Legislative Assembly of Ontario

SUBCOMMITTEE REPORT

LEGAL AID SERVICES ACT, 1998 LOI DE 1998 SUR LES SERVICES D'AIDE JURIDIQUE

ROMAN CATHOLIC DIOCESE OF THUNDER BAY

DIOCESAN OFFICE OF REFUGEE SERVICES--DOORS TO NEW LIFE REFUGEE CENTRE

DISTRICT OF KENORA LAW ASSOCIATION

ONTARIO NATIVE WOMEN'S ASSOCIATION

THUNDER BAY LAW ASSOCIATION

PERSONS UNITED FOR SELF-HELP IN NORTHWESTERN ONTARIO

CONTENTS

Monday 16 November 1998

Subcommittee report

Legal Aid Services Act, 1998, Bill 68, Mr Harnick /

Loi de 1998 sur les services d'aide juridique,

projet de loi 68, M. Harnick

Roman Catholic Diocese of Thunder Bay

Ms Liz McWeeny

Diocesan Office of Refugee Services -- DOORS to New Life Refugee Centre

Ms Mary Kozorys

Mr Mohamed Ahmed Wais

Mr Patricio Perez

Ms Luda Shnitsar

Mr Ismel Gonzalez

District of Kenora Law Association

Mr David Gibson

Ontario Native Women's Association

Ms Marlene Pierre

Ms Audrey Gilbeau

Thunder Bay Law Association

Mr Kevin Cleghorn

Mr Mike Montemuro

Persons United for Self-Help in Northwestern Ontario

Mrs Marilyn Warf

STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE

Chair / Président

Mr Jerry J. Ouellette (Oshawa PC)

Vice-Chair / Vice-Président

Mr E.J. Douglas Rollins (Quinte PC)

Mr Dave Boushy (Sarnia PC)

Mr Bruce Crozier (Essex South / -Sud L)

Mr Peter Kormos (Welland-Thorold ND)

Mr Gerry Martiniuk (Cambridge PC)

Mr Jerry J. Ouellette (Oshawa PC)

Mr David Ramsay (Timiskaming L)

Mr E.J. Douglas Rollins (Quinte PC)

Mr R. Gary Stewart (Peterborough PC)

Mr Bob Wood (London South / -Sud PC)

Substitutions / Membres remplaçants

Ms Annamarie Castrilli (Downsview L)

Mrs Lillian Ross (Hamilton West / -Ouest PC)

Also taking part / Autres participants et participantes

Mrs Lyn McLeod (Fort William L)

Clerk / Greffière

Ms Tonia Grannum

Staff / Personnel

Mr Avrum Fenson, research officer, Legislative Research Service

The committee met at 1100 in the Valhalla Inn, Thunder Bay.

SUBCOMMITTEE REPORT

The Chair (Mr Jerry J. Ouellette): I call this committee to order. I'd like to thank everyone for joining us here on the first day of hearings in Thunder Bay, reviewing Bill 68, the Legal Aid Services Act.

At this time, do we have adoption of the minutes of the subcommittee?

Mr Bob Wood (London South): So moved.

The Chair: Mr Kormos.

Mr Peter Kormos (Welland-Thorold): I should indicate first that Ms Martel appeared on my behalf at the subcommittee.

The Chair: So she did.

Mr Kormos: I thank her for that. I was unavailable, and I appreciate her subbing for me on the subcommittee.

The subcommittee report is unremarkable but for paragraph 7. Take a look at that. That is where the subcommittee recommends that the committee merely issue a press release in Thunder Bay, Ottawa and Toronto informing the public and interested parties about the hearings. That obviously is in contrast to the traditional form of advertising, the very modest advertising that appears in every paper in the area, be it weeklies or dailies, and in French-language newspapers.

Again, I wasn't at the subcommittee, so I'm not about to criticize that subcommittee function, but I am about to criticize the recommendation, because it's remarkable that this government will spend millions and millions upon millions of dollars on glossy, full-colour, full-page, radio, newspaper, television, door-to-door propaganda advertising, yet the impression one gets is that this government isn't prepared to engage in those very modest black-and-white ads that appear usually only once in regional newspapers to advise the public of a pending committee presence.

It's imperative that the committee process have more effective communication than the mere reliance upon press releases, and I quite frankly don't even know if the local papers picked up the press release. They may well have. Local people may speak to that.

But the fact is that it's discretionary, and it seems to me, in view of the hundreds of millions of dollars that this government has spent on advertising, slick, glossy, minimum three-colour advertising, most of it, full-page ads, ads in the Toronto papers and in local dailies that are tens of thousands of dollars a crack, propaganda ads, its vicious 25-minute ad paid for by the taxpayers of Ontario which has no basis in reality, its most recent ad, which attempts to defend the government's shutdown of hospitals across the province in contradiction of what Mr Harris promised during his election campaign in 1995, along with the stuff that's appearing on our doorsteps, glossy stuff -- the last one was on workfare. Did you get the workfare one? Did you get that in your area, Chair? We got it down in my area, and it touted the rat line, you know, the fink line: Turn in a welfare recipient.

I suggested in the Legislature the other day that people who got that should respond and they should turn in a welfare recipient. They could start with Andersen Consulting, because they're the real welfare fraud artists, aren't they? People who get that workfare pamphlet from the government, paid for with your money, indeed should put a name and address in it and identify a welfare fraud artist, and start with Andersen Consulting, who are on a private retainer to the government and have ripped off the taxpayers of this province for millions of dollars.

I just find it absurd that this committee couldn't see its way clear to pay for some modest black-and-white, pure message newspaper advertising, as is traditional. The clerk has the format -- you know that, Chair -- that has been used for the 10 years I have been at the Legislature. It's designed to provide, in a very compact way, information about a pending committee hearing so that as many people as possible have access to that hearing or at least are notified of it.

Somebody may argue that the use of the legislative channel is adequate. Please. Not everybody in this province gets cable television, and the only way you get that legislative channel with the ads, so far as I'm aware, is on cable television. Even in places where you've got cable television, do you know what cable costs? Down where I come from, because those bandits have just applied --

Interjection.

Mr Kormos: They are. Those rip-off artists have just applied to the CRTC for an increase, and basic cable down in Niagara, which is not as expensive as it is in Toronto, is climbing up to around 16 bucks a month. That's for the basic, very bare-bones cable. The most modest of packages is up around $30 or $35 a month. Do you understand that more and more people in Ontario can't afford cable television? The argument that the recommendation by the subcommittee includes using the Ontario parliamentary channel is far from adequate. One, not all of the province gets cable television; two, bigger and bigger chunks of people in Mike Harris's Ontario can't afford cable television.

Second, the parsimonious -- is that the right word? I suppose it is. The parsimonious approach to traditional advertising of pending committee hearings in contrast to the rather -- the last time somebody accused the government of spending money like drunken sailors, they offended both drunks and sailors, so I won't suggest the government is spending money like drunken sailors, but I'll suggest that they're taking the taxpayer for a ride in terms of the glossy propaganda advertising. Again, refusing to advertise a committee hearing, in contrast to the millions and millions spent touting the government's attack on publicly funded education and health care, among other things, and its attacks on the poorest people in the province, seems to me a real hypocrisy.

Mrs Lyn McLeod (Fort William): I would like to preface my comments following Mr Kormos's comments on the subcommittee minutes by welcoming the committee to Thunder Bay. I'm really very pleased that the committee is here. I was keen to see the committee come on its travels to Thunder Bay. We're always anxious to have committees come to northwestern Ontario. We think that our realities in virtually every area are different from what you'll encounter in any other part of the province, so it's important for us in northwestern Ontario to have committee hearings here on any given subject.

The question of legal aid is an important one for us in this area. I know the legislation itself is essentially a restructuring. As a restructuring effort it is not terribly controversial, but the underlying issue that has led to the restructuring and therefore to this legislation is access to legal aid and access to justice, and those are issues which are of extreme importance to people in my community and across northwestern Ontario. So I'm delighted to have the committee here, and I think the presentations we'll hear from people from this region are important ones for the committee members to hear.

That adds to my sense of concern about the issue that Mr Kormos has raised, the decision of the subcommittee not to do any advertising of the fact the committee would be here. I know the local media received a press release and that they are conscious of the fact that the committee is here today, but I think the majority of the people who have requested to make presentations are here as a direct result of contact from our office letting people know the committee would be here and what the subject would be. That concerns me, because I think the issue is important enough that there should be a broader community awareness that this issue is being discussed.

With that in mind, I would like to ask if we could have the rationale for a decision that there is not to be a more traditional approach to advertising when committees are on the road. Quite frankly, the committee almost didn't come, because without the public being aware that the issue was to be discussed and that there was an opportunity to have the committee here -- as you know, if you don't have at least four presenters you're not going to have the committee come; it's going to be done by conference. The time lines are very tight to get presenters in and to be able to get an assurance that we can host the committee in Thunder Bay, so if I could get some rationale as to why the ground rules have been changed for this committee, I'd appreciate it.

The Chair: In response to that, in discussions of the subcommittee it was brought up, and I brought up the advertising aspect. The response from the committee dealt with the fact that there wasn't an overwhelming response from people on the legislation and the feeling was that a press release would be satisfactory. That was the response from the subcommittee. Had members other than myself brought it up, a change, then quite possibly we could have gone ahead with the advertising.

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Mr Kormos: That speaks to the very problem. How can you expect a response if the committee process isn't well publicized? Do you realize the shortsightedness and the illogic of that? Please understand me. Without being personally critical of you -- you know I have the highest regard for you -- that's a stupid conclusion to reach, because it's inherently contradictory. You say there wasn't a strong response to the bill; therefore, the subcommittee decided not to publicize the committee hearings. How the hell can you expect a response if the people don't know that it's going on?

If you want to refute my comments about cable television, please do so, but I've already outlined for you that those advertisements don't historically just appear in one paper when a committee appears regionally but appear in a multitude of papers, because some people in smaller communities access their weekly; others use the daily paper out of Thunder Bay like the Chronicle, I suppose. Sorry. That logic does not fly. I think if you --

The Chair: Had you been in attendance during the subcommittee hearing, then that perspective should have already come forward.

Mr Kormos: No, no. But wait a minute. I've already made it clear that I wasn't here and Ms Martel subbed. You explained the rationale for the subcommittee taking that approach. I'm saying the rationale doesn't fly. What are you saying now?

That's why the subcommittee report comes before the committee. I'm doing exactly what the committee's entitled to do, and that is, during the course of debating the subcommittee report, raising issues about it. Don't say, "What if?" If the dog hadn't stopped to pee, he would have caught the rabbit. I understand that. If I had been at the subcommittee, I would have raised it there. The fact is I wasn't; I had a substitute. That's not out of order. I'm raising now how illogical it is for you to say that because there didn't appear to be a lot of interest, the subcommittee decided not to advertise.

Mrs McLeod: Just briefly, because we do have presenters waiting and we're anxious to hear from them, our office notified a number of groups that the committee would be here or could be here. We did not have to persuade anybody to come and present. There was a very high level of interest among people once they realized that the committee was going to come to Thunder Bay. That speaks to the fact that if there's not an awareness that it's there, then as Mr Kormos says, you're not going to get a sense that there's an overwhelming level of interest. But the issues of legal aid and access to the justice system are areas that people are extremely concerned about.

Had there been broader knowledge that the committee is not only coming to Thunder Bay but is going to be in other communities -- and I think there is still time to address this issue; otherwise, you're not going to be able to measure the level of interest that's there. If there's a purpose in committees going out, and obviously there is, then it's to make the public aware that issues of important public interest are being discussed and to welcome their presentations. I don't think the fact that they are not showing interest because they haven't been advised that they have a chance to provide input should be a reason for not giving them notice that they will have that opportunity.

The Chair: Mine is not a position of explanation; mine is merely bringing forward the decision of the subcommittee and how it was arrived at.

Mrs McLeod: Is it possible, Mr Chairman, and would there be a purpose in revisiting the subcommittee decision before the committee continues to other communities?

The Chair: Mr Martiniuk.

Mr Gerry Martiniuk (Cambridge): The committee has to vote on the subcommittee report for the purpose of the record. The subcommittee is made up of the chairman, Mr Ouellette; a member of the Progressive Conservative caucus, being myself; a member of the Liberal caucus, and a member of the third party caucus. There was discussion that took place, and the subcommittee unanimously reached its conclusion and made the recommendation. The government caucus would be supporting the subcommittee report.

Mr Kormos: That still doesn't change my criticism of the decision.

The Chair: No, certainly.

Mr Kormos: Mr Martiniuk, I have no choice or alternative at the moment but to accept the version that there was a consensus reached on the issue. If that's the case, then so be it. But I still have no hesitation in criticizing that report, notwithstanding that one of my colleagues was present. It was the wrong decision.

The Chair: I might add that the Chair is not a voting member of that committee.

Further discussion? Seeing none, all in favour --

Mr Kormos: Recorded vote, please.

Ayes

Boushy, Castrilli, Martiniuk, Ramsay, Bob Wood.

Nays

Kormos.

The Chair: The subcommittee report carries.

LEGAL AID SERVICES ACT, 1998 LOI DE 1998 SUR LES SERVICES D'AIDE JURIDIQUE

Consideration of Bill 68, An Act to incorporate Legal Aid Ontario and to create the framework for the provision of legal aid services in Ontario, to amend the Legal Aid Act and to make consequential amendments to other Acts / Projet de loi 68, Loi constituant en personne morale Aide juridique Ontario, établissant le cadre de la prestation des services d'aide juridique en Ontario, modifiant la Loi sur l'aide juridique et apportant des modifications corrélatives à d'autres lois.

ROMAN CATHOLIC DIOCESE OF THUNDER BAY

The Chair: At this time we would call upon our first presenter, if the representative or representatives of the Roman Catholic Diocese of Thunder Bay could come forward. Just so you know, there is a total time allocated of 20 minutes. At the conclusion of any presentation you may have, the time remaining is divided equally between the three caucuses. Thank you for coming, and you may begin.

Ms Liz McWeeny: Thank you very much for coming to Thunder Bay and for providing us with an opportunity to present today. I have submitted a written brief. I will be going through part of it during the oral presentation. I am the refugee sponsorship coordinator for the Roman Catholic Diocese of Thunder Bay. The Roman Catholic Diocese of Thunder Bay has a long history of working with and for refugees, both those we sponsor and those who come to our community seeking asylum. The diocese has assisted with refugee claimants since the 1980s, and I have been involved since that time in that work.

It is with particular focus on refugee claimants that the diocese is making this representation today. I am not a lawyer and thus speak from the lay perspective and as a member of a church community that wishes to ensure that refugee claimants have the fairest possible opportunity to present their history during their refugee determination process. In reviewing the text of Bill 68, there are some aspects of the proposed changes that concern us with respect to refugee determination.

Subsection 13(1) specifies the types of services to be provided under the new legal aid plan and does not include refugee or immigration law. Further to this, subsection 65(6), which outlines the budget parameters, gives a guarantee of funding for refugee and immigration matters at existing rates, but only for the next two years, and does not make provision for anything beyond April 2001.

We also note that refugees and immigrants are the only vulnerable communities currently receiving legal aid who will be excluded under Bill 68. This causes us grave concern. Bill 68 fails to maintain even the status quo of discretionary legal aid services for refugee claimants even when the existing level of access is unsatisfactory and flawed. It is our hope that instead of eliminating all legal aid for refugee claimants, Bill 68 will be amended to recognize the immense importance of qualified legal representation during the refugee determination process.

The purpose of the act as stated in section 1 refers to the promotion of access to justice for low-income individuals and to meeting the needs of disadvantaged communities in Ontario. We would urge the government of Ontario to recognize that refugee claimants are part of that portrait.

Why do refugees need legal representation?

The gravity of the consequences: We understand that one of the tests to determine eligibility for legal aid is the severity of the consequences or the punishment for the applicant, such as a jail term. For a refugee, the failure to make a successful refugee claim before the IRB means the refugee will likely be returned to their country of origin and face serious sanctions. This often includes imprisonment and torture and sometimes execution. The lack of a meaningful appeal process to the IRB only serves to emphasize the importance of the refugee's one opportunity to be heard.

The nature of the process of refugee determination: The process of making a refugee claim in Canada is supposed to be non-adversarial and non-threatening. In practice it is entirely the opposite. It is bewildering, frightening and extremely threatening to most refugees. The Immigration and Refugee Board hearing is a one-time opportunity for a refugee to present her claim. It is highly stressful both because of its one chance and because of what is at stake.

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In the brief presented to this committee, we have described at some length the reasons why a refugee needs legal counsel because of their experience as a refugee. Just to summarize, the interviews are sometimes very adversarial and cross-examination can be stern and aggressive. The recounting of tragedy may retraumatize the refugees so that they cannot respond to questions, and that may be interpreted as insolence or avoidance, and almost certainly affects their credibility.

Refugees who have been tortured or sexually abused are often afraid to speak of their experiences.

Refugees come from countries where authority figures are often agents of persecution, and they come from cultural and linguistic backgrounds that are completely unfamiliar with quasi-judicial types of immigration hearing proceedings or the status determination process.

The presence of legal counsel at the actual interview is to facilitate the emergence of the refugee's history by drawing the information out of the claimant and by using other evidence and expert testimony to support what the refugee may be unable to speak about herself. This can only take place effectively if the lawyer and the refugee have had the time to establish a trust relationship, to speak about the truth of the refugee's experience and to prepare for the actual hearing. This process take time.

We know first-hand how important the preparation time is. It has been our role over the years to spend time with refugees to help them prepare their narratives for their lawyers. Their history emerges over several sessions and in no particular order. Where there has been severe trauma, it often takes a long time for the refugee to trust enough to disclose or even to give a hint of what they have experienced.

In a recent example, I asked a refugee claimant to write for me his story about why he was making a refugee claim. The first version he gave me was three lines long. That's where we begin. If he were in an IRB hearing, that is where it would end if he was unrepresented by counsel.

There are advantages to the system in having legal representation for refugee claimants. The Ontario Legal Aid Review report of 1997 states that unrepresented claims take longer to hear and are fraught with delays, adjournments and incomplete submissions -- incidents of personal information forms being submitted in the language of origin, the failure to provide supporting testimony, the inability to provide case law references. Furthermore, if refugees are no longer represented by counsel, the length of hearings will cause huge delays in the processing of the number of claims.

There is also an issue of procedural fairness to be raised with respect to the issuance of country information packages that are part of the evidence presented by the immigration department at the refugee hearing. By sheer volume, the country information packages are inaccessible to many refugees. Unless counsel is able to sift through the package and have relevant items translated for the refugee, it may be argued that since claimants cannot know the case against them, the requirements of procedural fairness are not met.

With respect to international agreements and conventions, the Geneva convention and the 1967 protocol relating to refugee protection do not prescribe the manner in which individual countries determine refugee status. However, the Executive Committee Conclusion of 1977 and the UNHCR Handbook on Procedures for Determining Refugee Status do describe the vulnerable situation of the refugee claimant and set out certain basic criteria under which the refugee determination must take place.

Section 192(ii) of the handbook recommends that "The applicant should receive the necessary guidance as to the procedure to be followed." And section 192(iv) further states that "The applicant should be given the necessary facilities...for submitting his case to the authorities...."

Given the complexity and the formalized nature of the refugee determination process as it has evolved over the last two decades, it may be stated that representation by counsel is required to ensure that the UNHCR requirements are met.

Furthermore, the found in library press highlights

Inter-Church Committee on Refugees tells us that "the right to legal counsel is a necessary component of the right to a fair trial in international law.... The right to a fair trial with legal counsel applies to any international treaty right including the right to asylum and related appeals."

Given that provinces are responsible for complying with both the charter and treaty obligations, and that legal aid is a provincial responsibility, it may be stated that legal representation in refugee determination should be assured by the province.

Why should Ontario pay for legal aid for refugee claimants?

With respect to federal-provincial responsibilities, refugee claimants have no entitlement to legal aid under the present act, except with discretion. Bill 68 proposes to further erode the ability of refugee claimants to access discretionary legal aid. It is our belief that this must be changed to ensure that refugee claimants are entitled to legal aid in Ontario.

The responsibility for immigration rests with the federal government. It is sometimes argued that costs for the IRB hearing are a federal responsibility. However, this is not entirely clear. Funding for refugee and immigration matters is covered under the federal general transfer payments and allocated by the province to refugee and immigration matters. Moreover, legal aid falls within the provincial jurisdiction under subsection 92(14) of the Constitution Act, which refers to the administration of justice in the province.

There is a parallel model in Ontario that negates the argument that legal aid for refugee claimants is purely a federal matter. Legal aid has a primary focus in providing assistance for matters of criminal law, including federal criminal matters. The parallel may be drawn that refugee law should not be excluded on the basis that it is a federal matter.

Lastly, the provincial government of Ontario, like other provinces, is currently in negotiation to assume greater control and responsibility from the federal government for refugee and immigration resettlement and stands to benefit from the successful establishment of refugees who arrive in Ontario as inland claimants and who remain to become productive and contributing citizens. While we do not suggest a cost-sharing formula, we urge the province of Ontario, as suggested in subsection 57(l), to enter negotiation with the federal government on this issue and to refrain from using refugees as pawns in the discussion.

With respect to financial inability to pay for counsel, most refugees, by virtue of their situation, do not arrive with the financial resources to pay for their own legal representation. Many are supported on welfare, at least until they can obtain work. With the cuts to welfare support, the payment of legal fees is an impossibility. The requirement that refugee claimants' relatives be obligated to pay their costs is often impossible to meet.

With respect to eligibility: Because refugee claimants are deemed to be non-residents of Ontario and because the IRB is an administrative tribunal, their eligibility for legal aid is discretionary. There are some issues that need to be addressed with this, which Bill 68 provides us with an opportunity to do.

The exercise of determining the viability of the refugee claim and the chance of its success before the IRB act as a first level to screen out refugee claims which the legal aid panel deems are without merit. Where the panel members have no refugee law background, this is particularly problematic. Even within our own jurisdiction we have seen similar case applications ruled in different ways. Most recently, in two similar cases where the refugee women's claims were based on domestic abuse, one claimant was awarded a legal aid certificate and the other was refused.

It may be suggested that this screen-out actually circumvents the mandate of the IRB. What it effectively does is create a second class of refugee claimants who are discriminated against because of wealth and who have reduced chances of success before the IRB because they have been denied legal aid and cannot afford to engage counsel on their own. Elimination of any legal aid to refugee claimants, as implied in Bill 68, will exacerbate this discrimination between the very few wealthy refugees and the vast majority who cannot pay legal costs.

With respect to the status of the refugee, the fact that refugee claimants are non-residents does not take into account their potential and intended status. They are not in a similar situation to persons who are in Ontario as visitors, as tourists or even as students. They are in Ontario because they intend to make their homes here at the very earliest opportunity, and are eager to begin work, pay taxes and become productive and contributing members of Ontario society.

Our own situation in northwestern Ontario: With the cutbacks last year, the hourly allocation was reduced from 29.5 to 16. We now have only one lawyer in Thunder Bay who will take refugee claimant cases under the legal aid plan.

As a church community, we are willing to provide a lot of support to refugee claimants. We help them with housing, with food, with basic living needs, and with friendship and emotional support. We cannot provide the legal expertise they need to present their claims before the IRB.

We are willing and in fact we do provide the lawyer with support in preparation for the refugee hearing. We help with the research. We spend many hours with the refugees as they prepare their statements. We know first-hand what it takes to allow a refugee to remember and disclose.

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We have worked with refugee claimants for 20 years, and the fact remains that with all the experience we have, we are still unprepared to represent a refugee claimant before the CRDD. The level of complexity of the legal process and the format of the hearings, the requirements of text submissions with legal case precedents is beyond our scope and most certainly beyond the scope of a claimant unrepresented by counsel.

You may wonder what we do to help claimants who are denied legal aid. Sometimes the lawyer will take a case pro bono. For the others we do whatever we can. I personally have immense discomfort in representing a claimant at an IRB hearing. Our resources to conduct legal research and present case law are inadequate. More importantly, the court-like culture, the language of the IRB hearing and the complicated methodology for submissions at the hearing and in post-claim recourse require legal training. I regret to say that claimants who we have to represent by ourselves are not well served and do not have an equal opportunity with those represented by counsel.

In conclusion, we believe that refugee claimants must be entitled to legal representation during the refugee determination process if they meet the financial needs test. The gravity of the consequences, the complexity of the determination process, the vulnerability of the refugee and their inability to access the system with procedural fairness, demand that they be guaranteed adequate legal counsel during the refugee status determination process.

Furthermore, we request that the procedures to develop from Bill 68 pertaining to the exclusion of non-residents contain an exemption for refugee claimants in recognition of their intended status in Ontario and taking into account the length of time in which they reside in Ontario before their cases are concluded.

Consequently, we urge the government of Ontario to amend subsection 13(1) to include refugee law in the list of specified areas of law provided by Legal Aid Ontario and to make the requisite changes in other sections of the bill and related legislation to support this amendment.

The Chair: Thank you very much for your presentation. The time only allows one caucus to ask one question, and we give it to the official opposition.

Ms Annamarie Castrilli (Downsview): How much time do we have?

The Chair: Just under three minutes.

Ms Castrilli: Thank you very much for being here today, Ms McWeeny, and for making such a cogent presentation. I understand you're one of the pioneers in this area in Thunder Bay. I wonder if you might tell me a little about the number of refugee claimants you have. How many of them could in fact afford their own defence and how many are unrepresented? I know that you have said you try to assist, but how many of them actually go unrepresented?

Ms McWeeny: How many are unrepresented at the moment? We currently have one case in our files who is unrepresented. We do not have a great number of refugee claimants arriving in northwestern Ontario, probably fewer than 10 per year. It's significantly different from southern Ontario. However, we also make this representation as a member of the Canadian Council for Refugees, to which we belong. My background in that organization led me to prepare this presentation not just on behalf of our local group but also with respect to refugees elsewhere in the province.

Ms Castrilli: In the experience of your organization on a broader basis, how many refugee claimants do you think would be unrepresented?

Ms McWeeny: I'm sorry, I can't answer that. I do know that the Canadian Council for Refugees will be making a presentation to you tomorrow, and they will probably have those figures.

Just to go back to your first question, I should add that although we currently have one claimant at the beginning of the process without representation, we have another one who was taken pro bono by a lawyer, and we have several refugee claimants in the post-claim process who do not have legal counsel.

Ms Castrilli: I understand the gist of your presentation is that this should be done as a human rights issue with respect to these particular individuals, but you're asking to go beyond what is now the status quo. I just want to be crystal clear on that. You don't want just discretionary legal aid for individuals; you want mandatory legal aid.

Ms McWeeny: Yes, that would be our request. Providing that the financial means test is met, we believe that all refugee claimants should be given legal representation before the IRB. We take issue with the screening that goes on with the local panel with respect to determining the merits of the claim and therefore granting the legal aid certificate on what are seen to be the merits. It is an unfair process in terms of how the refugee claimant is allowed to present their claim. The claim should be presented before the IRB, not before the local panel.

The Chair: Thank you very much for your presentation. We very much appreciate your coming forward today.

Mr Martiniuk: Mr Chairman, this might be an opportune time to interject that we left the matter of filing amendments and the time limits in your capable hands. Have you made a decision on that?

The Chair: We'll have that this afternoon.

DIOCESAN OFFICE OF REFUGEE SERVICES--DOORS TO NEW LIFE REFUGEE CENTRE

The Chair: Would the representatives from the Diocesan Office of Refugee Services -- DOORS to New Life Refugee Centre come forward. We would appreciate it if you could identify yourselves for Hansard. You may begin.

Ms Mary Kozorys: My name is Mary Kozorys, executive director of the Diocesan Office of Refugee Services -- DOORS to New Life Refugee Centre. The centre was established in 1993 as a community response to assisting refugees in their resettlement. We provide a number of supports for refugees including temporary housing and access to community services, as well as the important aspect of being a support to refugees through the complex determination process. At present we employ only one full-time staff person in the area of both refugee and immigrant resettlement, whose time is preciously divided in assisting refugee claimants through the complex determination process.

As we see through the work of our centre, the refugee determination process can be both frightening and overwhelming. Claimants come from radically different cultural, linguistic, class and educational backgrounds. The system requires that claimants compartmentalize their experiences into the components of a narrow, legal definition, recount their story in a prescribed format and establish themselves as credible according to legal norms that are often alien to them. Claimants rely on a single opportunity to state the facts. Adequate preparation by competent counsel facilitates the emergence of the claimant's own story. Lawyers can bridge the various cultural, social and linguistic gaps dividing claimant and decision-maker.

We have come as a community to attend the hearing today and, as such, the following co-presenters have unique thoughts to share on the necessity of legal counsel for refugee determination hearings. I'd like to introduce the first, Mr Ahmed Wais.

Mr Mohamed Ahmed Wais: My name is Mohamed Ahmed Wais. I'm a refugee from Somalia. I have been in this country for approximately one month. As I have no livelihood, I am being supported by DOORS until my case is finalized with Immigration. Seeing as I cannot get my necessities, it might be harsh if I am asked to bear responsibilities such as facing the cost of my legal expenses.

It is my feeling that a knowledgeable lawyer can advocate for my case and I do not think that I myself or anyone else could perform the same as a qualified lawyer on my behalf or any other refugee in my situation. I know that the Canadian government always has a good reputation and high integrity for assisting refugees coming to this country. I trust that they will continue to do the same.

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Ms Kozorys: I'd like to call on Patricio Perez.

Mr Patricio Perez: My name is Patricio Perez. I am from Honduras, Central America, and I have refugee status. I have a lawyer but she doesn't want to fight my case because she told me she received a call from Toronto saying they don't want to pay her. For that, she doesn't want to take my case.

Ms Kozorys: Thank you, Patricio. I'd like to ask Ludmyla Shnitsar, and I'm going to test my simultaneous interpretation skills, if I may, from the Ukrainian to the English language, so bear with me.

Ms Luda Shnitsar (Interpretation): My name is Luda Shnitsar and I'm from the Ukraine. In my view, a lawyer is very important for those people who have come as refugees. Since we have come as refugees without knowledge of the system, the lawyer helps us in every way. In my opinion, we need the assistance of both lawyers and refugee organizations such as DOORS.

Ms Kozorys: I wasn't expecting that comment.

Lastly, I'd like to call on Ismel Gonzalez.

Mr Ismel Gonzalez: My name is Ismel Gonzalez. I am a refugee claimant from Cuba. While I have been listening to Ms McWeeny's presentation and Ms Kozorys's presentation and the previous ones, what has really shocked me about all this is to think that the government of Canada can do something like this to us.

I say this because since the very beginning when I became a refugee claimant six months ago, the government of Canada has been really good to me and has given me so many things and so much support that I just couldn't believe it when I heard that there was a proposal to not give legal representation to us. This is really interesting because everywhere I go and every meeting I go to which is related to refugees and immigrants, there is always a problem: money.

It is true that a lawyer needs to be paid, but what is also true is that none of us has a very good economic situation to afford a lawyer. Also all the paperwork for us to start working takes, let's say, a long time, because two months is a long time. Since we don't have the money to afford a lawyer, it is really difficult for us to represent ourselves. Right now, this is not a hearing and I just feel like I'm dying. I feel so nervous and this is not a hearing, so imagine a hearing which is a moment in which you are deciding so many things in your life. You feel so stressed, you feel so down that sometimes these kind of hearings turn out to be as if you were being prosecuted as a criminal and not asking for refugee status.

What I'm asking you is to think about all this and think about all of us and think that not all of us are highly educated, not all of us speak very good English to represent ourselves through all these processes. This is all I wanted to say to you.

Ms Kozorys: What you've just heard clearly articulates the opinion that legal assistance for refugees is a necessity created by the very complexity of the Canadian refugee determination system itself. Owing to the complexity of the system, a lack of access to legal assistance for refugees is not in accordance with the principles of fundamental justice. As a community responding to the needs of refugees, we urge you to amend subsection 13(1) of the proposed Legal Aid Services Act to guarantee funding for refugee law cases.

Thank you for the opportunity to appear this morning.

The Chair: Thank you very much for your presentation. That affords us approximately three minutes per caucus, and again we begin with the official opposition.

Ms Castrilli: I was quite moved by your presentation. It's very important for us to have first-hand evidence of the people who are going through the system. You might want to translate for the benefit of our Ukrainian presenter. It must be extremely difficult for you, and I must say I applaud your bravery in coming forward today to talk to us about this. Your comments fall along the same lines as the ones that were made before.

Let me ask you this question. Right now, the status quo of the law is that, at best, there's a choice as to whether there will be legal aid certificates issued for refugees. How often is that discretion exercised, in your view?

Ms Kozorys: As Liz mentioned in her presentation earlier, we have approximately 10 to 12 claimants per year, but you find that every single time that the application for legal aid assistance is made, your desk, like this, is teetering, not knowing where the application is going to go and whether or not the claimant will be successful in receiving legal aid assistance.

At present, we have the irony of two refugee claimants coming forward with nearly identical claims. The country of origin is different, the circumstances may be slightly different, but in one situation the decision was made in favour and in the other was not. How do you explain that to two people who have suffered and continue to suffer the same consequences?

Mrs McLeod: Mary, Liz noted in her brief the Ontario Legal Aid Review report in 1997 that showed the decreasing trend in terms of the numbers and the costs of legal aid representation for refugees. My assumption was that that's because there has been an overall decrease in legal aid certificates that are available --

Ms Kozorys: Exactly.

Mrs McLeod: -- and not because there was a decreased need. Have you found a similar trend in terms of the screening process that determines whether or not --

Ms Kozorys: The screening process itself is at best rather adversarial.

Mrs McLeod: So with a decreased number of legal aid certificates and therefore decreased numbers of refugees getting legal aid support, you're finding that the screening process says no more frequently than it used to?

Ms Kozorys: Yes. In a number of cases that we've seen, for example, in the past year, that situation has been so.

Mrs McLeod: So it's really a cost-driven screening as opposed to a merit --

Ms Kozorys: It is, to a merit, exactly, and the fact that essentially the person hasn't come before the IRB yet. We haven't reached that plateau, yet already we're having to essentially argue on the same merits.

Mr Kormos: We don't have a whole lot of time. I should tell you that the concern over the omission of funding, short of the two-year guarantee of stable funding, and the fact that it's spoken of there in subsection 65(6), I think it is, yet not referred to in section 13, speaks loudly and clearly that refugee law is not going to be part of the scope of legal aid services.

It's interesting because on the day this was introduced for second reading, a Tory backbencher, Mr Tascona, shared leadoff with Mr Martiniuk, the PA to the Attorney General. He said the reason for abandoning refugee immigration law is because of the federal government's downloading. For these guys to complain about downloading is quite ironic, quite frankly.

But I put to you, because the argument was made earlier, the response to the argument, "The feds have responsibility for the Immigration Act, therefore they should be funding legal costs for refugee claimants." The feds also, as has been noted, have responsibility for the Narcotic Control Act, for the Criminal Code of Canada, for the Divorce Act, for all the Federal Court appointments, for the Young Offenders Act, under which the legal aid plan provides counsel because of the requirements of the YOA. The YOA, as I understand it -- people here who are lawyers might have a better handle on it than I do -- is what put the province in the position of being compelled to provide legal aid assistance to young offenders, yet the same argument isn't being used there.

I'm concerned that this government is exploiting some rather right-wing and sometimes racist reaction to new Canadians and to many of those new Canadians who are seeking refugee status. I don't know if you share that view or not.

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Ms Kozorys: I'm certainly not here as a politician; I'm certainly not here to be caught in the crossfire of a number of interested parties. We're really here together to articulate the fact that decisions have to be based on need. I know there are many cost-sharing scenarios that have been reached between the federal and provincial governments on other matters, and we hope that could be done here.

Mr Kormos: I just put to you -- because we expect to hear from legal aid clinics and people in your position over the course of the next four days in Toronto, in Ottawa and back in Toronto again -- there's a whole lot of pussy-footing around by some of these organizations who don't want to get involved in the politics of it. I'm telling you, my friend, that it's very political. This government, I'm convinced, is headed towards defunding of legal aid because they've only guaranteed stable funding for the whole system for three years. They won't legislate anything else.

I appreciate what you're saying, but I'm telling you that advocates for refugees, advocates for the poor, advocates for women, advocates for those who are forced to appear in front of courts had better start becoming very political about what's happening, or else they're abandoning, in my view only, their role as advocates.

Mr Martiniuk: Thank you very much for your presentation. We always get an excellent welcome in Thunder Bay.

I have to point out to you that the government too is concerned with refugees and immigration in regard to legal aid. That's why we guaranteed a two-year continuation. In the present act there is absolutely no mandatory legal aid for immigration or refugees, and that does not change in the new act. As a matter of fact, I think we've improved it, because at least we've given a two-year guarantee. Legal aid certificates in this province take up 7% of the applications of legal aid in Ontario, so I happen to think that two years is an improvement.

When I say the guarantee is for two years, after that we have an independent board for the first time, as you know, Legal Aid Ontario, which is made up of a majority of non-lawyers, and they will have the jurisdiction and the duty to measure the priorities of the legal aid plan. I can see no reason why they would not continue the legal aid plan in regard to refugee status. There's certainly nothing that precludes them in the legislation.

The Ontario government is always concerned with funding, though, and we're talking about fair funding between our province and the feds. The federal government has chosen to reduce the funding of the legal aid plan in regard to refugee status from $14.4 million in 1991 to $3.8 million in 1997, a substantial decrease of funding, and we still have issued 7% of the applications for refugee and immigration matters.

I think it's an important field. When I practised law I did not happen to practise this; however, I have dealt with many lawyers who have indicated some of the stories from their clients in the country they left and their hardships and dangers. I personally appreciate what you're saying here and I have to agree with you that the matter of immigration and refugee status is an important matter. I hope it will continue to be represented by adequate legal counsel, as it has been in the past.

Thank you very much to all of you for your presentation here today.

The Chair: Thank you very much for coming forward today. We very much appreciate your taking time to bring your views forward.

Ms Kozorys: Thank you for the opportunity.

DISTRICT OF KENORA LAW ASSOCIATION

The Chair: We call upon our next presenter, from the District of Kenora Law Association. If you could come forward and identify yourself for Hansard, we would appreciate it. Thank you for coming. You may begin.

Mr David Gibson: Thank you, ladies and gentlemen. My name is David Gibson. I have been asked by the District of Kenora Law Association to make a presentation here today. I am primarily a criminal defence lawyer and I represent people from as far south as Thunder Bay to as far north as Fort Severn, which is on the shores of Hudson Bay, and everywhere in between. To give you some idea where Kenora is, I drove six hours yesterday to be here; I'll drive three hours to Fort Frances to be there tomorrow. It's a rather unique kind of practice.

I have one point that I want to make today, and that speaks to the issue of maintaining a role in legal aid for the private bar. It's important to understand that as a defence counsel practising in the area of criminal law, in order to be effective and successful you have to do three things: You have to foster and retain professional respect from the crown attorney's office; you have to establish credibility with the bar; and you have to maintain the confidence of your clients. It is important to realize that it's the clients who choose the lawyer, not the other way around. In my area, after April 1996 there were very few lawyers who would accept legal aid certificates. Eventually it was necessary to appoint a full-time duty counsel to assist people, particularly at the judicial interim release stage.

That has worked pretty well in Kenora, but when it comes to representing people in trial matters or even reasonably complicated guilty pleas, it is a bit naive to expect that anybody who is working 8:30 to 4:30 is going to bring the level of commitment necessary to adequately represent people. That's not a knock on the people who attempt to do that, but the fact of the matter is that when you're a private practising lawyer you understand in a very immediate and direct way that if you don't put forward all available defences for your client, if you don't put forward all available mitigating circumstances on their behalf, you don't know where your next case is coming from. It keeps you honest. My concern would be that if we move towards a more encompassing clinic model, you're going to see a certain comfort level that is perhaps not healthy among the criminal defence bar.

I should disclose my bias. Perhaps 35% to 40% of my practice is legal aid. I have an associate who handles mostly legal aid cases. I don't think the point I've just made necessarily impacts on my situation all that greatly. Because of the uniqueness of the area I practice in, it wouldn't be very feasible to have a clinic model deliver the kind of services that the bar in my area does. But it's important, I think, for those of you who are considering how legal aid funds will be administered in the future to recognize that an independent and private defence bar has an important role to play in the delivery of services and that ultimately the purpose of legal aid is to assist the public to obtain effective legal representation. The best way to ensure that is to allow the public to make their own decisions about who is going to represent them.

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There are many issues I can speak to. I could spend a very long time talking about how difficult it is to practise and what I foresee being the future of a legal aid practice in my area, but frankly I wouldn't know where to begin. I'll make one point, because I think it's something that is bubbling underneath the surface in my jurisdiction. Just so you don't wonder how many courts there can be in Kenora, I'm in court somewhere in my jurisdiction four days of every week. I go to northern First Nations communities on a rotating basis, and there are many social problems that are surfacing now in a lot of those First Nations communities. One of the extreme difficulties of practising in legal aid in those communities is that after the April 1996 changes, you receive a limited number of hours to assist any particular accused person. Your hours are limited by the certificate you receive.

What's happening increasingly, and I regret to say is going to happen more and more, is that, particularly for individuals who are charged with sexual assault in First Nations communities, there are a lot of antiquated allegations coming forward now, legitimate allegations, involving individuals who may be facing 11, 12, 13 or 15 charges that stretch over a period of 20 or 25 years. To represent an individual like that, you're granted one certificate. You have 11 hours to represent that person, and every one of those allegations is separate. It just can't be done.

In my practice, since April 1996 I've had one request for a discretionary increase granted. The people who are doing the work are trying to do the best they can within the limits they've been given. It's difficult. I can tell you, as somebody who is on the front lines and who works in a small jurisdiction where the bench, the crown attorney's office and the defence bar deal with one another on a regular basis, so there are very few secrets between colleagues, nobody likes to be involved in a process where you feel that an innocent person may be being convicted. That includes the bench and the crown attorney. Crown attorneys don't like to convict people who haven't done anything. They don't like to unduly punish someone who did something that was more mitigated than what they're accused of and they count on defence counsel bringing forward information that's not given to them by police or investigative authorities. When you are limited to four hours to gain someone's trust, find out about their background and put forward effective submissions in court, you can't be confident, nobody in the system can be confident, that the individual who is appearing in court is getting a fair shake.

On a very personal level, it's difficult to deal with. It's one thing to deal with the Guy Paul Morins who are subsequently exonerated through some objective testing; it's another thing to deal with an individual where all you do is suspect that this person may be getting shafted because there's no objective way to tell. It's a tough way to live when you're asking yourself all the time whether you did everything you could, knowing that everything you could do was limited by the time you were given.

I would prefer to answer questions for the rest of my time.

The Chair: Thank you very much for your presentation. That allows us about three and a half minutes per caucus. We begin with the third party.

Mr Kormos: We talked with the last group about subsections 65(5) and (6), which provide for guaranteed stable funding for refugee law for two years and guaranteed funding for legal clinic law for three years. The Attorney General has promised that the overall funding of the legal aid system will be maintained for three years in a stable manner, yet that isn't included in the legislation. Notwithstanding that he has been urged to include it in the legislation, there's no suggestion that it's going to appear in the legislation. I have known the Attorney General since before he was the Attorney General; I've know him since before he was an MPP. I'm loath to take his mere say-so that there is even going to be three years of guaranteed funding, because if he's not prepared to put it in the legislation, that makes me worried about his mere say-so.

I suppose I'm asking you, as a member of the Legislature, should I support Bill 68, should I vote for it, when Bill 68 may well be the death knell for legal aid because it doesn't provide for any minimum standards for either certificate programs or credit programs and gives the government sole discretion as to funding?

Mr Gibson: I think I understand your conundrum. My position on that is this: It may be that in the short term, funding to legal aid is cut so drastically that it's not effective. In my view, that will be a short-term thing, because frankly we will have social chaos. In my jurisdiction it's very short-sighted in many ways to cut legal aid, because people who are handling especially the more minor legal aid cases are in fact doing a lot of social work. They're dealing with people who are poor, who are dysfunctional, and the lawyers are the ones who are putting plans together for these people, trying to get them on their feet so that when they come to court the judges have -- it's a very blunt system. There are very few options for a judge: "Do we send someone to jail? Do we put him on probation? How do we supervise this person?" The judges count on the defence counsel to try to put these people together in some fashion and bring them before the court and give everyone, the public included, some assurance that whatever they've just done isn't going to happen again.

I handled a case in Kenora last Monday that dealt with a man who was seen rummaging through garbage cans in a back alley in downtown Kenora who was approached by three 12-year-old girls who started to tease him. He pulled a penknife out and waved it in their direction and ended up charged with weapons dangerous, threatening and assault with a weapon -- and it was that, but that's not the issue we're dealing with in court. Nobody wants to see that happen again, so how do we deal with this guy's social problems? If you have four hours to do that, all you're going to do is come forward and say: "He's not such a bad guy. Put him on probation." You don't want to put him in jail. All you're going to do is warehouse him for a short period of time and use public funds.

You have to use public funds somehow. Where do you do it? Do you try to surgically use the funds to prevent further criminal offences, or do you deal with it after the fact and spend more money? It seems to me that eventually people are going to get the idea that spending money at the front end to help these people, rather than warehousing them afterwards, is a more cost-effective way to do it. It may be that in the short term we're going to have to learn a difficult lesson and try it without legal aid. It will be a mess, and people will go back to it.

The Chair: We now move to the government members.

Mr Bob Wood: Having spent the last 26 years in a private practice of law, thereby learning the true meaning of "unpopularity," I strongly endorse what you've said.

Ms Castrilli: But then you became a politician; that's worse.

Mr Bob Wood: Then I learned real unpopularity. Having done that, however, I think there's no doubt that the points you made about that are correct and certainly receive my personal strong endorsation.

I'd like, however, to ask you about the issue of how the legal aid plan is run. You hear the suggestion that more case management by the plan might be helpful. In other words, when a case comes forward, they would have greater discretion as to the amount of resources to put into the case. In other words, if it were a weak case that really called for a guilty plea, there would be less resources; if it was a different kind of case, there would be more resources. Do you think that has merit, or do you think that's a bad idea?

Mr Gibson: I think it's hard to implement. The problem is that even cases that are simple guilty pleas, as I say, sometimes involve a complicated social situation behind them that needs some time. Fundamentally it's a good idea. Administering it might become more cumbersome and itself suck up more resources that could be used more effectively. The more surgical way to deal with exactly that problem is to fully implement the Martin report and get the crown attorneys to screen some of these charges before they get laid, because there's a lot of chickenshit charges that get laid that don't get screened out of the system until after a charge has been laid, a legal aid application has been made, some committee has to review it and either approve the application or disapprove it. It's gumming up the system.

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Mr Bob Wood: I'd like to touch on another item that does not directly relate to this bill but in a very big way indirectly relates to it. By the way, I think the idea of early intervention is good and I think it has to happen before we get into the court process. But my question relates to another aspect of getting the community involved and that's the idea of citizens' courts, where a lot of minor offences would go out of the judicial system to the citizens' courts, as in the Manitoba system and a system that is practised in a number of aboriginal communities here. Do you think that's a good idea?

Mr Gibson: I think that's a great idea. The only problem is getting people motivated enough to do it. Very recently Rupert Ross, who's a crown attorney in my area and someone very knowledgeable in this area, and one of the provincial judges and myself sat down in a northern community and encouraged them to move in the direction of a tribal council, to settle some of their own difficulties without bringing the court system in.

We had to say, fully and frankly, that they shouldn't feel guilty if they don't feel they have the resources to make this work, because we don't have it. In the communities that I work in, we have too many citizens who like the sort of alienated way we work now, which is, the police charge somebody. If you're a victim or a complainant, you drop out of the process, but you retain the right to, afterwards, moan about what happened. But most don't want to be bothered. They don't want to sit down with a perpetrator and find out, "Why did you do this? Do you understand how this made me feel?" and get involved in a process that really has an incredibly reformatory effect on a lot of offenders.

It's a matter of motivating people to see the way the system works in a different way. The adversarial system, the way it's working right now, doesn't always serve people that well but it's the communities themselves that have to decide, "We're willing to invest the energy and the time," and a lot of it would be pro bono, presumably.

The Chair: We now move to the official opposition.

Ms Castrilli: Let me first comment on your eloquence. It's really quite refreshing and I appreciate it very much. The distance that you've come, as well, to make the point is something that we certainly note.

I'd like to ask you a couple of questions, if I may. I know this isn't your brief that was presented to us but some points that are made are very important.

The first point that I see here is about the concern that the Attorney General is controlling the appointment process to this new independent body that is supposed to look after legal aid. It's a concern that we've raised in the Legislature as well. The proposal here is that, out of the board of 11, there would be three that would be appointed by the law society without those decisions being able to be screened by the Attorney General and that everyone else would be appointed through a process set up in the Legislature and it would be a legislative committee that would do that to allow a more diverse reflection of views on this board rather than having appointees who might reflect one ideological bent. I wondered if you might comment on that.

Mr Gibson: I have to say that, from my perspective, in my jurisdiction everybody knows everybody, so people are scrutinized. My concern is not so much that you're going to have loose cannons appointed who are going to be doing obvious, ideologically driven, mistaken things that are going to spin the system out of whack. I think the concern more is that people become lazy unless they have an interest in the system, a direct stake in the system. They allow themselves to go along, to get along. The system that we have right now requires people to be checking up on one another.

In my case it's the client who checks up on me. If I want to go along with what the crown attorney wants or the direction the judge is pushing me, it would be easy for me to do that. I would prefer, in some ways, to work 8:30 to 4:30, go into court, and do my thing. If the clients are a little peeved at me when they finish, I know there's going to be somebody sitting across the desk from me the next morning. My job, in part, is to second-guess police officers, and everybody in the system is balanced out that way.

It has to be the same way in the appointment process. There need to be people who are watching what the other people are doing and have a stake in remaining vigilant and just not getting comfortable and saying: "All right, we really don't need to do that. I don't want to fight with you because we're all friends here and we want to get along." That's the biggest danger. It's not that people are going to be stupidly ideological, but they're going to be lazy and just go along to get along. So we need to have people who have a stake.

The Chair: Thank you very much. We very much appreciate your coming forward today with your presentation.

ONTARIO NATIVE WOMEN'S ASSOCIATION

The Chair: We call our last presenter of the morning midday. Would the representatives of the Ontario Native Women's Association please come forward. If you could identify yourselves for Hansard we would appreciate it. You may begin.

Ms Marlene Pierre: Thank you, Mr Chairman and all of the honourable representatives of the government who are here to hear us today. My name is Marlene Pierre. I am the president of the Ontario Native Women's Association. With me is Audrey Gilbeau, who is the executive director of the association.

I am pleased to see Lyn McLeod here today, who is a representative of our community and who we're pleased came to the official opening of our business. I'm happy to see you again. I didn't realize I'd see you so soon.

I want to explain that the association is representative of aboriginal women in Ontario. We are an advocacy organization. We speak to any and all issues that affect the economic, social and justice lives of our people and their families. We have been in existence since 1971 and have had a history of being unwelcome as well, because we have a tendency to tell the truth and we have a tendency to bring forth the real issues that exist in our communities in every way that affects our families. We have enjoyed the participation at many tables, especially during the last government, who made sure that the voice of our people was being heard.

I welcome this opportunity today because I feel that this government that is here today does not want to listen to us and puts the aboriginal agenda on the very back burner. I know this to be true because I have been engaged in many discussions and quite often when we bring our word to the table it is not listened to. I hope with our being here today that we will be listened to.

We have a great interest in justice issues. Our organization was fundamentally responsible for the inclusion of the equality clause in the Canadian Constitution. Our member Jeannette Corbière Laval fought for the rights of aboriginal women in the removal of the section 12(1)(b) case, where when we married a non-Indian we were, for some reason, no longer considered Indian, but non-native women could be considered Indian. Those are the kinds of rights that we fight for.

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Today I want to address at least three principles. There are many, many questions that we do not have answers for when we're making our presentation today. The three principles are the principle of inclusion, the principle of need and the principle of fairness. There are four other issues that we want to make short statements on, but in the interest of the discussion around reasonable representation of society on the to-be-formed corporation, I have a very serious concern. We addressed this issue when we were talking about the office of the police complaints division, which was immediately removed when this government came in. It was like the police investigating police actions that were unfavourable, especially to our people.

We had had that legislation altered to our benefit and we're hoping this legal aid body that is about to be approved by Parliament is going to take into account inclusion of our people, that at the corporate management level and in the region -- I don't know what structures are being discussed and how the services are going to be delivered in the far northern communities, especially the isolated communities, but I want to recommend very strongly that aboriginal women, aboriginal representation, are included and built into the process of selection at the management level and at what I'll call the regional level. It's very important that the users of this service have an opportunity to lead how this service is going to be delivered to our people. I hope that the Attorney General, Charles Harnick, is amenable to that kind of recommendation.

The principle of need: Everyone in this room and in this country knows that the living conditions, including the justice aspect of our lives, are comparable to Third World countries. This statement was established and will be supported continually by the World Health Organization. Ontario's no different. In our northern communities there is poverty; unemployment, especially for women -- and 50% of our families are sole-parent-led families, quite often on some form of assistance. I'm just going to leave it there, because I can quote you statistics and case studies all day about our women and their children in our communities who do not enjoy the kind of life that most Ontarians do. So the financial need is there, well established by our women and by our communities in general.

I also want to talk about the issue of fairness. I want to use the example around alternative justice that was raised earlier by the speaker before me. Good idea, something that we have asked for ourselves in our right to determination, but in actual practice that system does not work at all times. I use the example of the Sandy Lake case, where the chief was the perpetrator and found guilty. His sentence, in our view, was a holiday in the woods, complete with food brought to him, a special place built for him -- all those amenities that we can't even get outside the legal system -- and he was treated so well it was like a holiday. Being exiled in that manner is not, for us, proper implementation of justice. No accommodation for the victim in this case. Who paid for that chief who was charged? It certainly wasn't himself. There are all kinds of examples like that that we could talk about all day.

One of the main criticisms that we've had of the legal aid system in the past is that, especially in the northern fly-in communities, and I even see it here in Thunder Bay, lawyers continually plea bargain our people into admission of guilt when there is no guilt. There is very little faith in the system that is supposed to protect our people, any person, and that has to stop. They're using the legal aid system to do that, and they know that. The judges know that, the crown attorneys know that, but it continues to happen all the time. There is no need to plea bargain your way out of a charge. We try and tell our people not to do that, but they want to get rid of the case and so forth and they just let the system take care of it.

Everyone in this room and outside of this room has heard about the initiatives that are being taken by the federal government in the abuse issues of our people in the residential school system. It is despicable that lawyers all across this country and in our province are going out and headhunting for the victims so that they can represent them in court, so that they can, at the end of the day, be the ones who have won. I don't know how that is remedied, but I think that is one of the most terrible things that is happening in this whole issue of the residential school system situation. How dare people try to make money off our people's -- the deadliest sin that was made in the history of this country? I don't know where the mores are, but that is an activity that is right now -- and even in one case, hiring native people to go out and be their forerunner to find our people. Are they getting legal aid in Ontario for these cases or are they having to hire these unscrupulous lawyers to go and represent them and then take their money from them if they win? And in most cases they're winning.

I don't know if this affects this hearing but it's something I think the law society should hear. I think any aspect of the justice system in Ontario should hear what is really happening out there.

Another very critical issue: We have just had in this very hotel an assembly of over a hundred women delegates from all across the province to talk about the various issues, very difficult issues that face us as women. One of them was the lack of matrimonial, property and child custody protection for those women. Right now, I'm not stretching the imagination in any way whatsoever when I say that because the federal government does not have any bylaws or means through its own legislation under the Indian Act to protect women, quite often when there is a separation in the family on the reserves, our women in many cases are forced to flee the community, mostly because of violence towards them. Quite often the children remain and there are no rights established for these women to have any access to their children. There are no laws protecting the women, when women outside of those reserve communities can have access to their matrimonial property and goods.

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Our women on the reserve don't have the benefit of law to protect them. When they flee, they flee to urban communities or the closest place where they can seek a safe haven. They don't know how to proceed when they get off the reserve, because now they can't access legal aid through your process. It has no application on federal reserves. In my view, there has to be some means by which this government can ensure protection for women who live on-reserve and all these kinds of matters.

Also, in the protection of treaty rights, hunting rights, I'm very interested to know how civil law is going to protect treaty rights and all these other matters that I have raised. In hunting rights, for instance, hunting out of a treaty area, can our people access legal aid? I know of many cases where they have not been able to access legal aid because of the nature of the charge. I'm very interested to know whether this body is going to be able to address these critical needs of our people in these specific areas.

I'm only making these statements. I want to entertain questions, leave more time for that, but I have brought to your attention several issues and I'm not sure how you're going to be able accommodate them, even if you wanted to, because I know they're very complex issues that involve the federal government. Most of the time when we've been talking to any provincial body such as this, it quite often gets sloughed off because of this excuse, "We cannot deal with this because it's a federal matter." Well, I think you can. Our people live in this province and there has to be a concerted effort by this government to deal with those problems.

I have asked, as a matter of fact, Charles Harnick, in a letter I sent approximately three weeks ago, to help our organization, to lend us some technical assistance, because they're not giving us any money any more to do these kinds of things. But we wanted the minister to consider someone from his ministry who is in this capacity of family law to help us draft legislation as a first opportunity that we would have to have an influence on the Indian Act. We're going to be meeting with the Minister of Indian Affairs in a few weeks in Sault Ste Marie. We want to be able to say, "Here, Ms Stewart, is a document we've prepared that has been properly researched and properly worded so that you can put these words into your Indian Act." I want to be able to say: "We got that assistance from our province of Ontario because we don't get any help from you, Madam Minister. We don't get any help from any other body but ourselves."

None of us are lawyers, and I don't like to beg on behalf of our people. I believe that our needs are honourable. I would hope that through this committee we would be able to influence how the whole issue of matrimonial property and child custody will be dealt with in the province of Ontario. I'll now ask Audrey, if you have anything you'd like to add.

Ms Audrey Gilbeau: Good afternoon. I'd just like to make two points with respect to this forum. From what I've read over regarding the composition of the corporation, one of the questions I pose is that it seems to be representative of the legal community. However, when we talk about the reasonable person, that reasonable person is not always a lawyer. I'm sorry. What representation from society in terms of socio-economics, poverty, justice, all of those realms that come into the scope of justice? It's not simply a matter of law, it's also a matter of environment, so I'd like to know how that aspect will be incorporated within this process.

Also, when we talk about administration and efficiency of operations and resources, and cost savings as well, when we look to the other side of that, justice is not always represented when we throw those equations into it. Therefore, again, how will this be considered in this whole process?

Marlene spoke about technical assistance. One of the common problems we're having right now is that at one time it was easy to access, under legal aid, legal assistance for family matters, separation and divorce, and child custody. That's becoming more difficult.

To compound that problem, accessing the Human Rights Commission, for example, you call and you get a computer on the other line that tells you to press 1 and press 6, and you go through it and you never, ever reach a person. To further compound that, their office has been downsized. They're open, I think, three days a week and you're not always able to reach somebody.

We find that our membership contacts us now -- at one time the issues were very specific, but at present on any given day you're going to get issues regarding housing, exploitation in terms of housing. We have other situations that fall out of the common realm of child custody. We have extended family situations now where child welfare organizations are involved, and there are inequities within that system.

The government has spoken many times about recognizing self-government and self-determination. However, no mechanism has really been set in motion to recognize the difficulties and the challenges that are directly involved in that process, specifically speaking about child welfare and apprehension, extended families. It's not necessarily a positive relationship, and we're finding that more often than not the child welfare agencies are having to, and rightly so, because they are governed by the legislation -- but they are not making every opportunity available for the extended families to participate in that forum.

I'm sure if we sat here and talked further that other issues would come into play. Having read the document, one of the points of interest for me is that this process is considering alternative methods for looking at justice and looking at administration of the legal aid plan. What other mediums are you looking at other than the circles of mediation? Will advocacy be considered in this process?

We know that we have Kinna-Aweya Legal Clinic in Thunder Bay but even they have changed in the past few years in how accessible they are. We would just like to know if you're looking at a more --

The Chair: I'm afraid I'm going to have to ask you to sum up, because you're well past your time. If you could summarize, we'd appreciate it, please.

Ms Gilbeau: That's all I have to say. Thank you.

The Chair: Thank you very much for coming forward today. Unfortunately, that doesn't allow us any time for questions and answers, but we very much appreciate your coming forward with your presentation today.

With that, this committee sits recessed until 2 o'clock.

The committee recessed from 1241 to 1402.

The Chair: I call the committee to order. Just prior to turning the floor over to Mr Kormos, I want to let the committee know that the cut-off time for amendments for clause-by-clause will be 3 o'clock this Friday.

Mr Kormos: On a point of order, Mr Chair: I'm wondering what I must do to force the Conservative Party to engage in a high-profile, expensive ad campaign in my riding, criticizing me with television coverage, radio coverage and perhaps large-format news --

Mrs McLeod: Envy will get you nowhere, Mr Kormos.

Mr Kormos: What do I have to do?

The Chair: That is not a point of order. However, I'm sure a well-detailed plan would assist.

Mr Kormos: Is there anything I can do to offend them to prompt them to do that for me?

Mr David Ramsay (Timiskaming): Your mere presence may accomplish that.

The Chair: Thank you, Mr Kormos.

THUNDER BAY LAW ASSOCIATION

The Chair: Our first presenters of the afternoon are representatives of the Thunder Bay Law Association. Come forward and identify yourselves for Hansard, please.

Mr Kevin Cleghorn: Good afternoon, Mr Chair. My name is Kevin Cleghorn. I'm a practitioner with the law firm of Buset and Partners in Thunder Bay. I was called to the Ontario bar in 1984. At the present time I'm the secretary of the Thunder Bay Law Association and chair of the family law bench bar committee.

Mr Mike Montemuro: I'm Mike Montemuro. I was called to the bar in 1988. I'm a criminal lawyer. Specifically I do duty counsel work, exclusively since April 1996 when legal aid passed away. I'm here as a member of the Thunder Bay Law Association and I'm the criminal liaison to that organization.

Mr Cleghorn: We were asked to attend before this committee on Friday afternoon. That has allowed a rather perfunctory review of the legislation. In terms of the nuts and bolts of the legislation, all I can indicate is that we consider anything that purports to amend or alter the existing system, remove the legal aid plan from the law society, to be a positive step forward.

At the time I was called to the bar in 1984, the legal aid plan in Ontario was something to be extremely proud of. It provided an excellent range of services to lower-income individuals in the province. Over the 14 years of my practice, it is regrettable and unfortunate that the legal aid plan has essentially gone by the by. It is now at the point where it is frustrating lawyers to a significant extent. We are unable to provide anywhere near the quality of legal services that we were once able to provide to the people in the province. As well, it has become an extremely difficult thing to watch as unrepresented litigants come into both the Provincial Division and the General Division courts, attempting to find their way. The impact of that has been significant in terms of the administration of justice generally, because unrepresented litigants, through no fault of their own, tend to slow the process considerably. As a result, it has affected everyone in one way or another.

Essentially, the legal aid plan is one cornerstone of the administration of justice in our province, and to a large extent it will affect other aspects of it in the event that the plan is a viable, effective plan that indeed provides high-quality legal services to lower-income individuals or not.

I would comment on only one particular aspect of the legislation, and that is subsection 12(1), where it indicates that the new corporation "shall establish and administer a cost-effective and efficient system for providing high-quality legal aid services within the financial resources available to the corporation." To a large extent, that will determine the success or failure of this new corporation, exactly the extent to which appropriate and necessary financial resources are available to the corporation.

One of the very positive aspects of this new legislation, in my view, is the expansion of the clinic system. We in Thunder Bay are extremely grateful that we will have the opportunity to have a family law clinic operating in 1999 that will hopefully serve the citizens of Thunder Bay and the surrounding areas much more effectively than the current system.

The concern will be, of course, the degree to which the resources are spread between the clinic system and the certificate system. For the practitioners who continue to receive certificates, the concern would be that in the event that too much in the way of resources go to the clinic system it will result in further evisceration of the certificate operation, which might result in fewer and fewer practising lawyers engaging in accepting certificates from time to time.

I will let my colleague comment on the new act from the standpoint of the criminal practitioners, and stand open for any questions you might have after he has concluded his presentation.

Mr Montemuro: The budget for legal aid is in the neighbourhood of $273 million. It's the size of a medium-sized school board in the province of Ontario. This is for all the poor and disadvantaged groups that make up the majority of people passing through the justice system. Of course, that's divided between immigration, family and criminal. Zero-tolerance policies, while serving a valid social function, also exacerbate the problem of inadequate funding.

Imagine yourself wrongfully accused of a crime. You find the arsenal of the state arrayed against you -- the police, the crown, forensic experts, victims' rights coordinators, a whole array of state resources -- and you have your lawyer. You might have to beggar yourself to be vindicated or, if you are poor, you have to rely on legal aid.

In my mind, it's always been an anomaly that legal aid paid a lawyer two thirds of the fee payable for a guilty plea and one third more if the matter went to trial. It should be obvious that a trial requires more than one third more work than a guilty plea. In fact, it may take three to 10 times more work. The simple fact is that a lawyer cannot afford to take matters to trial on legal aid. It's not greed. They just cannot begin to do the work for the fees paid.

It is my belief that this fee structure has a direct impact on the number of people who plead guilty. The criminal pretrial, an early form of alternative dispute resolution, has also had the effect of encouraging more guilty pleas. Coupled with these factors is the crown's desire to get a conviction by any means short of trial. They haven't the resources to take all cases to trial either, and yet they're involved in a numbers game where they have to show so many convictions. These three factors have led to an expectation that a certain high percentage of people charged will plead guilty. This expectation is almost treated as a law of nature, when in fact it is attributable to man-made factors including those just mentioned.

You cannot build an adequate legal aid system on the expectation that so many people will plead guilty, and yet that is just what this legislation proposes. For example, the proposal that would have lawyers bid for blocks of cases for a set fee is like buying a pig in a poke. A lawyer cannot know, there being no natural law, how many of those cases will be guilty pleas and how many for trial. This proposal will put even greater pressure on lawyers to find that middle ground and plead their clients guilty.

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The proposed corporation is supposed to be at arm's length from government. However, in its reporting function -- to report to and advise the Attorney General on features of the justice system that affect the demand for legal aid and in setting priorities for what sort of cases warrant legal aid -- there is a fear that the relationship between defence and prosecution may become too cozy. In fact, the legislation refers to partners in the justice system. It's not a term defined in the legislation but it's there.

Of course, the problem is that in no way can the defence and the prosecution be partners. They are in fact adversaries in the truest sense of the word. It is this adversarial nature of the criminal justice system, provided there is a level playing field -- that is, adequate defence funding -- that is the best way to protect the rights of persons who come into contact with the system. The bottom line is more money. The government wants a more efficient system. How do you measure efficiency in an adversarial system? More guilty pleas? Further trials? I don't think so.

Again, the problem involves not realizing the importance and uniqueness of the adversarial system. Despite attempts to find the middle ground, that is, in the pretrial process, the system remains a zero-sum game. One side wins and one side loses. A justice system that is worthy of its name must not only convict the guilty; it must also ensure that it does not convict the innocent. Remember the old saying that 100 guilty men should go free rather than one innocent man be hanged. Let us not let number crunching weaken the presumption of innocence. For it is the cornerstone of our free and democratic society.

We criminal lawyers feel like the proverbial voice in the wilderness, and we wonder if anybody is listening. Those are all the remarks I have at the moment.

The Chair: Thank you very much for your presentation. That allows us approximately three minutes per caucus, and we begin with the government members.

Mr Martiniuk: We heard this morning from one of the presenters that, especially in isolated areas, there was a tendency to plea bargain or plead individuals guilty to get it over with. You've said something similar. I don't want to put words in your mouth, but you seem to indicate that because of the fee structure, a lawyer, who has a duty to defend his client, would tend to plead the person guilty for mercenary reasons. Is that stating fairly what you said?

Mr Montemuro: First of all, it's simply a fact I'm referring to. I don't know how it works, but it's there. The fact is that two thirds of the fee is paid for a guilty plea and there is a huge proportion of guilty pleas. Along with the pretrial, which has allowed them to find the middle ground, and the crown's own -- as I mentioned, they've got their numbers game. They need convictions. They'll almost give the store away in some cases in sentencing in order to get a conviction.

It's not the mercenary aspect of the lawyer; it's the fact that he just doesn't have the resources to go to trial. A trial doesn't take one third more work. Once he's on the record and committed to a trial, he's got to go through with it. First of all, how is he going to be paid for his work? What about the other resources he needs in terms of forensic experts to balance the crown's access to resources?

Most of the lawyers I know, except for a few dump truckers, which I'm sure you've all heard about, are honest people who are trying to do the best for their clients. The fact is that they just cannot do it. I don't know exactly what the mechanism is. I just throw that fact out for you. If you think there's a natural law that that many people plead guilty, I think you have to look at all the factors that may go into that. I'm not saying that any lawyer sells his clients down the river, but there is the fact that you're paying them two thirds of what they're going to be paid if they plead them guilty and one third more to do a trial which is going to take 10 times more work. There's just that pressure.

Mr Martiniuk: Thank you for clarifying that. I practised law for 30 years, and I would hate to think I practised in a profession that pleaded people guilty for mercenary reasons.

Mr Montemuro: Absolutely not.

Mr Martiniuk: Thank you very much for clarifying that. I have no further questions.

Ms Castrilli: I have one question and my colleague will ask one as well, if there's time.

I'd like to focus on another issue, but I want to pick up on what Mr Martiniuk just asked you. The fact is, and we've been dealing with this in the Legislature for some time, that there is a tendency to plea bargain. It has to do with a lot of factors. As you are probably well aware, a crown attorney report came out not too long ago that said they have no time for the many cases that clog up the courts for all kinds of reasons, including that there is no representation for plaintiffs and accused in the courts. It's not a question of the dishonesty of the lawyer; it's a question of adequately funding the system.

The question I want to put to you has to do with section 43 of the act, which you may have had a look at. It says something to the effect that it is incumbent on the lawyers to report a client who they believe may have misrepresented the facts with respect to his financial need. I wonder how you feel about that and if that is a difficult position for a lawyer to be in, and if it breaches the confidentiality between a lawyer and a client.

Mr Montemuro: It's not a new problem. I think that problem was there in the old legislation, and it's always been a bit of a bugbear with lawyers about their duty of confidentiality and solicitor-client privilege and their duty under the act to inform if something comes to their attention that the person may be defrauding the system. I really don't have any comments on that and I don't know what I would do if faced with that sort of dilemma.

Mr Cleghorn: This has existed ever since I began practising and taking legal aid certificates in 1984. The only thing about it was that we weren't aware of exactly what the individual had told legal aid in terms of their financial eligibility. So to report a change was one thing, if they won a lottery or something to that effect, but it was quite another if we thought they might have misrepresented themselves. But it's always been our obligation as solicitors. In effect, we had our clients, but the legal aid plan was also our client in the sense, and we had the obligation to make the plan aware of whether somebody was or was not eligible.

Ms Castrilli: If you read the section, it goes a little beyond that. It makes you, in effect, obliged to be a snitch, and I wonder how that squares with your responsibility to protect your client. Has it been a problem for you?

Mr Cleghorn: No. I can honestly say that I have never had to contact the legal aid plan because I was concerned about that particular thing occurring.

The Chair: We now move to the third party.

Mr Kormos: If you take a look at subsections 65(5) and (6), one guarantees, legislatively, stable funding for the clinic program for three years and the second guarantees stable funding for refugee immigration law for two years. Because there's no reference to refugee law, we know that means the government is abandoning any support of refugee law. But the legislation including those two subsections, we're then told by the Attorney General that we must rely only on his promise of stable gross funding for the whole legal aid plan over the course of three years. I've pushed and pressed the Attorney General to put that into the legislation; in other words, if you really mean it, put it in the bill. Why do you think the government won't legislate its commitment to stable funding for the overall plan for a period of three years?

Mr Montemuro: My impression in reading the whole thing is that it's so open-ended that it allows the government to do whatever it feels it wants to do, and I suppose what its number crunchers tell them will be the cheapest thing to do and also probably dovetails with some of its plans with respect to the other initiatives in the justice system, victims' rights and that sort of thing. I think it's a very dangerous situation to be in.

Mr Kormos: The AG and I go back a way, to before he was AG and even before he was an MPP, and I have a hard time just taking his word for it. I'd far sooner see it in the legislation.

You know that public support for advocates of a publicly funded legal aid plan is not part of the mainstream of public thought.

Mr Montemuro: Absolutely.

Mr Cleghorn: It's certainly part of the lawyers' thought.

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Mr Kormos: You also know what the public perspective -- they publish surveys and reports annually of the stature of various professions --

Mr Montemuro: They hate lawyers and criminals.

Mr Kormos: Lawyers, criminals and politicians.

Having said that and acknowledging that as the reality, my fear is that the government is exploiting that anathema, especially the high-profile criminal defences of horrific crimes that have cost considerable amounts of money to defend, almost inevitably unsuccessfully. Nonetheless, you and I understand why it's important to have those defences. What's the point to make with the public? What are you or I or others who are advocates of a publicly funded legal aid plan to say to the public to foster support for our position that admittedly isn't there now?

Mr Montemuro: The presumption of innocence. It's the rock bottom of our justice system, and if you really unpack it and analyze what it involves, I think it involves adequately funding legal aid and it involves again in some of the moves -- and I don't mean to be politically incorrect about victims' rights in the justice system, but some of the holus-bolus approach to it is I think eroding the presumption of innocence. That is a cornerstone, and I think from that you can analyze most of the approaches you would take and find out whether they're going to be adequate, because anything that erodes it is wrong.

The Chair: Thank you very much for your presentation. We very much appreciate it.

PERSONS UNITED FOR SELF-HELP IN NORTHWESTERN ONTARIO

The Chair: Would the representatives of Persons United for Self-Help in Northwestern Ontario come forward and identify yourselves for Hansard.

Mrs Marilyn Warf: My name is Marilyn Warf, regional director of Persons United for Self-Help in Northwestern Ontario Inc, often known as PUSH Northwest, a 100% consumer-driven organization of persons with mobility, hearing, vision, psychiatric, developmental, neurological and non-visible disabilities and seniors who work together to address issues that impact directly on their lives, rights and freedoms. PUSH Northwest and its community-based Disabled Alliance Network groups collectively represent consumers in the geographic area of northwestern Ontario and the Nishnawbe-Aski Nation.

Thank you for the opportunity to address the standing committee on administration of justice regarding Bill 68.

We have no concerns about the framework for the provision of legal aid services in Ontario or the creation of a corporation to establish the operating system for Legal Aid Ontario as proposed in Bill 68. The purpose of this presentation is to influence the policies and priorities that will be developed by the new corporation regarding the delivery of legal aid in Ontario.

Cost of disability: Many persons with disabilities and seniors are low-income individuals who must rely on legal aid as their only access to the justice system. Yet many persons with disabilities have difficulty accessing legal aid or are denied eligibility due to barriers within the system.

Of primary concern is the means testing for eligibility for legal aid assistance. No consideration is given to persons with disabilities and seniors regarding their cost of disability. Neither is there consideration of the value of assets based on accommodation due to disability. For example, many persons with disabilities and seniors pay a high percentage of their income for costs directly associated with their disability that are not covered under any funding program, such as thousands of dollars towards the cost of a mobility device or modified vehicle. There must be consideration for these costs over and above the cost-of-living allowances, because they greatly reduce a person's actual discretionary funds and level of ability to pay for legal services.

When considering assets, a modified vehicle may have a value of $50,000, but the base cost of the vehicle is less than half that value. It is the addition of the lifting device and hand controls that increases the price and is a direct result of accommodation for the disability. The person with a disability also pays higher insurance rates based on vehicle replacement value. The high-priced vehicle is not a luxury; it is a necessity. The same is true for a person's residence. How much value is the actual residence and how much is directly related to the accommodation in the home?

The economic impact of disability in relation to income must be considered when reviewing eligibility criteria for legal aid under the new corporation. By not taking these costs into consideration, many persons with disabilities and seniors will be denied legal aid eligibility when in fact that is the only way that access to justice would be available to them.

Under the same premise, the cost of disability must be considered any time there are persons with disabilities involved in negotiating financial supports for a custodial parent and/or a dependent child. The cost of disability must be factored into the equation on an individual basis. Cost of disability is not currently considered in the grid used to calculate the provision of financial support under family law. This is a critical issue that must be addressed.

Legal clinics: It is important for PUSH Northwest to go on record as fully supporting the continued funding for legal clinics and their mandate as well as their active involvement in law reform and community development. Legal aid clinics are critical for equal access to legal aid services and the justice system. It is imperative that the board of Legal Aid Ontario allow the clinics to assess and set priorities regarding needs at the community level and give them the autonomy to meet those needs. If legal aid is meant to be responsive, provide access to the justice system and meet the needs of low-income and disadvantaged populations, then the board must rely heavily on the input of the clinics for planning and delivery of legal aid in Ontario. Clinics are the ones with hands-on experience at the grassroots level.

The board of the new corporation must include representatives that have extensive knowledge in areas of law practised by legal clinics. Understanding of the legal clinic's mandate and function and its invaluable role must be strongly supported by the corporation to enable low-income and disadvantaged populations to have access to the justice system.

PUSH Northwest is a member of ARCH, a legal resource centre for persons with disabilities. ARCH has continued to be a reliable and responsive source of information and interpretation of legislation and policy changes. Without this resource, we would be less able to keep persons with a disability informed of changes which directly impact their lives, rights and freedoms. ARCH also works to establish precedents for the benefit and protection of all persons with disabilities. To our knowledge, ARCH is the only legal clinic in Canada dedicated to addressing disability issues.

We also work directly with Kinna-Aweya Legal Clinic in Thunder Bay as community resource on disability issues and as a consistently reliable source of advice and support as we work with individuals and address disability issues in northwestern Ontario. Both of these clinics and all legal clinics across the province are invaluable for persons with disabilities and seniors to ensure that they have access to the justice system.

Legal aid certificates: Many professionals and service providers in the legal system do not have practical knowledge regarding disability issues and, acknowledging their lack of knowledge on the issues, are reluctant to take legal aid certificates. This is a disadvantage for consumers who obtain legal aid certificates and then try to find a professional in private practice who has extensive knowledge in areas such as the provision of special education, assistive devices program and income support.

It would be a benefit for persons with a disability to be able to access lawyers, using legal aid certificates, who have the level of expertise regarding disability issues that is available at the legal clinics. Staff at the legal clinics could not possibly handle more work than they already have, but, from a consumer perspective, consideration should be given to expanding the staff complement at the legal clinics so that there is a team of lawyers who can be retained, using legal aid certificates, who could immediately address issues because they have the background knowledge. Discussion with the clinics would determine whether or not this suggestion would be feasible from their perspective.

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Accessing legal aid certificates creates an opportunity to seek legal aid counsel, but does not always mean full access to the justice system. For example, a parent pursuing appropriate special education assistance for a disabled child and following the process through to the tribunal stage often cannot find a knowledgeable lawyer, will end up with costs related to retaining a lawyer over and above the legal aid provisions and will have to assume the cost of paying a per diem and travel for witnesses summoned etc. Often, the end result is the inability to resolve the case due to the lack of funds for the entire process. In this situation, the board of education has the resources to complete the process and the low-income individual does not. Barriers to equitable access are inherent in the system and we are requesting that these be addressed as part of the restructuring.

The process of how legal aid certificates are assigned needs to be closely examined. Currently, 84% of the certificates are used for criminal law. While we agree that all persons should have access to the justice system, the heavily weighted support for criminal law means less equity in other areas such as family law, social assistance law, education law, employment law, landlord and tenant law etc. We are requesting that more consideration be given to cases involving persons who are victims or in vulnerable situations, particularly when children are involved; for example, a person trying to leave an abusive relationship and obtain financial support for children, or a parent fighting for adequate educational supports for a disabled child, or a person wrongfully dismissed from employment due to having a disability. The list is endless. The current political climate in Ontario has exacerbated these situations as more and more people fall through the cracks of the systems that are supposedly put in place to protect and support them. These are cases that must have a priority in the assignment of legal aid certificates.

Poverty and disability law: For those who do not believe there is a need for poverty and disability law, we can give you scenario after scenario to prove the need of those who must rely on legal aid to access the justice system. For those who do not believe legal aid should support individuals who challenge the laws and policies of the government, we ask: Which is worse, abandoning people who are most vulnerable or acknowledging that laws and policies do not meet the needs of all people? Legal aid must be available in all areas where access to justice is required.

Accommodation for persons with disabilities: It is imperative that the provision of accommodation for persons with disabilities under legal aid be maintained to ensure that all persons can access the justice system when using either legal clinic services or legal aid certificates. Often, choice of attorney is limited due to lack of physical accessibility to the law offices. There is also a need for sensitization training for lawyers, paralegals, service providers, mediators and duty counsels to increase their understanding of disability issues and enable them to relate more appropriately to persons with disabilities. There is a high degree of sensitivity and knowledge within the legal clinics which must now be extended through the wider justice system.

One other area that requires enhancement is the supports in the courts for persons with disabilities such as mental health workers and a victim/witness program that includes services for consumers. Although this may be considered outside the proposed restructuring, it is an area that is not meeting the needs of persons trying to access the justice system and must be identified as a gap in the overall delivery of service.

Hopefully, this information will be given full consideration by the corporation. Throughout the restructuring of the legal aid and in the future, there must be a conscious effort to look at systems, policies and procedures to ensure that they include persons with disabilities and seniors who make up 17% and 13% of the population, respectively. If PUSH Northwest can be of assistance with any aspect of this development, we would be pleased to provide the board with any information required.

Thank you for your attention to this presentation.

The Chair: Thank you very much for your presentation. That affords us just over two minutes per caucus and we begin with the official opposition.

Ms Castrilli: Thank you very much for your presentation and for bringing forth a unique point of view. I wonder if you might elaborate on a comment that you made, that the particular client group that you see has very special needs and there have to be some measures put in place to ensure that they get a fair share of certificates if necessary. Do you have any ideas as to what we might do with respect to that?

Mrs Warf: I don't pretend to be an authority on the allocation of legal aid certificates but I know, in working with the population of Ontario across the board, not just people with disabilities, there is a greater need to look at the allocation of legal aid certificates for family law, particularly women leaving abusive situations looking for supports for kids. We've got a huge problem with low-income families and children. Child poverty is a huge issue and until you address the family law that relates directly to those situations, we're not going to start addressing those issues. I think this should be, I don't want to say a priority, but certainly attention should be paid to that particular segment.

In situations where people have been discriminated against, it's not appropriate to ask people to go through human rights. You need legal aid and you need it immediately to be able to get through a situation where you've lost your job because of disability. You know it has happened that way, and the faster you can address that the faster you may be reinstated or compensated. We can't allow people to fall through the cracks because we're not allocating those certificates quickly enough.

Ms Castrilli: Are you advocating some kind of division of certificates? Is that what you're saying? At the moment, 83%, as you point out, goes to criminal --

Mrs Warf: Eighty-four per cent to criminal law and, just for background, I think 90% or something of those are men because when you look at the system the worst thing, perhaps, when they looked at the system originally was saying, "You don't want anybody to spend a night in jail." But if you ask a woman in particular the worst thing that can happen, it's that, "I have to have myself and my children in an abusive situation" or "Somebody takes my kids away."

I think we need to look at what the basis for the application for the certificates is: Are they, in fact, victims? Are they, in fact, vulnerable? Or are they, in fact, the perpetrators? I think that the way they're allocated doesn't have enough thought process in it. We just hand them out as they come through for application, and I think it needs to be really looked at.

Ms Castrilli: Would you agree that part of the problem may be adequate funding?

The Chair: Thank you, Ms Castrilli. We now move to the third party.

Mrs Warf: Adequate funding would certainly --

The Chair: Thank you. Mr Kormos.

Mr Kormos: It's interesting because Mr Montemuro and Mr Cleghorn were here from Thunder Bay Law Association just before you and I was asking Mr Montemuro -- I said: "Legal aid is not a popular thing out there with the general public, the fact that their tax dollars are being spent on legal aid. Let's face it, it's not a popular thing. How do you market it to people? How do we convince people it's a worthwhile investment?" and Mr Montemuro replied, "The presumption of innocence." He's not here any more, but I assume he'd say that means that nobody should have to spend even one day in jail until they've been proven guilty. It really comes down to adequacy of funding and not creating competing classes within the system. Isn't that the follow-up to what Ms Castrilli asked?

Mrs Warf: I think that's true, but I think her question was more towards, who is using these certificates? I think one thing to look at, if we're looking at how to make the general population more receptive to the idea of legal aid, it's because there are a lot of families and there are a lot of individuals who are low-income and very vulnerable, in disadvantaged populations who don't have access otherwise. We're not looking, necessarily, at criminal law. I think maybe partly the perception of the community is that we're talking about criminal law only and we're not. Did I misunderstand what you were saying?

Mr Kormos: No, no. We haven't got very much time at all. In your dialogue, you talk about persons with disabilities and seniors. That strikes me as phrasing that was the result of some sort of debate somewhere. Why do you distinguish seniors? Not all seniors have disabilities but the aging process is more inclined to impose disabilities on all of us. Why isn't PUSH just saying people with disabilities?

Mrs Warf: That's out of respect for people who are seniors, who prefer to be just referred to as seniors because they really don't have a disability; they're just getting older. They say: "Oh no, dear, I don't have a disability. I just can't hear out of this ear any more."

Mr Kormos: Exactly. As I get into my 40s, middle age, my hearing is diminishing and I consider that --

The Chair: Thank you, Mr Kormos.

Mr Kormos: Oh no, I consider that a disability.

The Chair: We now move to the government members.

Mrs Lillian Ross (Hamilton West): Thank you for your presentation. I was quite interested. I thought most of your concerns that you have expressed here, correct me if I'm wrong, but according to the act the priorities of the legal aid plan would be set by the corporation. So when you talk about, for example, 84% goes to criminal law, am I wrong in saying that the corporation would determine how they would set their priorities and where they would put their funding?

Mrs Warf: We're saying, when you're looking at how you allocate the legal aid certificates and what you set as priorities, to remember that not everything that is critical out there is criminal law. I think we sort of look at that because we read the paper and we see what's happening out there and you don't put the weight that should be on family law and social law. It doesn't get the same kind of credibility and it needs probably a priority particularly, like I said, if the person is in an abusive situation, they are a victim, or they are in a very vulnerable situation and need immediate assistance.

Mrs Ross: You also made another comment which spoke to the fact that, for example, when you applied for a legal aid certificate, certificates were issued -- I'm not sure if I misunderstood you -- based on the order they come in. Say you're number 1 on the list. You get your legal aid certificate, but maybe number 5 requires that certificate or has a more meaningful reason for applying for that legal aid certificate. Do you understand what I'm saying?

Mrs Warf: Not particularly.

Mrs Ross: You felt that the way they were allocated was perhaps not appropriate.

Mrs Warf: I think we need to look at that entire system and the way they're allocated. Even if you issue a legal aid certificate, then it takes a person sometimes a long time to find a lawyer who will accept it. They've acknowledged their lack of practical knowledge in the situation you're talking about because not a lot of lawyers focus on issues relating to disability. There are a lot of situations and a lot of scenarios that need to be examined and that's the whole idea behind us coming forward with this presentation.

It does not have a lot of merit when people sit at the table to discuss legal aid or the allocation of certificates, and we're saying sit down and take a look at this information when you do discuss those issues because there are a whole lot of people out there who are not getting the kind of legal assistance they require and they're not getting it because they can't afford it or the legal aid system has barriers in the system that prevent them from accessing certificates or finding qualified lawyers to address their issues.

The Chair: Thank you very much for coming forward today. We very much appreciate your taking the time.

At this time, we're going to take about a five-minute recess just to determine the status of the last presenter, if they are showing up or where they are at this time. We'll recess for five minutes.

The committee recessed from 1443 to 1448.

The Chair: Seeing that our last presenter has not communicated whether they're available -- we have tried to reach the individual and we cannot get any response at all -- this committee is adjourned till 10 am tomorrow.

The committee adjourned at 1449.