guardian of the public interest" and if information is brought to his attention
in conflict with the Constitution and every individual's guaranteed Charter rights he is
obliged to ensure appropriate action is taken.

Police Services Act R.S.O. 1990, CHAPTER P.15

PoliceServicesAct.doc Declaration of principles

1. Police services shall be provided throughout Ontario in accordance with the following
principles:

1. The need to ensure the safety and security of all persons and property in Ontario.

2. The importance of safeguarding the fundamental rights guaranteed by the Canadian Charter
of Rights and Freedoms and the Human Rights Code.

3. The need for co-operation between the providers of police services and the communities
they serve.

4. The importance of respect for victims of crime and understanding of their needs.

It is now an accepted and important constitutional principle that the Attorney General must
carry out the Minister's criminal prosecution responsibilities independent of Cabinet and of
any partisan political pressures. The Attorney General's responsibility for individual criminal
prosecutions must be undertaken - and seen to be undertaken - on strictly objective and legal
criteria, free of any political considerations. Whether to initiate or stay a criminal proceeding
is not an issue of government policy. This responsibility has been characterized as a matter of
133
the Attorney General acting as the Queen's Attorney - not as a Minister of the government of
the day.

This is not to suggest that decisions regarding criminal prosecutions are made in a complete
vacuum. A wide range of policy considerations may be weighed in executing this
responsibility, and the Attorney General may choose to consult the Cabinet on some of these
considerations. However any decisions relating to the conduct of individual prosecutions
must be the Attorney General's alone and independent of the traditional Cabinet decision
making process. In practice, in the vast majority of cases, these decisions are made by the
Attorney General's agents, the Crown Attorneys.

An important part of the Crown's - and thus the Attorney General's - responsibility in
conducting criminal prosecutions is associated with the responsibility to represent the public
interest - which includes not only the community as a whole and the victim, but also the
accused. The Crown has a distinct responsibility to the court to present all the credible
evidence available.

The responsibility is to present the case fairly - not necessarily to convict. This is a
fundamental precept of criminal law, even if it is not a particularly well-understood concept
among the general public. One of the Attorney General's responsibilities in fostering public
respect for the rule of law, is to assist the public in understanding the nature and limits of the
prosecutorial function.

It is not the public that does not understand theneed for legitimate law enforcement

Ultimately the Attorney General is accountable to the people of the province, through the
Legislature, for decisions relating to criminal prosecutions. Such accountability can only
occur, of course, once the prosecution is completed or when a final decision has been made
not to prosecute. The sub judicae rule bars any comment on a matter before the courts that is
likely to influence the matter. The sub judicae rule strictly prohibits the Attorney General
from commenting on prosecutions that are before the courts. Given the stature of the Attorney
General's position, any public comment coming from the office would be seen as an attempt
to influence the case.

Former Minister of Municipal Affaira and Housing John Gerretsen refused to prosecute my
former tenant for criminal fraud, and Legislature and former Attorney General refused to
account for his actions.

Since the former Attorney General was the Ministers advisor it was he who had to be held
accountable through the Legislature and since the Premier Dalton McGuinty appoints the
Attorney General he must be held accountable.

On that note I went to the federal government, and the DOJ- Minister of Justice and Attorney
General of Canada responded January 22 2007 stating the Parliament of Canada enacts

134
federal law (the Constitution) and it is the responsibility of the provinces to administer them
and they have autonomy with the federal government having no authority to intervene.

That of course is wrong because the Minister of Justice and Attorney General advises all
federal government department and agencies and Ministers.

The Minister of Public Safety Stockwell Day informed me in his belated response to me
on November 2 2007 that he was accountable to the public and Parliament for the
actions of the RCMP and the RCMP spent 10 months studying the evidence I filed with
the Commission for Public Complaints against the RCMP on November 8 2007 for
refusing to investigate government organized crime of corruption and
conspiracy,evidence published on the web.

If the RCMP did not have authority to investigate and intervene in the provincial
government would they have spent 10 months investigating?

After 10 months I received the "RCMP Final Letter of Disposition" with their
conclusion wrapped up in 1 and 1/2 pages of absurd content finding themselves not
guilty as charged.

What a surprise!!!
Obviously you cannot have people investigating themselves who do
not give a damn about the Constitution and every individual's
guaranteed Charter rights of equal protection and benefits who are
major players in the conspiracy.
Although the Attorney general can become involved in decision-making in relation to
individual criminal cases, such a practice would leave the Minister vulnerable to accusations
of political interference. Accordingly, it is traditional to leave the day-to-day decision-making
in the hands of the Attorney General's agents, the Crown Attorneys, except in cases of
exceptional importance where the public would expect the Attorney General to be briefed.

The evidence was provided to the Crown Attorney Newmarket by Registered Mail

Legislative Responsibilities (s. 5(e) and (f))

The Attorney General has broad responsibilities associated with Government legislation.
These responsibilities have been described as twofold. One is to oversee that all legislative
enactments are in accordance with principles of natural justice and civil rights (see also s.
5(b) above). This is obviously an important and broad area of responsibility. The second
aspect of this responsibility is to advise on the constitutionality and legality of legislation.
135
The Attorney General's legislative responsibilities are played out in a variety roles. The
Office of Legislative Counsel reports to the Attorney General. Legislative Counsel plays a key
role in ensuring the legal integrity of Government legislation. Although the Legislative
Counsel's reporting relationship to the Attorney General does allow the Attorney General to
provide guidance and set standards, individual pieces of legislation are drafted on
instructions from client ministries and are not within the sole control of Legislative Counsel
or the Attorney General. It should also be noted that Legislative Counsel also has a direct
responsibility to the Legislature as the Office also drafts all private member's bills.

The Attorney General has a further role to play as part of whatever Cabinet Committee is
formed to review legislation and regulations. Here the Minister has an opportunity to
comment on the technical issues related to legislation and regulations prior to Cabinet
consideration.

The Attorney General's role on legislative matters is as an adviser to the Cabinet. Although
unlikely, Cabinet could, in theory, receive the Attorney General's legal opinion on legislation
and choose to disregard it. The Attorney General's role is not independent of Cabinet
decision making as in the area of criminal prosecutions. As was noted earlier, the Attorney
General must make careful distinctions about the legal opinions and policy or political
preferences being offered about legislation.

Ultimately the Attorney General is the "guardian of the public interest" and all laws must
be consistent with the Constitution conducive to every individual's guarantee Charter
rights and failure to ensure that they are only leads to superfluous debates to the
luxurious benefit of lawyers to the humongous detriment of the taxpayer, and
compromises the safety and wellbeing of the individual and society as a whole.

Civil Litigation (s.5(h) and (d))

In addition to the specific responsibilities to conduct civil litigation on behalf of the


Government and its agencies (s. 5(h)), the Attorney General has broader litigation
responsibilities flowing from the historical powers of the Attorney General referred to in s.
5(d) of the Act. These powers are based on the Crown's parens patriae (parental) authority.
The Attorney General's authority, therefore, is not only to conduct litigation in cases directly
affecting the government or its agencies but also to litigate cases where there is a clear
matter of public interest or public rights at stake.

This has been characterized as a constitutional responsibility to ensure that the public
interest is well and independently represented. It may involve interventions in private
litigation or Charter challenges to legislation, even if the arguments conclude that the
legislation does contravene constitutionally protected rights.

Responsibility for Court Administration (s. 5(c))

136
A key component of the Attorney General's responsibilities to ensure the administration of
justice in the province is the administration of the courts and as a result the responsibility for
maintaining liaison with the judiciary.

Given the fundamental importance of the independence of the judiciary, the responsibility for
courts administration is often a very sensitive and delicate issue. Great care and respect for
the principles of judicial independence must be exercised in this area.

As long as the courts are operating consistent with the Constitution conducive to every
individual's guaranteed Charter rights the Attorney General, "guardian of the public
interest" should have no problem with them

http://www.attorneygeneral.jus.gov.on.ca/english/news/2007/20070413-lao-bg.asp
http://www.communitylegalcentre.ca/History_of_Legal_Aid.htm
http://www.communitylegalcentre.ca/About_Us.htm
http://www.communitylegalclinic.ca/content.aspx?pID=253
http://www.legalaid.on.ca/en/news/June29-2006b.asp
http://www.legalaid.on.ca/en/publications/reports/business_plan-2003-2004-public.asp

Michael Bryant Appoints July 5 2007

http://osgoode.yorku.ca/media2.nsf/58912001c091cdc8852569300055bbf9/c6a24c7a27298e0a852572ff0
0734b6e!OpenDocument

http://www.canpages.ca/page/ON/newmarket/legal-aid-ontario/1358916.html

http://cfcj-fcjc.org/inventory/reform.php?id=2

Police Services Act

R.S.O. 1990, CHAPTER P.15

PoliceServicesAct.doc

Declaration of principles

1. Police services shall be provided throughout Ontario in accordance with the following principles:

1. The need to ensure the safety and security of all persons and property in Ontario.
2. The importance of safeguarding the fundamental rights guaranteed by the Canadian
Charter of Rights and Freedoms and the Human Rights Code.
3. The need for co-operation between the providers of police services and the communities
they serve.
4. The importance of respect for victims of crime and understanding of their needs.

137
http://www.opicco.org/files/Legal%20Clinics%20-%20history%20and
%20role%20of%20CD.doc
Legal Clinics: History and Role of Community Development
...clinics are in a position to take the law to those who need it most. It is almost trite to point
out that a great many poor people have never been made aware of the rights they enjoy
under our laws… The clinics, located in, and run by, local communities, can reach out to
advise people of their rights. They take the law to the people… In doing all of this, the clinics
help convince the poor that they have a stake in this society.

Honourable Roy McMurtry, Ontario Attorney-General (Dec. 1, 1982)

Early Beginnings: Ontario’s community legal clinic system emerged gradually over several years in
response to the early organizing efforts of low-income people in communities across the province during
the late 1960s and early 1970s.

The first legal clinic in Ontario was started in 1969 when injured workers, who had struggled through the
complexities of fighting their own cases, banded together to use what they had learned about the
Workers Compensation Board to aid other injured workers and to organize together for reforms to the
laws affecting them.

In the years that followed, low-income people in other parts of the province also established their own
legal clinics, which were controlled by community-based boards and funded initially by the federal
government.

Despite the growing number of certificates, in the late 1960s and early 1970s many lawyers and
community representatives concluded that private lawyers were not adequately addressing the
legal needs of the low-income Ontarian. The conclusion was premised on two fundamental
beliefs.

First, these analysts noted that the legal needs of people with low incomes were often very
different from those of fee paying clients. It was argued that the disadvantaged needed many
services that were not available from the private bar – representation before administrative
tribunals determining social assistance and workers’ compensation, for example. Indeed, the
need for these services often arose simply by virtue of the clients’ financial circumstances.

Second … the very philosophy of traditional legal practice was largely inappropriate for low-
income clienteles. Traditional legal practice emphasized case-by-case litigation of discrete
issues. It was argued that those of modest means should also be able to use the law as a means
of achieving substantive, as opposed to procedural, equality … As a result, critics of the
existing Plan proposed a much different delivery model – the community legal aid clinic.
[Emphasis added].

138
Report of the Ontario Legal Aid Review: A Blueprint for Publicly Funded
Legal Services, McCamus, (1997)

Ontario Legal Aid Act: In 1974, following the recommendations of Justice Osler’s task force on legal
aid, neighbourhood legal clinics received permanent funding from the Ontario government. The funding
was administered by the Clinic Funding Committee, which was created by a regulation to the Legal Aid
Act that governed Ontario’s Legal Aid Plan. The role of clinics and their relationship to their new funder
were clarified further by Justice Grange’s report which established the regulation that governed clinics
until 1999. Legal clinics were to respond to the needs of low-income people in their communities by
offering legal services, including “activities reasonably designed to encourage access to such services or
to further such services and services designed solely to promote the legal welfare of a community.”

Throughout the years that followed, additional legal clinics were established in communities across the
province. Clinics grew from the ground up, as communities organized themselves, and made
applications for funding to the Clinic Funding Committee. Boards of Directors were the outgrowth of
effective community development, and ongoing community development has ensured continuing
accountability to local communities.

Legal Aid was again reviewed in 1997 by John McCamus, where once again the role of community legal
clinics in meeting the needs of low-income people was recognized. Recommendations from the
McCamus review led to the passing of the Legal Aid Services Act and the creation of Legal Aid Ontario
in 1999. The Act now governs the role and funding of legal clinics.

Community legal clinics continue to grow under the administration of Legal Aid Ontario. The most recent
example is the South Asian Legal Clinic of Ontario (SALCO), which advocated for several years for its
own clinic, and received funding from LAO in the fall of 2007. Today, there are 80 community legal
clinics across Ontario, including 20 specialty clinics and 6 Student Legal Aid Service Societies.

Role and Importance of Community Development: The first staff that were hired to work in
community legal clinics were more likely to be community organizers than lawyers and were guided by
community-based boards.

Clinics focused on “poverty law” services, emphasizing advice about and representation before
the many new administrative tribunals that accompanied the development of the welfare state.
Areas of practice included workers’ compensation, social assistance, children’s welfare,
immigration, and landlord-and-tenant matters. Clinics also developed a much broader
conception of legal services, including community legal education, law reform, and community
development.
McCamus, ibid. (Emphasis added)

As early as the 1980s, however, reports began to show that the balance between casework, legal
education, law reform and community development was shifting. Many legal clinics were directing
disproportionately greater amounts of time, energy, and resources to individual case-by-case services
rather than to law reform and community development. Further, clinics increasingly saw legal services
and community development as two separate activities, with legal services being provided by lawyers
and community development left to community legal workers. (Legal Services and Community
Development: Competing or Compatible Activities, Mossman, 1984).

139
This imbalance and disconnect continues today. Recent survey results and focus groups with clinic staff
reveal that community development work continues to be left primarily to community legal workers and
they too are being increasingly overwhelmed by case work. (Community Development and Ontario
Legal Clinics - Building Capacity through Awareness and Training, Broad, 2007).

Ontario Project for Inter-clinic Community Organizing (OPICCO): OPICCO was created in 2002 to
ensure that community organizing remains a central part of the work that legal clinics across Ontario do.
Membership in OPICCO is open to legal clinic staff, board members or clinic delegates and includes
more than 80 social workers, community legal workers, lawyers, clinic directors and office managers
representing 49 clinics across the province.

OPICCO members meet annually and have also formed committees that meet throughout the year to:
o lobby for dedicated funding and staff time for community development in all Ontario
legal clinics;
o promote and develop opportunities for community development training
o share community organizing resources with clinic staff, low-income activists and
community advocates;
o encourage clinic staff to share and discuss community development strategies
regionally and across Ontario; and
o develop better ways of measuring the value and effectiveness of community
organizing.

Looking to the Future: Community development is as critical to anti-poverty work today as it was 39
years ago when the first community legal clinic was created. Community development remains an
important tool for clinics to use in building the capacity of low income people to be involved in the legal
and political processes that affect them. As lawyers, community legal workers, administrative staff, clinic
directors and board members, we have a rich history to draw upon. Clinics have been at the forefront of
many wins for low-income people in Ontario and many clinic staff remain committed to community
development and are actively involved in their communities.

When used together with public legal education, casework and law reform strategies, clinics have been
able to produce systemic change that individual casework could not. Thus failing to recognize the
importance of community development to our work will mean failing the communities clinics were set-up
to serve.

Additional recommended reading:

Report of the Ontario Legal Aid Review: A Blueprint for Publicly Funded Legal Services, by John D.
McCamus (August 1997)
*Available at: http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/olar/toc.asp

All remaining materials can be downloaded from the OPICCO website: http://www.opicco.org/?
q=Legal_clinic_materials#attachments

Legal Services and Community Development: Competing or Compatible Activities, by Mary Jane
Mossman (September 1984)

The Community Legal Clinic Movement in Ontario: Practice and Theory, Means and Ends, by Michael
Blazer (April 1990)

140
The Critical Characteristics of Community Legal Clinics in Ontario by Lenny Abramowicz (Journal of Law
and Social Policy, 2004)

History of Poverty Law in Canada: a Research Paper for the Poverty Law Advocates Network of Canada
(PLANC), by Mary E. Marrone (March 2006)

Community Development and Ontario Legal Clinics - Building Capacity through Awareness and
Training, by Gayle Broad (June 2007) As I have stated many times the legal system provided by the
Change to a legitimate legal system consistent with the
unscrupulous members of the Law Society is illegal consistently
Constitution is always possible if we do not mind paying the
inconsistent with democracy and the Constitution absolutely not
members of the Law Society what ever they want to go legal
conducive to the individual’s guaranteed Charter rights. Such a
tangled web of deceit that it simply costs far too much for the
average person to access leaving them vulnerable to the criminal
element who thrive off them and invariably expand into the big
time where the criminal lawyers feast to the humongous detriment
to society.
Chaos is left in their wake until they are finally brought to court
where justice is not obtainable administered by members of the
Law Society who are first and foremost in it for the money which
sucks society dry creating the symptoms they thrive off where the
modus operandi of the legal system is specially designed for the
luxurious benefit of the members of the Law Society predictable
to assure victims necessary for their success while having the
nerve to charge the public protection money for something they
never intended to provide. Who will protect us from them?
They are all set up with their bibs on waiting to address the
symptoms of deliberately not putting a system in place capable of
protecting the people as guaranteed by the Charter.

The people may be fooled but the criminal element is not, quite
aware of what they can get away with especially since the people
find it cheaper and less aggravating to let the criminals go writing
off their losses rather than going after them throwing away more
money in the inane court system.

It works for the criminals and the criminal lawyers and the
taxpayers continue to pay for nothing but a belief that they are
being protected.

All the woes with the legal system are obviously due the fact the
members of the Law Society are not required to give a damn
about the people’s rights so they obviously do not.

Every individual is guaranteed equal protection and benefit and


the only way that can be achieved is through taxation.

The only reason the legal system is so costly is due their


deliberate incompetence to structure a simple legitimate system in
“The Spirit” of the Constitution consistent with the Golden Rule.

Now they want a raise for the pathetic excuse they call a legal
system. 141
The taxpayer has a material stake in the whole damn system.
Lawyer pay significantly decreased urged.

Its absurd they get paid at all for the


illegitimate legal system they operate in
designed to ransack society.
The number one problem is dealing with the people who need
legal aid.
The countries wealth is not fairly distributed creating the
illegitimate two tier system in the first place with minimum
wages far too low to the ultimate benefit of wealthy who do not
pay their fair share of taxes having the advantage of write offs
and safe havens, which the hard working people cannot access
simply because they haven’t the money to invest.
The rich are encouraged to invest more getting richer just by
doing it in the money they save from not paying their fair share
of taxes, which ultimately puts the burden on the middle class
over and over again.
When people live under the poverty line or even above their
housing and whatever needs to be subsidized by the taxpayer
who is already taxed too much trying to pay their way and the
wealthy too which is simply absurd.

It is absolutely ridiculous that the people with the most money


already comfortable have the laws designed for their benefit
where the government must be impartial uninfluenced by the
affluent and influential.
Every individual must be influential in matters of law where
every individual is guaranteed equality consistent with
Can that be true? The problem addressed is the same one I have been
democracy.
addressing for three years and I consider this admittance even though
the evidence published on the Charter Democracy Force web site
www.cdf.name provided him and his refusal to respond was
admittance enough.

The unscrupulous members of the Law Society as demonstrated in the


Make the system legitimate and efficient 2 part Law Society of Upper Canada document have to be nothing else
like it should be and make it free through when the Attorney General (member of the Law Society) who advises
taxes which is the only legitimate way all Ontario Government departments and agencies would not sign on
and cut lawyers wages because it will not to giving the middle class access to the system.
be as challenging to do it right and the
ultimate benefit will be justice.
Obviously if the low income people are provided free lawyers the
middleclass are paying the greatest support for them and yet they
cannot afford lawyers themselves.
The system as it stands not only makes them less equal to the wealthy
who have humongous advantage over them but the lower wage earners
who have already burdened them through no fault of their own also
142
have the advantage of a free lawyer where in either case it is futile to
venture into court against either of them if they care to go against the
odds of getting justice in the first place with the present justice system.
Why is he even discussing improving access to the
system when we are guaranteed it by the Charter
with no mention of money. We taxpayers pay for
an efficient legal system and they design an
efficient system for their benefit and say too bad if
you cannot afford to pay. There illegitimate attitude
cannot stop and will not stop. We must stop them..

This suggests the poor are getting


the least cunning lawyers and
above all $73 - $92 is absurd for so
many reasons published on the
Charter Democracy Force web
sites and obviously the government
who has no qualms with the
poverty level and the starving
would have some nerve to even
suggest they are any where near
worth $73-$92 to rip the people off
when they could be ripped off for
much less if there was no law at
all.
Like any business,
It is absolutely absurdmore money
that please, it is a natural phenomenon inherent to every individual.
we pay
the government to protect us from
The
peopleproblem is itlike
precisely is allthem.
one sided where the people of the Lower Tiers most assuredly need more money have
nobody on their side.

The consequences is the governments who are supposed to be on their side are only concerned about their
own side and having the advantage they take what they want and the people of the Lower Tier who
desperately need the raise end up in getting a decrease as their taxes continue to go up, increasing taxes
throughout all of society with consumer products over inflated with taxes causing more and more of the
middle class to slide closer to the poverty line and they all ready there in hopelessness and despair end up in
the bottom of the criminal element working their way up to the top leaving chaos in their wake and more and
more need public housing and aid hitting the middle class more all conducive to self destruction with the
minority high and dry, the lawyers plenty of work due the incompetence of the system which they want hich
bucks for their services.
Step back, get out of town before we run you out.

There is a place for insanity but not in the legal system that must be consistent with the Constitution
conducive to every individual’s guaranteed Charter rights with competent responsible, irreproachable
personnel with fortitude and conviction prerequisite.

This not addressed to lawyers who obviously are devoid of common sense and “The Spirit” of the law, which
is evident in everything they do for they simply can not help it any more than your average venomous snake
spider or scorpion. 143
At least they do not go looking for people to bite or create snake pits for people to fall in and in fact they are
conducive to society.
From: Frank Gallagher [mailto:frank.gallagher@sympatico.ca]
Sent: July 27, 2008 2:04 AM
To: 'city@thestar.ca'; 'lettertoed@thestar.ca'; 'city@thestar.ca'
Subject:

July 26 2008

Toronto Star

Joe Hall and Tracey Tyler

Legal aid urged for middle class


Re: Ontario report recommends lowering barriers that restrict access to justice

Please see attachment and web site

http://groups.google.com/group/charter-democracy-force-boomerangs

As you people know I have been providing you irrefutable evidence of Government Organized Crime
of corruption and conspiracy for at least a couple of years now and this topic is just one of the many
charges I have made but instead of exposing them to stand up for the people to get the necessary
changes made quickly and to put a stop to the corruption you write this to help them sneak it past
the public as if it was okay for them to have let this happen and when they get past this they will
just carry on organized crime as usual and better off for it as usual.

This is their modus operandi glossing over their conspiracy while coming out smelling like roses and
of course they could not do it with out your cooperation.

I have written about how they blocked a Public Inquiry when the Standing Committee on Public
Accounts looking into the RCMP pension fund scandal was linked to the DOJ.

Public Safety Minister Stockwell Day announces it would cost the taxpayer too much for a Public
Inquiry when they could deal with the matter internally obviously meaning they can cover it up if
they do not let it get out to the people and you people just go along with it.

When the Task Force Report came out in late December, purposely in the festive season to let it
slide that there was no mention of the DOJ in the report you people let it slide. I mean you cannot
possibly be that dumb to not know what is going on and it certainly would have been a good story
and it would have been a nice Christmas present for the people to get the truth instead of a
manipulation.

You should know that it is the Attorney General who advises all the government department and
agencies including the Ombudsman and of course is involved with assigning their mandate with very
limited authority according to the correspondence in the Ombudsman document on my web site but
144
they publish on the Ombudsman web site that they are the group to end all government corruption.
They claim they are independent of the government yet the Attorney General obviously advises
them accounting for the ridiculous responses I received from them. There was the same consistency
from all government departments that responded and they surely cannot all be that dumb, but if
they are there is a serious story there.

There is a story that goes to the DOJ who refuses to support the individual’s guaranteed Charter
rights even though the federal government made the guarantee.

There is a story of how the entire Ontario Government refuses to back the individual’s guaranteed
Charter rights and that is obviously because the Attorney General advises them all but it does not
explain why the Attorney General does not back the individual’s guaranteed Charter rights.

Of course we know why, because they never intended to back the guarantee and it is all just a scam
right from the very first line of the Charter.

“Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of
law”

The “Roles and Responsibilities of the Attorney General” defines that most elusive concept-the rule
of law- a well established legal principle but hard to easily define that protects the individual and
society as a whole. He is responsible to be the guardian of the rule of law and the guardian of the
public interest.

The rule of law was obviously incompetent to protect the public interest prior to the 1982 enactment
and most certainly is incompetent to protect the individual’s guaranteed Charter rights.

When one asks why was it incompetent prior to the Charter we can see there is only one logical
reason to scam the people because they obviously weren’t interested in amending the rule of law to
make it competent and as guardian of the rule of law it appears he is not permitted to change it but
fend off anyone who would attempt to do so.

When you read the 2 part Law Society of Upper Canada document and see that they adamantly
state or imply their members are not required to give a damn about the individual’s guaranteed
Charter rights it explains why they do not. When you read they do not look at the supporting
evidence to my complaint against one of their members and yet take 2 months to find him
incompliance with their standards you have to know that all they are there for is to quash
complaints and protect their members.

It is incomprehensible that their members hold every position in the government but it explains why
the Ombudsman and the Minister of Municipal Affairs and Housing never took the evidence into
account when they made their ignorant decisions.

Obviously to be consistent with the Constitution conducive to the individual’s guaranteed Charter
rights you need competent responsible irreproachable personnel with fortitude and conviction to the
endeavour but ultimately the Attorney General is responsible for the government departments and
agencies as it states so in the “Roles and Responsibilities of the Attorney General”

So obviously he is responsible for the inaccessible legal system, the topic at hand. That is what I
stated along time ago and the fact is he is responsible for it being so expensive, simply because that
is their intention to benefit the members of the Law Society and why the rule of law remains today
to be that most elusive concept hard to easily define that protects the individual and society as a
whole and when you put it all together it explains why society has no many problems and for that
the lawyers want a raise.

There is a serious mental health issue here and I do not know if it is embedded in the system or he
people for allowing it to happen.
145
Of course the people do not know what is going on although they believe they do with the media
making every effort to get the top stories out except of course the true story as we see from the
Saturday column.

With all the evidence I provided the Attorney General about the legal system not being accessible to
every individual all he has to say is they should try to make it less costly while they raise the
lawyers pay. Typical M.O.

15. (1) Every individual is equal before and under the law and has the right to the equal protection
and equal benefit of the law without discrimination and, in particular, without discrimination based
on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The only way you can logically meet the terms in 15. (1) is to provide justice free and pay for the
system through taxes.

The taxpayers may watch them a little better but they are cunning unscrupulous critters.

To bring the costs down they have to restructure consistent with the Constitution conducive to the
individuals guaranteed Charter rights and do a complete overhaul on the rule of law to make it
efficient and effective closing all the loopholes that cost the taxpayer’s so much money.

Meanwhile both the Chief Justice Warren Winkler and, Attorney General Chris Bentley have admitted
that the system is too costly and inaccessible just as I charged and even then the Attorney General
is not considering financing through taxation, which would eliminate the department presently
deciding who gets aid and who does not.

The point is not only is this true of what I allege on my web sites but everything is true and
irrefutably proven and yet you stand idly by helping them to cover it up.

The Federal Accountability Act, 2006 is just another cover up attempting to gloss over the
deliberately irresponsible manner the Attorney General has advised the Government departments
and agencies where he already had the authority and responsibility to ensure the government
personnel were operating consistent with the Constitution so what in hell is the federal Accountabilty
Act, 2006 going to do that the Constitution Act, 1982 does not….. the Ombudsman Act and so on.

No matter if they enacted 5000 Acts and manned them with a million personnel nothing will change
because the Attorney General is involved with them and he is not about to grant any of them
authority to take him out and end the conspiracy.

Well once again I inform you the evidence is on the Charter Democracy Force web site
www.cdf.name (Now www.uRus.ca) and 10 affiliate sites.

Perhaps you really did not have a good look at it and perhaps you are in on the conspiracy.

We shall see.

Frank Gallagher
Manager CDF

146
August 18 2008

RCMP Commissioner
webmaster@rcmp-grc.gc.ca

Pierre Leduc
Executive Assisstant to the Commissioner
pierre.leduc@rcmp-grc.gc.ca

Bob MacAdam, S/Sgt. www.cdf.name


Royal Canadian Mounted Police
Frank Gallagher
Toronto Integrated Proceeds of Crime Section
345 Harry Walker Parkway South Keswick, On
Newmarket, Ontario L3Y 8P6 frank@cdf.name
905-953-7580
robert.macadam@rcmp-grc.gc.ca

Sergeant Roy Steinebach


roy.steinebach@rcmp-grc.gc.ca
Regular Forces

Sergeant Karen Delorey


Non Commissioned Officer in Charge
Professional Standards Unit
255 Attwell Drive

Milton Detachment
Inspector Brian Verheul
Regular Forces
brian.verheul@rcmp-grc.gc.ca

Re: Investigation of refusing to investigate


Government Organized Crime
Corruption and conspiracy
Your File 2007-1355445

New request for investigation of Government Organized Crime of corruption and conspiracy against the
individual’s of the Lower Tier

In addition to the evidence previously provided you under Your File 2007-1355445 and evidence published on the
Charter Democracy Force web sites www.cdf.name and 10 affiliate sites accessible through the www.cdf.name site
I provide you the following evidence published on the CanLaw Lawyer referral site which attests to the fact the
entire legal system is incompetently corrupt incapable of administering and enforcing law consistent with the
Constitution conducive to every individual’s guaranteed Charter rights.

I have mentioned evidence is available everywhere in reality if you have a mind to do it.
You will find plenty of informative information on the http://www.canlaw.com web site

Judges say system is shambles


Lawyers say they are arrogant, power mad…..incompetent

147
The people say nothing because they do not know about it.
Why is that?

When I first came across their site I could not believe that they were confirming some of that which I
have been stating and have irrefutably proven.

The legal system is in disrepute and must be restructured consistent with the Constitution conducive to
every individual’s guaranteed Charter rights

Lawyers in the private sector are afraid of the incompetent, arrogant and power mad judges and so.

I have written many lawyers without response, however one took a little more time but said he could not
help because he had done work for Attorney General Michael Bryant and it would be in conflict of
interest.
Another wrote after a reasonable time to review the evidence stating he could not help me with this one.

I thought sure CanLaw would help after seeing the evidence on their web site but unfortunately I was
right in the first place, that they were part of the conspiracy either directly or indirectly for obvious it
would be professional suicide.

Canlaw was not too receptive to the idea

I tried 3 times and they are out.

look you stupid bastard, STOP SPAMMING US OR ELSE

STOP SPAMMING US
YOU ARE A RAVING LUNATIC

Go to hell, asshole

It is not easy being an individual.


I best hurry getting us individual’s organized

The government members of the legal profession tell me to gat a lawyer


Lawyer Referral Service tell me to go to hell

The world populace is doomed if the RCMP do not do the job required of them.

Frank Gallagher
Manager 148
Charter Democracy Force
August 18 2008
CanLaw www.canlaw.com
This is not spam

I am seriously in desperate need of a lawyer to litigate government organized crime, corruption and conspiracy
against the people of the Lower Tier who have structured a system inconsistent with the Constitution adverse to the
individual’s guaranteed Charter rights, which irrefutably proves that which is published on your web site and much
more.
I have clipped a few excerpts in support of some of the charges I have made to the RCMP and have irrefutably
proven on the Charter Democracy Force Web site www.cdf.name and 10 affiliate sites

Law Societies are designed to protect lawyers.


Existing judicial councils erroneously believe their function is to protect judges from the public, not the public from
judges.
Lawyers all know to be seen publicly criticizing a judge is professional suicide
Ask any lawyer…….they will unofficially tell you many judges (not all) are egomaniacs. Many are rude, arrogant
and power mad. Many are living proof that power corrupts.
Can you help please?
Frank Gallagher Perhaps a Class Action?

149
-----Original Message-----
From: CanLaw [mailto:canlaw@canlaw.com]
Sent: August 18, 2008 11:11 AM
To: franklyone@hotmail.com
Subject: Re: Please, this is not spam

Go to hell, asshole

At 10:37 AM 18/08/2008 -0400, you wrote:


>
>
>
>
>
> August 18 2008
>
>CanLaw
>----------------------------------------------------
>This message has been processed by Firetrust Benign.
>
>
>
>WARNING: The remainder of this message has not been transferred.
>The estimated size of this message is 359251 bytes.
>Click on the Retrieve From Server icon above and check mail again to get
>the whole thing. (If you're reading this in the preview pane, you'll need
>to open the message to see the icon.) If the Retrieve From Server icon is
>not showing, then this message is no longer on the server.

150
August 13 2008

This consumer has a damn good idea that the entire legal system is
Government Organized Crime personified with the members of the
Law Societies the major players.

Correct me if I am wrong, please.

Perhaps it is just the Government members of the Law Societies as I


have irrefutable evidence published on the Charter Democracy Force
web site www.cdf.name and 10 affiliate sites.

On November 8 2007 I filed evidence with the Commission for Public Complaints against the RCMP for
refusing to investigate Government Organized Crime of corruption and conspiracy against the people of
the Lower Tier and on July 11 2008 the Professional Standards Unit wrote to inform they have completed
studying the evidence on my web sites and a Final Report has been forwarded to the line officer of two
RCMP members I named in the complaint.
I will receive a Final Letter of Disposition upon completion of the review.

The evidence shows the RCMP Commissioner William Elliot, Minister of Public Safety Stockwell Day,
Minister of Justice and Attorney General Robert Nicholson, the PM Stephen Harper, Ontario Attorney
General and many others are involved so I do not expect a whole lot from the Final Letter of Disposition.

If their report is negative after a thorough investigation of the evidence that irrefutably proves the
corruption through out they will have provided the conclusive proof.

I expected to receive it already and I presume one of two things.

They are looking for a way out but there is no door or they are organizing to do what must be done and
warranted by the evidence.

151
We will see.

If any lawyer in the private sector truly believes the system needs humongous change this is your
opportunity to jump on the band wagon and I apologize for what you will read..

Frank Gallagher
Manager
Charter Democracy Force

PS

Perhaps a substantial law suit will wake them up if the RCMP do not

-----Original Message-----
From: Frank Gallagher [mailto:franklyone@hotmail.com]
Sent: August 14, 2008 1:01 PM
To: 'J Kirby Inwood'
Subject: RE: How about true story

You must be a member of the Law Society.

Evidence means nothing to you either

Will you look at the evidence?


http://groups.google.com/group/charter-democracy-force
Please answer and then I will remove you from my e-mail list

-----Original Message-----
From: J Kirby Inwood [mailto:jki@canlaw.com]
Sent: August 14, 2008 12:45 PM
To: franklyone@hotmail.com
Subject: Re: How about true story

STOP SPAMMING US
YOU ARE A RAVING LUNATIC

On 14/08/2008 12:21:22 PM, Frank Gallagher (frank.gallagher@sympatico.ca) wrote:


> August 14 2008-08-14
>
>
>
> To: Toronto Star
>
>
>
> Re: Page AA8 Toronto Star August 14 2008
>
> While poverty surges, legal aid comes up short.
>
>
>
>
>
> The Toronto Star still refuses to tell the people the truth as they
> cooperate with the government attempting to manipulate their way out of
152
> the
> evidence that irrefutably proves their conspiracy to ransack society as
> the
> news reports poverty surges and legal aid comes up short.
>
>
>
> Of course they will eventually give themselves a decent raise and the
> problems will be solved.
>
>
>
> Of course the public will all have to take another decrease through taxes
> driving more people into poverty but the remainder of us in the middle
> class
> will just have to pick up our socks.
>
>
>
> The big conglomerates will be provided more tax breaks to get the economy
> moving and the middle class will pick up that slack and more will fall
> below
> the poverty line but do not worry the middle class survivors will pick up
> that too.
>
>
>
> What else are they good for anyway, they are just people of the Lower Tier.

_________________________________________________________________________
You Can Trust CanLaw
www.canlaw.com <http://www.canlaw.com/>

We help real people with real solutions for real problems

-----Original Message-----
From: CanLaw [mailto:canlaw@canlaw.com]
Sent: August 14, 2008 1:08 PM
To: franklyone@hotmail.com
Subject: Re: How about true story?

look you stupid bastard, STOP SPAMMING US OR ELSE

At 12:21 PM 14/08/2008 -0400, you wrote:

>
>August 14 2008-08-14
>
>----------------------------------------------------
>This message has been processed by Firetrust Benign.
>
>
>
>WARNING: The remainder of this message has not been transferred.
>The estimated size of this message is 938689 bytes.
153
>Click on the Retrieve From Server icon above and check mail again to get
>the whole thing. (If you're reading this in the preview pane, you'll need
>to open the message to see the icon.) If the Retrieve From Server icon is
>not showing, then this message is no longer on the server.

Speaking Notes for


THE HONOURABLE ROB NICHOLSON, P.C., Q.C.,
M.P. for Niagara Falls
Minister of Justice and Attorney General of Canada
for the
Canadian Bar Association
Canadian Legal Conference and Expo
“Dialogue with the Minister”

Québec, Quebec
August 18, 2008

Check against delivery

Introduction and Greetings


Thank you, (emcee), for your kind introduction, and for welcoming me so warmly to this beautiful city
during its 400th anniversary year.

I’d like to express my appreciation to the Canadian Bar Association for inviting me to speak to you today,
and to the many volunteers who organize this important annual event for our profession.

I am honoured to be part of a roster of eminent speakers who are sharing their insights throughout this
conference.

I am also pleased to be among you, who, as members of the CBA and fellow lawyers, are so strongly
committed to improving the justice system and fulfilling your roles as officers of the court.

Where I Come From


This is the first time I’m addressing you as a group – or at least the first time in person, as I was not able
to attend last year’s conference.

For this reason, I would like to take just a minute to tell you a little bit about myself.

I have always had a deep respect for the law.

I practised law in a small firm for a number of years in Niagara Falls, and I am a very proud, lifelong
resident of that community.

I knew that I wanted to be a lawyer from the time I was a boy. I had the impression early on that it was a
fascinating and challenging profession, and I still believe this to be true.

But I also wanted to emulate the politicians I admired, and to be involved in public life.

So it is truly an honour for me to be Minister of Justice and Attorney General of Canada and to follow in
the footsteps of my predecessors, such as Sir John A. Macdonald, our country’s first Minister of Justice
and, of course, our first Prime Minister.
154
I should also mention that Québec is not alone in marking an important anniversary this year – it is also
the 140th anniversary of the Department of Justice.

Law and Politics


I have always believed that law and politics are closely intertwined.

As a Member of Parliament, I approach my relationships with constituents in much the same way as does
a lawyer with a client.

That is, I take the time to listen, I respect the opinions of others. And above all, I strive to live up to the
standards that are expected of me in my profession.

This approach is what guides me in my role as Canada’s Minister of Justice and Attorney General.

As Minister of Justice & Attorney General of Canada


I am determined to do my part to maintain the integrity of the justice system – to making it more efficient
and effective and to meet the expectations of Canadians in the 21st century.

This ability to listen, along with my belief that we all have a role to play in upholding our justice system,
have helped me on Parliamentary committees to appreciate the views of all those who are part of the
process. This includes the valuable input of the CBA.

We have not, on every occasion, agreed. But on each occasion, the genuine passion of CBA
representatives has been evident.

It has not passed unnoticed, or without appreciation.

A Greater Responsibility
Within the legal community, I have had the privilege of working with people of the highest standards of
conduct.

We must continue to uphold these standards.

We all know the importance of maintaining the trust of our clients.

But we also have a greater responsibility: that of earning and maintaining the trust of all Canadians, each
of whom has a stake in our system of justice.

You recognize this yourselves, and to that end the CBA has established the President’s Award, among
others, to celebrate members who have made outstanding contributions to the profession of law and to
public life.

It is especially important for all of us to reaffirm our individual and collective responsibilities to the
justice system as we face ever-growing delays and degrees of complexity in all kinds of legal
proceedings.

You have no doubt found evidence of this in your own practices.

Moreover, a number of distinguished jurists have expressed the same concerns, and all of them point to
professionalism of counsel as a crucial element in improving the efficiency of the criminal justice system.

155
No less an authority than the Chief Justice of the Supreme Court, the Right Honourable Beverley
McLachlin has cited both pre-trial motions based on the Charter of Rights and Freedoms and changes in
the law of evidence as increasing the length of trials, with motions themselves that “regularly last two to
three times longer than the trial itself.”

The Honourable Justice Michael Moldaver of the Ontario Court of Appeal has even stronger words on
this matter, suggesting that nearly all issues raised by the Charter have been litigated to the Supreme
Court and have made their way into jurisprudence, and that counsel should be more judicious in their use
of pre-trial motions that invoke the Charter.

These concerns have reached the Ontario government, which recently appointed University of Toronto
professor Michael Code and Justice Patrick LeSage to review mega-trials and the various causes of delay
in criminal case procedures.

Professor Code has already come up with possible solutions in a recent report. As he states:

“Making responsible admissions of matters that can not realistically be disputed,


refusing to make frivolous arguments that have no real basis in fact or law and
treating your opponent with respect and courtesy are all hallmarks of the
professionally responsible lawyer.”

Where The Solutions Lie


Now it may sound as if all blame rests with the bar.

Nothing could be further from the truth.

As Justice Moldaver said back in 2005,

“The problem is a collective one. It belongs to Parliament, it belongs to the


judiciary, it belongs to Crown attorneys, it belongs to the police, and yes, it belongs
to the defence bar.”

These sentiments are equally true today.

The truth is, there is no single segment of the legal system that is causing the problem alone.

Nor can any single group be responsible for the solution.

Shared Duties in the Justice System


We all have roles to play in making the system work more efficiently.

For example, at the federal level, our Government has a clear role and obligation to Canadians to
maintain the integrity of the justice system through enacting good laws and supporting programs that
improve access to justice.

As well, provincial and territorial governments have the responsibility to administer justice and regulate
how Crown counsel perform their duties.

Above and beyond these areas of jurisdiction, the provincial and territorial governments have also
embarked on reviews of the justice system with a view to improving access and efficiency.

156
This is going on now in British Columbia. In Ontario, a summary report by Justice Coulter Osbourne on
civil law reform has recommended changes to the Rules of Civil Procedure, as well as best practices for
the profession.

But what about our shared duties as stewards of the justice system?

There are many areas in which we can work in partnership to accomplish these goals.

Last November, at our Federal/Provincial/Territorial ministers’ meeting, ministers agreed on


recommendations for legislative amendments that will lead to better management of mega-trials.

Our Government takes those recommendations seriously, and also looks forward to those of the LeSage-
Code report.

My Department continues its work on the Steering Committee on Justice Efficiencies & Access to the
Justice System.

We have no choice but to act within our own spheres and collectively. If not, the pressure will be on our
legislatures to intervene and impose limitations on the trial process – as undesirable as that may be.

Accomplishments and Priorities


As I just mentioned, our Government is committed to maintaining the integrity of the justice system, and
we have taken steps to fulfill that commitment.
Bill C-13
For example, we have made important technical adjustments to the Criminal Code through Bill C-13,
which recently received Royal Assent.

These changes affect areas such as protection for victims, sentencing, the execution of search warrants,
levying fines for summary offences and access to justice in both official languages.

The end result quietly improves the machinery on which our justice system depends.

Bill C-31
We have also amended the Judges Act through Bill C-31 to allow for the appointment of 20 new judges to
provincial and territorial superior trial courts, to address backlogs and delays, and to ensure that a strong
mechanism exists for the resolution of the specific claims of our First Nations.

I am particularly proud of the progress our Government has made in other areas of life for Aboriginal
people, including establishing the Indian Residential School Settlement Agreement and the Truth &
Reconciliation Commission.

We are grateful to the Aboriginal leaders whose advice helped us reach this milestone.

Human Rights Protection


We have also enacted legislation amending the Canadian Human Rights Act to extend human rights
protections to all First Nations communities.

This ends a gap that left many individuals on reserves, a great many of them women, without access to
the remedies that are now available to them under the Act.

157
But we must still address other pressing issues, including the fact that Aboriginal people are over-
represented in the justice system.

Aboriginal Justice Strategy Announcement


And so I am very pleased to formally announce today that our Government has renewed its commitment
to the Aboriginal Justice Strategy until 2012, and will make an additional investment of $40 million for a
total of $85 million over five years.

The Aboriginal Justice Strategy empowers Aboriginal communities to take greater responsibility for the
administration of justice, further reducing crime and strengthening communities in remote areas, off
reserves and in urban settings.

By re-committing and increasing our support to this Strategy, the Government of Canada will be better
able to continue its partnerships with Aboriginal communities, service providers and our provincial and
territorial partners to reduce crime at the community and regional levels.

This funding will help support community-based justice projects that include diversion programs,
sentencing alternatives and mediation programs – projects that achieve real results.

Not only is the principle right, the results are impressive.

My officials continue to work with partners across Canada’s justice system, including judges, provincial
and territorial officials and members of the legal community, to improve justice for Aboriginal peoples.

We are proud to continue to support the Aboriginal Justice Strategy as part of our overall commitment to
safer communities.

Supreme Court of Canada Justice


We are equally committed to improving transparency and accountability in justice matters.

As you are no doubt aware, we are in the process of selecting a Justice for the Supreme Court of Canada
following the retirement of Mr. Justice Bastarache.

To that end, I have been discussing the matter with my counterparts in the Atlantic provinces and the
legal community.

And as we did with the appointment of Mr. Justice Rothstein in 2006, our Government has put in place a
process which balances the need for transparency with the need to preserve judicial independence and
maintain appropriate relationships among Parliament, the Courts and the executive.

I look forward to the conclusions of the Parliamentary Selection Committee, a body established by the
Government to involve parliamentarians in a meaningful way in the selection process.

We have also done our part to increase efficiency by appointing judges to fill vacancies in provincial
superior courts – many of which existed before this government came to power.

To date, our Government has appointed over 200 highly qualified individuals to the bench. Merit, as
always, drives this process.

We expect the same high standards of ethical and responsible behaviour from those we appoint to the
bench as we do from one another, as esteemed colleagues.

158
In fact, who here today is unaware that our responsibilities as professionals extend beyond the justice
system to society at large, and to our communities in particular?

Certainly, the safety of our communities is a priority for our Government – and a priority for Canadians.

Tackling Crime: Youth Justice System


In the coming months, our Government will turn its focus to the youth justice system.

We hear from Canadians that young offenders are receiving sentences that fail to reflect the seriousness
of their crimes.

Our Government has a duty to take these opinions seriously and to work with legal practitioners to
maintain the confidence of Canadians in their justice system.

Last fall, we introduced a bill to make it easier to impose pre-trial detention on young persons who pose a
risk to public safety.

Since then, I have been travelling across the country to consult with stakeholders, including provincial
and territorial governments, who have identified areas of concern and possible improvements to the
Youth Criminal Justice Act.

In fact, I was in the Atlantic provinces last week and will be continuing these talks over the next few days
across the North.

Throughout this review, and the legislative process, we value the views of stakeholders, including the
provinces and territories, the bar, the judiciary, community leaders, police, and organizations working
with youth in the community.

The views of these stakeholders will become even more important to us as our Government continues to
pursue its legislative agenda when Parliament resumes in a month’s time.

Tackling Crime: Tackling Violent Crime Act


Furthermore, the Tackling Violent Crime Act, which is now fully in force, is an important example of how
we are acting to strengthen the safety and security of Canadians.

Among other things, this Act raises the age of protection from sexual exploitation, better protects
Canadian society from dangerous offenders, and cracks down on alcohol- and drug-impaired driving.

Tackling Crime: Auto Theft and Identity Theft


Another important focus of our Government is property crimes, such as auto theft and identity theft.

Tackling Crime: Organized Crime at the G-8


In fact, I recently had the opportunity to discuss identity-related crime, an emerging and troubling global
phenomenon, in Tokyo.

My colleague Stockwell Day and I joined our G-8 counterparts in renewing our commitment to work
together on issues such as transnational organized crime, terrorism, and child sexual exploitation.

Also among the matters of concern at the G-8 meeting was the illicit drug trade.

159
Tackling Crime: National Anti-Drug Strategy
We know the harm that the abuse of illicit drugs can do. The Government’s National Anti-Drug Strategy
is tackling illicit drug issues in Canada in three key areas: prevention, treatment and enforcement.

We are pursuing this strategy so that we can protect our youth from a life of drugs and crime, show
compassion for those who fall victim to illicit drugs, and make our communities safer.

Partnerships
The National Anti-Drug Strategy is an example of the importance we place on partnerships – in this case,
with other levels of government, support agencies and policing authorities.

Let me emphasize that partnerships – collaborations for a common purpose – are no less important in the
arena of justice as they are in other fields of endeavour.

As Minister of Justice, I need to hear from all those who have a stake in the justice system.

Next month I will be meeting with my counterparts at the annual Federal/Provincial/Territorial meeting of
Ministers Reponsible for Justice here in Québec, and I look forward to the review of the business case for
criminal legal aid.

Our Government has provided stable, long-term funding to the provinces and territories for criminal legal
aid in Budget 2007.

In addition, these jurisdictions are able to allocate resources from the Canada Social Transfer to areas that
include civil legal aid, according to their priorities.

We recognize that legal aid is just one of the many challenges that must be overcome in sustaining access
to justice.

I am committed to working with my provincial and territorial colleagues to ensure effective legal aid
within a strong justice system.

We need to hear from ordinary Canadians and listen to their concerns. Their views play an important role
in our agenda.

They have told us they are concerned with violent youth crime and the serious repercussions of drug
abuse in their communities.

And of course, the CBA is an important stakeholder.

We have a long history of dialogue and exchanging ideas. We have built relationships through consulting
on legislation and soliciting input through Parliamentary committees, most recently on Bill C-31.

Conclusion
Our justice system will continue to face serious challenges in the near future in many areas, including the
pursuit of improved efficiency and accessibility.

Although our Government can do its part to address the needs of the system, we cannot pretend to know
all the answers or even all of the questions.

160
I am confident that all parties involved in the justice system – governments, legal professionals, non-
profit and for-profit organizations, and Canadians from all walks of life – will continue to make their
respective contributions.

I’d like to stress that there are many areas where we can find common ground.

We want our justice system to be more efficient.

We want Canadians to be safe.

And we want our profession to maintain the highest levels of ethical conduct and integrity so Canadians
have confidence both in lawyers and the system in which they work.

To conclude, I’d like to quote from the CBA’s Canons of Legal Ethics:
The lawyer is more than a citizen. He is a minister of justice, an officer of the
Courts, his client’s advocate, and a member of an ancient, honourable and learned
profession…it is his duty to promote the interests of the State, serve the cause of
justice, maintain the authority and dignity of the Courts, be faithful to his clients,
candid and courteous in his intercourse with his fellows and true to himself.

That we might all strive to these ends.

Thank you.

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- 30 -

Date Modified: 2008-12-12

Report Of The Review Of Large And Complex Criminal Case Procedures

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You can download this free software from Adobe's Web site .

Report Of The Review Of Large And Complex Criminal Case Procedures – Print Version, PDF
883KB

1. History of the Review


2. The Context and Culture in which Long Complex Cases have Arisen
A. Do We Need to Begin with a Definition of "Long Complex Cases?"
B. The Legal or Law Reform Causes of Long Complex Trials
C. Within this Changed Legal Context, the Justice System Needs to do Better
D. The Focus of our Recommendations
2. Disclosure and the Pre-Charge Relationship between the Police and the Crown
A.Introduction
B. The Solutions to the Issues on the Crown/Police Side
C. Closer Police and Crown Collaboration at the Pre-Charge Stage
D. Can the Crown Giving Pre-Charge Advice Play a Role in the Prosecution Once Charges
are Laid?
E. Electronic Disclosure in a Comprehensive Standard Format
F. Vetting, Transcribing and Paying for Disclosure
1. Introduction
2. Who is Responsible for Vetting or Editing the Disclosure Brief?
3. Who Should Transcribe Relevant Taped Interviews and Intercepts?
4. Who Should Pay for Disclosure?
G. The Timeliness of Disclosure

162
H. The Solutions to the Issues on the Defence Side: Requests for Materials Outside the
Investigative File
2. Judicial Case Management, Especially at the Pre-trial Stage
A.The History of Judicial Case Management in Ontario
B. The Need for Greater Case Management Powers
C. Suggested Models for Reform
D. The Proposals Emerging from this Review
E. The Federal Provincial Territorial Working Group Proposals
F. The Common Law Case Management Powers of the Trial Judge and The Need for
Expertise
G. Judicial Case Management in the Ontario Court when the Case is Proceeding to
Preliminary Inquiry
H. Managing the Bail Hearing
I. The Power to Require Admissions
1. Introduction
2. Counsel's Ethical Duties
3. Requiring the Crown to Accept Admissions Offered by the Defence
4. Requiring the Defence to Make Admissions of Facts not Legitimately in
Dispute
J. Long Complex Terrorism Cases
2. Legal Aid
A.Introduction
B. Available Models for Reform
C. The First Approach to Reform: Paying Higher Fees to a Short List of Highly Qualified
Counsel
D. The Second Approach to Reform: Enhanced Oversight of the Budget for Long Complex
Cases
1. The Statutory Scheme
2. The Independence of the Bar
3. Improving Front End Management and Oversight of the Conduct of the
Defence
4. Improving Post Trial Responses Where the Case Appears to have been
Conducted Contrary to the Statutory Purpose of the Legal Aid Services Act
E. Developing the Next Generation of Leading Counsel
2. Advising, Directing and, Where Necessary, Disciplining Counsel for Both the Crown
and the Defence
A.Introduction
B. Inexperience, Lack of Guidance, Poor Judgment and Poor Advocacy
1. Oversight and Guidance of Crown Counsel in Long Complex Cases
163
2. Oversight and Guidance of Defence Counsel in Long Complex Cases
C. Remedial Responses to Professional Misconduct in Long Complex Trials
1. Introduction
2. Judicial Responses to Court Room Misconduct
3. The Law Society's Response to Court Room Misconduct
4. The Attorney General and Legal Aid's Responses to Court Room
Misconduct
5. The Particular Problem of Incompetence
D. Post-Mortems of the Justice System's Performance When a Long Complex
Case is Seen to Have Failed
2. Managing the Unrepresented Accused
A.Introduction
B. Appointing Amicus Curiae
C. Appointing Counsel
2. Conclusion
3. Appendix A: Review Participants
4. Appendix B: Recommendations

Next Page >

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164
Saturday, January 10, 2009 | Today's Toronto Star | Login
TheStar.com | Ontario | Report laments legal aid snag

Most cases go to junior defence lawyers who lack experience, creating 'vicious circle,' authors find
Nov 29, 2008 04:30 AM
Comments on this story (2)
Tracey Tyler
Betsy Powell
Toronto Star

The defence of people charged in some of Ontario's biggest criminal cases – as well as millions in public
money – is being placed in the hands of unseasoned junior lawyers, some with less than four years
experience, a new report says.
More than half of all legal aid certificates issued in complex criminal cases are going to lawyers who have
been practising fewer than ten years and lack the judgment needed to conduct trials in a focused manner,
according to the report.
The report was released yesterday at a Queen's Park news conference by Attorney General Chris Bentley.
It's aimed at moving large cases through the justice system faster and avoiding the fate of a recent
corruption trial involving Toronto police officers, which collapsed this year after a decade in the courts.
Bentley was joined by the report's authors, Patrick Lesage, a former chief justice, and Michael Code, a
University of Toronto law professor who once served as assistant deputy attorney general.
After combing through data from the files of Legal Aid Ontario, Lesage and Code found approximately
28 per cent of defence work in big cases funded by legal aid is performed by lawyers with less than four
years experience.
At the same time, the legal aid plan is attracting fewer and fewer senior lawyers. Most are unwilling to
commit themselves for months or years to cases at rates that don't cover their overhead. The top rate is
about $92 an hour.
"We appear to be trapped in a vicious circle: the longer criminal trials become, the less likely it is that
leading counsel will agree to conduct them on a Legal Aid certificate; and yet having leading counsel
conduct the defence in these cases is one of the solutions to the overly long trial," Code and Lesage write.
Among their 41 recommendations is a call for "enhanced fees" in complex cases, using criteria so
restrictive that only "the most able counsel" qualify. Frank Addario, president of the Criminal Lawyers'
Association, applauded the general principle of enhanced tariffs, arguing that paying more to lawyers will
prove "revenue-neutral."
"What's paid out will be recouped over and over by savings on everything else that drives up the cost of
complex cases," he said.
But while Bentley said both he and Premier Dalton McGuinty are determined to have "a faster, more
effective criminal justice system," he made no promises yesterday beyond a vague pledge to get legal aid
to "a better place." He's focused his attention on less expensive changes, including moving Crown
attorneys into police stations to advise police in the early stages of a case.
Doing so, said Bentley, addresses a recommendation by Lesage and Code that police and prosecutors
work more collaboratively on issues, including the disclosure of evidence to defence lawyers.
That was one of the troubling areas cited by a judge in the police corruption case that precipitated the
report. In staying charges against six drug-squad officers, Justice Ian Nordheimer quoted a letter from
RCMP Chief Superintendent John Neily, imploring the Crown to help manage the mountain of
documents in the investigation. He got no response. Nordheimer blamed the Crown for much of the delay
that led to the stay. The Attorney General has appealed.

165
Bentley said yesterday Crowns will be assigned to police stations in Toronto, Peel, Ottawa and Windsor.
But some defence lawyers involved in large-scale prosecutions are skeptical.
"The Crown and police can't be any closer than they already are," said defence lawyer Richard Posner.
"Police have access to Crown attorneys around the clock."
Daniel Brown said special prosecutors have been involved in the earliest stages of several gang projects,
yet Ontario is still experiencing lengthy trial delays.
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Hope
I never get to court for any reason, big or small...I don't want my life wasted there.
Submitted by bigsaf at 4:34 AM Monday, December 01 2008
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This comes as no surprise.
The poor have always known that there is a two tiered system of justice in Ontario - one for those who can
afford a decent legal defence and, one for those that cannot. Does this really come as a surprise to anyone?
Submitted by spiritofwicca at 7:12 AM Saturday, November 29 2008
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166
167
2003 - 2004 Business Plan (February 2003) BLACK BOOK IV says no more Law
Message from the Chair Society existence unjustified by own admittance,
Ontario’s justice system depends on legal aid BLACK BOOK V demands LSUC take a dive
Mandate System to be immediately restructured legally
Vision consistent with the Constitution= Charter rights
Understanding Our Environment
2003/04 KEY CORPORATE INITIATIVES
Meeting the Vision: Key Achievements Since 1999/2000
Financial Pressures
Message from the Chair
I am pleased to share with you our 2003/04 business plan. The
plan demonstrates our continued progress and sets out Legal Aid
Ontario’s (LAO) commitments for the coming year. It reflects our
goal of achieving excellence in accessibility and quality of service
and shows you how we’re managing to achieve that goal. The
plan also outlines what we’ve accomplished so far and our
strategies and commitments for creating a better legal aid system.
In my view, Ontario’s system already has a well-deserved, world-
class reputation. We provide legal services to over 1 million
people a year. That’s over four thousand people that we help
every single working day of the year.
Over the last three years LAO has been in a state of transition,
continually finding ways to improve legal aid services for low-
income Ontarians and the supports for our service providers. We
have built the foundation to ensure access to justice for low-
income individuals. LAO has significantly increased client
services within our existing budget. We have restructured our
certificate and duty counsel services, provided more targeted legal
assistance, addressed unique client needs, and significantly
improved our cost management.This year, LAO and lawyers who
do legal aid work successfully persuaded the government to
recognize the importance of making legal aid work more
affordable to do. The Attorney General announced the first
increase to the legal aid tariff in 15 years. The Attorney General
has also indicated that another increase in the
Encouraging and facilitating flexibility and innovation in the
provision of legal aid services, while recognizing the private bar
as the foundation for the provision of legal aid services in the
areas of criminal law and family law and clinics as the foundation
for the provision of legal aid services in the area of clinic law;
Identifying, assessing and recognizing the diverse legal needs of
low-income individuals and of disadvantaged communities in
Ontario; and
fulfill our mandate to promote access to justice throughout
Ontario for low-income individuals.
Identified and responded to client needs
LAO has significantly increased client services within its existing
budget by restructuring its certificate and duty counsel services,

168
providing more targeted legal assistance, addressing unique client
needs, and improving cost management.
Increased duty counsel services
LAO has recently completed three pilots of expanded family duty
counsel services. The expanded duty counsel system uses a mix of
private and staff lawyers to provide continuity of representation,
document production, file maintenance, and improved early case
resolution.
LAO supports specialized courts through experienced duty
counsel who provide dedicated service to clients with special
needs (e.g. mental health and drug courts) appearing in those
courts. Most recently, dedicated duty counsel services have been
extended to the new Gladue (Aboriginal Persons) Court in
Toronto.
This year the Tenant Duty Counsel Program (TDCP) began to
offer free summary legal advice and limited representation to
tenants appearing before the Ontario Rental Housing Tribunal.
The program includes seven full-time duty counsel providing
support to tenants in Toronto and Peel. The TDCP has also
developed partnerships with community legal clinics and the
private bar to serve communities throughout Ontario.
Expanded clinic services
LAO has moved aggressively to close gaps in clinic services
across Ontario. Unequal service and access to this important legal
aid program for low-income Ontarians has been addressed by:
Completed geographic expansion of clinics to ensure that low-
income individuals in all parts of the province have access to
clinic law services, including opening five new general service
clinics, and the expansion of 10 existing clinics into new areas.
Expanded French language services through partnerships with the
Centre médico-social communautaire in Toronto and the Centre
des services comunautaire de Vanier in Ottawa, which will
develop and run clinic law services for Francophones.
Approved pilot project funding for the South Asian Legal Clinic
Ontario initiative (SALCO) to provide advice and representation
to low income members of the South Asian community in the
areas of social assistance and refugee/immigration law.
Developed flexible and innovative services
LAO may have the most innovative and far-reaching legal aid
pilot/alternative service delivery program in the world.
Pilot projects are designed to experiment with different ways of
delivering services, to determine if a mix of service delivery
methods can improve service to clients, make the service more
accessible or more cost effective.
Some of the significant innovations and pilots undertaken recently
include:
Video-conferencing for in-custody applications;
Funding for Aboriginal community justice programs;
Youth Criminal Justice Act pilot;
Youth Criminal Justice Act educational program;
Three family law staff offices;
169
Expanded duty counsel services;
Funding for Nishnawbe-Aske Legal Services Corporation to test
"community circle" principles in Aboriginal child protection
cases;
Improved services to victims of violence through significant
funding to the Barbra Schlifer Clinic for specialized legal
services;
A special pilot in downtown Toronto to provide legal aid services
to the homeless;
An inmate appeal duty counsel program.
Improved research services for lawyers
LAO’s Research Facility undertook its first review in twenty
years in 2001. The facility has been re-named LAO LAW, offers
new services and is fully online to all LAO service providers.
Provided a flexible tariff
In July 2002, the Attorney General announced the first changes to
the legal aid tariff in over 15 years. Legal Aid Ontario and
lawyers who do legal aid work successfully persuaded the
government to recognize the importance of making legal aid work
more affordable to do.
Highlights of the tariff increase include:
A five per cent increase to hourly rates applies to all certificates
issued on or after August 1, 2002.
Duty counsel rates increase by $13.35 per hour (23 per cent), for
an hourly rate of $70.35 per hour. Duty counsel appearance fee
remains at $40.
In the remote North - Cochrane, Kenora, Rainy River,
Temiskaming and communities served by Nishnawbe-Aski
Nations (NAN), lawyers will receive an incentive for duty counsel
and certificate work. Hourly rates for work and for travel will be
paid at a rate of 10 per cent above the regular tariff rate. For fly in
courts and to destinations 200 km or more from lawyer’s offices,
the tariff will provide a guaranteed daily rate of $800 on
certificate and duty counsel assignments.
Strengthened stakeholder and community partnerships
For most of its history, the legal aid program in Ontario was the
"silent partner" in the justice system. This meant that justice
system decisions were often made without reference to their effect
on legal aid services and costs. It also meant that the legal aid
program was unable to offer creative and constructive assistance
on issues of mutual concern. Since its creation, LAO has
emphasized its role as a full partner within the justice system.
This year, LAO has added a number of new partners to our
already extensive list.
LAO is a supporter of the Ontario Justice Education Network,
which operates the Courtrooms and Classrooms program, held a
Summer Law Institute to train high school teachers and produced
lesson plans on justice issues for Grade 10 civics.
LAO is a primary supporter of Pro Bono Law Ontario, a new
enterprise that promotes, facilitates and develops the provision of
pro bono legal services to persons of limited means.
170
LAO’s tariff reform strategy and business case were formulated in
partnership with service provider lawyers. They were based on
input from consultations, surveys, interviews and focus groups
with service provider lawyers.
New complaints process
LAO has developed a new process for complaints. It calls for
local resolution of complaints in the office, clinic or department
that is being complained about, before a complaint proceeds on to
a renewed LAO Complaints Department.
Management reorganization and renewal
LAO has modernized its senior management and organizational
structure to improve operational decision-making, linkages and
efficiency. Two new departments – Office of the General Counsel
and Policy, Planning, and External Relations – were created to
improve LAO’s legal support and business analysis/information
management.
The ongoing reorganization and strengthening of the Finance
Department has resulted in support for the budgeting process
through improved financial analysis, cost forecasting and
streamlined internal financial controls.
LAO has reviewed and re-organized its Investigations Department
to ensure that lawyers are paid appropriately. LAO conducts
frequent random surveys of clients to determine whether accounts
rendered reflect the actual hours spent on cases.
Improved technology and modernization
Significant progress was made towards completely overhauling
the LAO’s business and technology systems. The new technology
and business process system—called the Total Service Network
(TSN) – will be implemented within the next two years. The
technology is web-based and, allows service access from
anywhere. The new system will speed up application processes,
allow off-site application taking (e.g.: in courts), speed up
accounts payable and focus legal accounts management on a risk
system.
After an extensive RFPdevelopment and evaluation process, LAO
awarded a contract in October 2002 to Cedar Solutions Inc. to
implement PeopleSoft version 8 software as its TSN solution. We
have established sophisticated project teams and contract
management processes to ensure that TSN implementation is on
time and on budget.
In the fall of 2001, LAO introduced electronic billing for lawyers
and rolled it out across the province. To date, thousands of
accounts have been e-filed with no complaints and improved
service. E-filing must be accompanied by direct deposit. As of
August 2002, LAO paid approximately 75 per cent of its accounts
by way of direct deposit.
LAO invested in clinic information technology, including capital
purchases, funding for IT training and Web site development, the
development of standard templates, and an IT Store from which
clinics can order equipment that suits their service needs.
Advanced clinic law services
171
LAO has implemented the first-ever memorandum of
understanding (MOU) with the community legal clinic system.
The MOU sets out the roles and responsibilities of LAO and
individual clinics. As of February 2003, 56 clinics have entered
into the MOU with the remaining clinics to follow shortly.
LAO is now finalizing the first-ever memorandum of
understanding and funding agreements with the province’s student
legal aid societies. The MOU will recognize the unique role of the
SLASSs in providing clinical legal education opportunities for
students.
Managed Certificate Costs
In 2000/01, LAO identified potential budget overruns on the
certificate program and initiated steps to reduce the overage
through a three-year cost reduction program. The certificate
management program has allowed LAO to reduce total certificate
program costs while ensuring that low-income individuals receive
services where they are most critically needed or required by law.
As a compliment to LAO's Big Case Management Program
(BCM), LAO established the Exceptions Committee, a group of
experienced private bar lawyers and legal aid staff which reviews
cases with special circumstances where the budget is likely to
exceed $75,000.
The goals of the BCM program are to: monitor, control and
predict case costs; provide counsel with appropriate resources for
high quality, effective service delivery and to ensure the criminal
bar continues to accept certificates for big cases.
LAO gives individual consideration to each big case and works
with the lawyer to tailor a budget to the requirements of that case.
This helps LAO to better manage its costs, and ensures that the
lawyer can plan his or her defence strategy accordingly.
Developed comprehensive and meaningful performance standards
LAO is moving quickly to implement quality assurance
throughout its programs. LAO is aligning itself with Ontario
Public Service and provincial agency best practices with respect
to continuous improvement, performance measurement and
accountability for results.
Implementation of client service measures has already begun
throughout LAO’s 51 area offices and provincial office
operations. Clients include private bar lawyers and other service
providers.
LAO’s Quality Assurance Program (QAP) has completed
comprehensive reviews of the governance and management
processes in Ontario’s community legal clinics. These reviews are
performed against a set of criteria to ensure that clinics are
providing high quality legal services. The criteria also include
standards that must be met with respect to such goals as
accessibility, effective community legal education and legal file
management.
QAP also produces a number of bulletins and other documents
intended to disseminate better practices in client service, case
management and law practice management throughout the clinic
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system. QAP has produced and will maintain a Better Practice Kit
in consultation with the clinic system.
Improved new lawyer recruitment
Legal Aid Ontario offers significant benefits to new lawyers and
can direct them on a path to a successful career.
The future of legal aid services also depends on LAO's ability to
attract new, young lawyers to certificate work. LAO has
developed materials that highlight the rewarding and different
career opportunities in the legal aid system. LAO participated in
student job fairs at law schools to provide more information on
legal aid career opportunities and at the Bar Admission Course.
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Financial Pressures
At the inception of Legal Aid Ontario, the Government of Ontario
committed to three-year funding. LAO received $230M in fiscal
2000 and $227M in fiscal years 2001 and 2002. The same level of
funding continued for fiscal 2003.
LAO is requesting continued three-year stable base funding for
legal aid services and additional funding to respond to key service
delivery, operational and capital pressures. LAO has identified
three priority funding issues for 2003/04.
LAO reiterates the need for a three-year funding commitment
from the provincial government. The government recognized the
importance of multi-year funding for provincial agencies and
transfer recipients in the 2002 Budget Statement. In addition, the
Legal Aid Services Act, 1998 explicitly commits LAO and the
province to three-year operating cycles. The province’s initial
three year funding commitment to LAO has now lapsed. A
renewed multi-year funding commitment including capital
renewal would allow us to plan our services and finances much
more effectively.
LAO has significantly increased client services within our
existing budget. We have restructured our certificate and duty
counsel services, provided more targeted legal assistance,
addressed unique client needs, and significantly improved our cost
management.

We will continue to meet the challenge of increased demand


through our new Client Access and Service Program. The
objectives of this program are to expand client services, to ensure
consistent access to high quality services, and to diversify legal
aid service delivery models.
The province responded to LAO's request for tariff reform with an
increase to hourly rates of 5 per cent for certificate work and 23
per cent for duty counsel work in July 2002. The province
subsequently stated that it would announce a comparable increase
in the tariff hourly rates in April 2003 and that it would consider a
regular tariff review process.

LAO is committed to working with the Attorney General to stress


the importance of maintaining these commitments. Both are
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crucial to our ability to retain private counsel to provide legal aid
services across the province.
Draft Operating Budget

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