Legislative Assembly of Ontario

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

CANADIAN BAR ASSOCIATION -- ONTARIO

COUNTY OF CARLETON LAW ASSOCIATION

ASSOCIATION OF SEPARATED AND DIVORCED WOMEN

DEFENCE COUNSEL ASSOCIATION OF OTTAWA

NATIONAL ASSOCIATION OF WOMEN AND THE LAW

CONTENTS

Wednesday 18 November 1998

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

Loi de 1998 sur les services d'aide juridique, projet de loi 68, M. Harnick

Canadian Bar Association -- Ontario

Mr William Simpson

Miss Virginia MacLean

County of Carleton Law Association

Mr Ken Hall

Association of Separated and Divorced Women

Ms Gabriela Bronec

Dr Rosslyn Emmerson

Defence Counsel Association of Ottawa

Mr Norman Boxall

Mr Lawrence Greenspon

National Association of Women and the Law

Ms Lisa Addario

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)

Mr Garry J. Guzzo (Ottawa-Rideau PC)

Mr Richard Patten (Ottawa Centre / -Centre L)

Also taking part / Autres participants et participantes

Mr Gilles Bisson (Cochrane South / -Sud ND)

Clerk / Greffière

Ms Tonia Grannum

Staff / Personnel

Mr Avrum Fenson, research officer, Legislative Research Service

The committee met at 1035 in the R.A. Centre, Ottawa.

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.

The Chair (Mr Jerry J. Ouellette): I bring the standing committee on administration of justice to order to deal with Bill 68, the Legal Aid Services Act. At this time we would call the presenters we have available.

CANADIAN BAR ASSOCIATION -- ONTARIO

The Chair: We'll be having the 11:30 appointment come forward, the Canadian Bar Association -- Ontario. If you could identify yourselves for Hansard, we would appreciate it. There's a total time allocated of 20 minutes. At the conclusion of any presentation you may have, your time is divided equally between the three caucuses for questions and answers. Thank you for coming. Just before you begin -- yes, Mr Kormos.

Mr Peter Kormos (Welland-Thorold): I want to indicate how pleased I am to be in Ottawa, in Mr Patten's and Mr Guzzo's bailiwick, and how nice it is to have these hearings in a building that is owned and that contains programs that are sponsored by, as I understand it, members of the Public Service Alliance of Canada, at least historically. This is as close as we're going to get to a union hall. I'm pleased to be here with the efforts of my sisters and brothers in the federal public sector and I look forward to more occasions. I can help with CAW halls, steel halls or what have you across the province if the government wants any help in that regard.

The Chair: Thank you, Mr Kormos. You may begin, please.

Mr William Simpson: Good morning. I'm Bill Simpson. I'm from Ottawa and I thank Peter Kormos for his comments. Virginia MacLean from Toronto, who appeared before you yesterday, is also here. We are the 11:30 group and not the 10:30 one. What happened, I was told, is that both participants in that, Heather Perkins-McVey and John McMunagle, got called for trials. They both do criminal law and they're in trials and they cannot make it. Somebody has to do some work.

We are pleased to be here and we will try to be short in our submission. You have been given, I hope, a copy that we gave the clerk this morning. I will talk about some of the additional points that were not raised yesterday in the Toronto submission and were not before you before, at least from our point of view.

The first item I'd like to start off with is ensuring the secrecy of clients' files. That's the topic on it. This problem comes about as a result of the quality audits that are allowed by the bill. Quality audits are not something we're complaining against at all. The only thing we're talking about here is whether or not the public who are legally aided should have any different rates than somebody who is not legally aided. The concern we have is that the quality audits that are allowed under section 91 of the bill allow somebody to go in and look at any files regardless of whether there are confidences or there is solicitor-and-client privilege involved with them. In that case, it is a concern we have that the clients should at least be advised and should have the right.

We heard from a clinic in Toronto that they were undergoing a quality audit some time ago and they took the position that they didn't want their clients' files looked at without authorization from the clients. They finally worked out a scheme whereby each of the clients was sent a letter with an authorization. This was a clinic that dealt virtually solely with elder law. They were all senior citizens and all the clinic clients were sent a copy of this authorization. Most of them sent it back and said, "Sure, go ahead and look at my file," but they got a significant number of people saying: "Look, that's my file. I don't want anybody else looking at it regardless of who they are. I am talking to one lawyer in that office who is looking after me and I do not want any of my files to be looked at by other people who are just coming in to do a quality audit."

Our suggestion on that, as you can see on page 2, is that you make a couple of minor amendments and you ask the clients for their authorization. We're not talking about somebody who is defrauding the system or anything like that. We're talking about ordinary clients who have problems and have come in to get them resolved. We're saying, "Don't let everybody take a look at those." There's an easy way around it. You can get enough people who will give their permission.

The second point I want to raise this morning, and the last point, is with respect to protection of the public from unregulated independent paralegals, as you can see at page 2, item 3. The concern we have now is that the bill as drafted allows for paralegals to actually receive legal aid certificates. We understand that perhaps that wasn't the intent of it, that the intent here was to allow minor work to be done under the supervision of a lawyer, and that's fine. But the situation you have here is that if you have paralegals who are independent, very often they have an arrangement with a lawyer and they'll say, "That's my lawyer and everything I do is under his or her direction," which isn't quite so.

What we're suggesting for the recommendations is that you define "service provider" by eliminating the inclusion of a paralegal in it; that you add a new definition of "paralegal" to mean a law clerk or other legal person working under the direct supervision and control of a lawyer; and finally, that you amend it by saying that a paralegal shall not provide legal aid services except under the supervision of a lawyer who has a certificate to provide legal aid services. I think that was the intention of this legislation to begin with, but because of the way it's worded, there seem to be some loopholes in it. I'll turn it over to Virginia MacLean to continue.

Miss Virginia MacLean: Mr Chairman, members, I will repeat the comments I made yesterday. Most of the committee members have heard it, but it picks up on an area which I think wasn't clear at the end of our discussion yesterday and was related to who was going to be the chairman of the board. It's our recommendation that there be 10 members on that board and that three of those members be people who are recommended by CBAO and the County and District Law Presidents' Association jointly -- because we get along, Mr Martiniuk. The other two would be a recommendation from the benchers of the law society, and then five more, probably lay people, would be appointed by the Ministry of the Attorney General. Then they'd meet and select their own chairperson. That would be our recommendation with respect to the composition of a board which would not be controlled by the Ministry of the Attorney General. That, briefly, is the submission. I believe Mr Simpson will have concluding remarks here addressing an issue which we think is very important that relates to funding.

Mr Simpson: The concern I think of anybody who is concerned about legal aid is whether or not there's going to be a commitment to the funding by both the provincial government and the federal government. We know that there are ticklish transfer payment problems and everything else that is here. But unless there is a commitment by both levels of government to properly fund this, there is a difficulty in seeing it go through and there will be problems down the way regardless of who is administering it. Unless there's sufficient funding to do the things that are necessary, it's not going to succeed.

The Chair: Thank you very much for your presentation. That allows us over three minutes per caucus. We begin with the third party. Mr Kormos? No. I believe we'll begin with the government members.

Mr Gerry Martiniuk (Cambridge): Thank you very much for your presentation here today. I'm just interested in exploring the consent to examination of files in regard to a quality audit. I believe that there might be difficulty in locating a number of these people. Would that not be correct?

Mr Simpson: I wouldn't have thought so. They're all clients who are either on a certificate or are clients of a clinic, so they shouldn't be too hard to contact.

Mr Martiniuk: What is to prevent a solicitor who is concerned with what an audit might find from recommending to his client that the files not be examined?

Mr Simpson: I guess there is nothing that would prohibit that from happening. If all of a sudden you got one particular solicitor whose clients all say they won't consent, then you know you've probably got a problem with that solicitor.

In the ordinary course of events, first of all, the director of legal aid is going to know the addresses of each and every one of these people. The legal aid director can correspond directly. They don't have to go through the lawyer. If there's a problem with a particular lawyer, the client is going to be very interested in finding out as well.

Mr Martiniuk: Let's assume that the lawyer involved has a number of files. How long would you assume this procedure would take?

Mr Simpson: To do what? To ask for their consent?

Mr Martiniuk: Yes, and obtain it.

Mr Simpson: First of all, these quality control audits, as I understand them, are not something that have a time constraint to them. First of all they're not in the ordinary course. There aren't necessarily bells and whistles going off to ensure that somebody is going to look at them. They're going to be scheduled a month or two months in advance, perhaps -- I don't know -- but there can be some problem. I know that in the example I was giving you in Toronto with that particular clinic, they got enough people to make it a valid quality control audit but it protected the secrecy and the privacy of the individuals.

Mr Martiniuk: Would you not envision that some follow-up would be required for people who don't even answer the letter?

Mr Simpson: It may need some follow-up.

Mr Martiniuk: Which will take additional resources. Who would pay for that?

Mr Simpson: I don't think you're looking at getting 100%. If you're doing a quality control audit -- and I don't know what the statistics are; it's not my bailiwick -- I know you don't need 100% of the people. You don't need each person to reply to you; you need a proper statistical number of them. That may be as low as 10% or 15%, I don't know, but you don't need to go through all the files, so you don't have to follow up.

The Chair: Thank you, Mr Martiniuk. We now move to the official opposition.

Mr Richard Patten (Ottawa Centre): In the same area, the privacy commissioner has already expressed concern in a number of fields, especially in the medical field, with the right to confidentiality of files. I would ask this: If the purpose of the audit is really the fairness of the charges and work done for a client, what would be your recommendation as to how you can keep the content of a file separate from schedules or times met, or what sorts of things could occur that might be able to be verified in a different manner, other than the examination of the content of a file?

Mr Simpson: I think at the present time, when the law society goes in to do their auditing, that type of auditing, they are able to look at all the financial information, all the financial records including the trust accounts and the bills and so on. They don't necessarily have to go into the solicitor and client files, and they shouldn't be going into them, in our submission. I know there are solicitors who actually keep separate from the client files the privileged and confidential material. They will keep it separate and that's something all solicitors can do if they choose to.

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Mr Patten: That seems eminently wise and satisfactory to me. If there is, perhaps by exception, a question about a particular file that may be contentious, then perhaps in that instance, which may be by exception, as I say. That might answer the question.

Mr Simpson: Yes.

The Chair: Thank you, Mr Patten. We'll move to the third party.

Mr Kormos: To carry on with this particular issue, let me ask you this: If I retain you, let's say, to defend me after I've been charged by the Attorney General on a phony, trumped-up --

Mr Simpson: That would never happen, Mr Kormos.

Mr R. Gary Stewart (Peterborough): Only you, Peter.

Mr Kormos: -- on a phony, trumped-up beef that was entirely political in its nature --

Mr Garry J. Guzzo (Ottawa-Rideau): You would have asked for a jury, Peter.

Mr Simpson: I don't have to answer that, do I?

Mr Kormos: -- because we caught the Attorney General in an embarrassing position, to wit, having lied to the people of Ontario about the status of the family support plan office.

The Chair: Mr Kormos, I would ask you to withdraw the remarks.

Mr Kormos: Unfortunately, in committee you don't have the power to do that, Chair.

The Chair: I do have the power to ask for it. You don't have to comply with it but I have the authority to ask for it.

Mr Kormos: Thank you kindly. Let's carry on with the question. Don't use my time, Chair.

Let's assume that were the case and I retained you to act for me. Who is the owner of the contents of the file? Whose property are the contents of the file that you have in your office? I don't expect to take my file with me after you've got me an acquittal and had the judge dump all over the prosecution because it was such a phony, trumped-up charge. Who has property in that file?

Mr Simpson: The client is basically the person who has the property in the file. The lawyer may have property to certain parts of it, but the bulk of the file belongs to the client, in my opinion. I'm not even sure if my colleague will agree.

Miss MacLean: I agree 100%.

Mr Kormos: I wasn't sure. I'm relying upon your expertise in this regard.

Miss MacLean: No, that's right. It's your file.

Mr Kormos: To reinforce the concerns you raised about notwithstanding an audit for the purpose of quality assurance, the need to obtain the consent of the client, would there be a scenario wherein a lawyer who has possession of the file -- is it a fiduciary duty to the client?

Mr Simpson: Certainly there are fiduciary duties. The biggest thing here is that when you get a solicitor and client privilege, the privilege belongs to the client. It does not belong to the lawyer. The lawyer cannot waive that privilege without the client's consent.

That was one of the problems in the case that took place recently under the Criminal Code out in Alberta where Madam Justice Veit threw out the provisions of search and seizure in a lawyer's office on the basis that it was up to whoever was present in the lawyer's office, when the storm troopers came in to take a look and seize things, it was up to somebody in that room to say, "No, you can't look at that file at this point in time because we say there's privilege."

If there wasn't anybody there, if the lawyer was sick or ill or anything else, there was no privilege claimed and the police could take it away and they could look at it and so on, what she basically says is: "Hey, you can't do that. It's the client who owns the privilege."

Mr Kormos: On the sections you're critical of, do you think the government is inviting litigation, in terms of the sections that the government proposes, interfering with the rights of that client? The government doesn't have a very good track record -- this government doesn't, anyway -- when it comes to the courts. It has lost almost every case it has embarked on as far as I'm aware. Do you think the government is inviting yet more litigation because of the violation of a client's right vis-à-vis his or her own file?

Mr Simpson: Let me put it this way. We have also made a very similar argument on Bill 53, which this committee will be hearing at some time, which is the act to amend the Law Society Act. We have the very, very same concerns there. Protection of the solicitor-client privilege is not there, and the concern is that if it's taken, there could be lawsuits over it. I can't tell you the extent of that.

The Chair: Thank you very much for coming forward and presenting today. We very much appreciate it.

Mr Simpson: Thank you all. If I may, we have left with the clerk copies of our submission on Bill 53. We thought it was an opportune time to pass them out to the members of this committee so that they could have them at this point in time. I know it's not what you're dealing with today; I understand that.

COUNTY OF CARLETON LAW ASSOCIATION

The Chair: At this time we would call our next presenter, the County of Carleton Law Association. If the representative could come forward and identify yourself for Hansard, we would appreciate it. Thank you for coming. You may begin.

Mr Ken Hall: Good morning. I'm Ken Hall. I'm a trustee for the County of Carleton Law Association. My duties are with the criminal section of that association. I've been involved with legal aid. Just by way of some background, I'm a criminal defence lawyer and have been for some 21 years. I think I've survived the legal aid crisis and here we are again.

How are you, sir?

Mr Guzzo: Very well.

Mr Hall: Good.

I was just sitting there for about 10 minutes and I think that I am going to be reinventing the wheel here, but from what little I got of Mr Simpson's submission, he has also addressed -- and I'm sure it's not new to you -- what our concerns are. Not to get anecdotal, but let me just go back in time. As an association -- and as you'll hear later on in the morning from Mr Boxall on behalf of the Defence Counsel Association of Ottawa -- we have long supported the judicare system and the certificate system, and I note from the draft bill that those in some principle and fashion are maintained.

As an overview and maybe as a personal observation, I can also tell you that we have, as I indicated, survived the legal aid crisis. When that was going on, a number of options were bantered about; that is, whether the law society should keep the plan, whether it should give it up, whether it should be handed over to an independent panel. Quite frankly, there was a lot of support for the position that better a devil you know than a devil you don't. But at the end of the day it was decided that it would be handed over to this what I thought in any event was an independent committee; you call it a corporation or board.

The first comment I'd like to make in review of the bill -- again I apologize if I'm repeating old news here -- concerns section 5. Paragraph 3 of subsection 5(2) says, "Five persons recommended by the Attorney General," which was always understood to be the status quo. Then go up to paragraph 2, "Five persons selected by the Attorney General...recommended by the law society," and go to paragraph 1, which says the chair of that is to be one person appointed by the Attorney General on recommendation. On appearance alone, it seems that this is a committee of the Attorney General.

If you just cross-reference that with the reporting section, which indicates that the commission is to report to the Attorney General -- to be frank with you, we have some concerns. Is this a committee of the Attorney General or is it completely independent? When we recommended that it be handed over, we were under the impression it was going to be five, five and one. I just want to caution that the impression that's left in reading section 5 is that it's the Attorney General.

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The other concern we have, and I heard Mr Simpson speaking of this, relates to the paralegals. In your definition section, you call them service-providers. There's a lot of discussion of late with regard to paralegals entering the fray and becoming part of the legal establishment. Call it what you will, a selfish interest -- I don't think I would go that far -- but paralegals are very topical these days. What you have in your section 14, and indeed section 31 of the bill, is an institutionalization, in my respectful submission, of paralegals. My read of it is that you have a vehicle in which paralegals, under the auspices of one or two or whatever lawyers, can not only provide services but actually, if you read section 31, can not only be issued certificates but also be accountable for the accounts and the various entries pursuant to that certificate.

What I see happening here, and there are other commissions ongoing in this regard, is an unregulated body being now incorporated in this bill. I know that there are committees going on with regard to paralegals, but at this point in time they're unregulated. I know the omnibus bill that's coming out in February may address some of the criminal defence bar concerns but at this point it's unregulated.

One of the other concerns I have is the wording of sections 19 and 20 with regard to clinics and duty counsel. When we were going through the legal aid crisis, one of the big motivating factors was the anecdotal history of dumpsters who were abusing legal aid, the dumpsters who would do 400 pleas of guilty in a row and --

Mr Gilles Bisson (Cochrane South): A very profitable business.

Mr Hall: The theories or the stories were that these dumpsters were doing 400 pleas of guilty in a row and they were billing the plan $400,000, $500,000. In reality, what's happening right now is that the duty counsels and the staff lawyers addressed in sections 19 and 20 are becoming dumpsters. I guess the theory at the end of the day is that it's wrong to be a dumpster at $400,000 a year but it's OK to be a dumpster at $40,000 or $50,000 a year. That's a concern. I just hope somebody has stood at the legal aid door these days and seen the lineup of people who go into legal aid and are processed like numbers. I don't have the stats with me, I can provide them for you, but they get 10 and 15 new clients a day. Somehow that is OK if you're a staff lawyer staffed by legal aid.

The status quo as it stands right now, and I should say I'm dealing in criminal terms now, is that these duty counsel cannot do any proceeding cases. What they do is they offer whatever advice they can in the one or two or five minutes they have with these people. If the suggestion is, or the client's instructions are, that he's to go to trial, he's sent to trial all on his own.

I'm a bit concerned about the duty counsel section, subsection 20(2) of your bill, "A lawyer who acts as duty counsel shall perform such functions as may be prescribed." I see the day coming when we're going to again be institutionalizing the public defender system of the States. I don't want to get into a long philosophical discussion, but the certificate system, in my respectful submission, works. It individualizes the client. It gives specific attention to that client that I think the numbers can't give through the duty counsel system.

Don't mistake what I'm saying. There is a need for the duty counsels, but their function has to be, I think, more defined in the bill. As I say, I think the door is opening to public defenders in Canada. Let me just tell you the reality of the situation in our courts -- and it may be a fault of the judiciary; it may be a fault of the system -- that when these underrepresented accused do end up in our trial courts, the duty counsel presently is being asked to attend to those matters in trial court. That is not their mandate but, as I say, I think subsection 20(2) opens the door.

The other concern I have -- and, again, maybe it's because we're a bit gun-shy after the crisis -- is the transition period and the transition from the law society to the Attorney General. I'm a bit concerned about ongoing, unpaid bills during that transition period. I think the bill can be fine-tuned a bit more in that regard.

I'm also concerned about ongoing obligations that the law society may have. I know it's addressed in the bill but, as I say, I think it needs some fine tuning with regard to ongoing obligations: leases, salaries, leases of office space, leases of equipment. I think that matter has to be addressed as well.

The Chair: That allows us over two minutes per caucus. We begin with the official opposition.

Ms Annamarie Castrilli (Downsview): Thank you very much for being here this morning. You raised a number of issues. I'd like to pursue two of them that we've not really had much discussion on in the time that we have.

Let me raise the first one, which is that virtually everybody who has come before us has expressed dissatisfaction with the appointment process and with how the individuals who are to be appointed are going to be selected. Everybody has told us that they want input in that selection process. As we sit here as legislators, I'd like to hear from you why, for instance, your proposal is better than so many others that we've heard. I'm not trying to play devil's advocate. I'm really trying to understand how we balance everybody's interests in this, knowing full well that you do have a very real role to play.

Mr Hall: You mean about the Attorney General?

Ms Castrilli: Yes, absolutely. We've had people say, "You've got to have tenants' views on this. You've got to have immigrants' views on this. You've got to make sure that they're represented on the board. You've got to make sure that aboriginal people are there." I'm just wondering if you can give us any advice as to why your model would be superior to so many others that we've heard so far.

Mr Hall: This may be opening up a whole can of worms, but I don't know why the emphasis is on non-lawyers either, not that other factions of society shouldn't be represented, but lawyers are the ones who work in the courts every day. They are the ones who do the family law. They're the ones who know the concerns of the courts and of the process.

I'm not answering your question, but I don't know why lawyers can't be involved in that process on an independent basis. Why is it that the Attorney General gets to appoint these people? Are we catering to the various groups or are we catering to a system that we want to work better?

My read of the government is that it's the bottom line and they want everything to work better for the least amount of money. I think if that can be accomplished by way of, as I say, lawyers dealing with it -- but I always thought it was to be independent. The Attorney General did not have that overseeing of --

Ms Castrilli: But you would agree that --

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

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Mr Kormos: Mr Bisson has a question as well.

Thank you kindly, Mr Hall. You know the member for Ottawa-Rideau. You've known him for a good chunk of time, haven't you?

Mr Hall: Yes.

Mr Kormos: You've known him as a good lawyer, an experienced lawyer?

Mr Hall: I never knew him as a lawyer before, but as a judge.

Mr Kormos: You knew him as an experienced judge.

Mr Guzzo: Be careful, Peter. He's brutally honest.

Mr Kormos: You've witnessed this government over the course of the last three years, haven't you?

Mr Hall: Yes.

Mr Kormos: And you saw what the Attorney General did with the family support plan?

Mr Hall: I understand that.

Mr Kormos: Don't you think Mr Guzzo would have made a better Attorney General than Charlie Harnick? Now tell us the truth. Don't you think he would have been a better Attorney General than Charlie Harnick?

Mr Hall: You're putting me in a rather awkward position here.

Mr Guzzo: I don't like New York on the weekends.

Mr Kormos: If they're free, what the heck, Judge.

Mr Hall: I'm not addressing my comments to a person. I'm addressing my comments to the office of the Attorney General. It just smacks of -- everything has to be approved by the Attorney General, not the person.

Ms Castrilli: Good answer.

Mr Bisson: I just have a quick question. We know that the government wants to allow paralegals to be able to get a certificate. The second point is that we know that profession is unregulated. We also know that if they're unregulated and they get a certificate and they botch the job, there's no way that the public can get at them in any kind of way to try to fix the mess that has been created. So why in heck would the government want to allow paralegals to get certificates? What's going on here?

Mr Hall: I don't know. You'd have to ask them. I agree with you. I see nothing wrong with the quality controls that are presently in place by the law society. Call it self-regulated, but I think we're well regulated. The assurance controls that we have are there. They've opened the door. I know they've opened the door.

Mr Bisson: Shouldn't we regulate them or allow them to be self-regulated before we allow them to give certificates? Shouldn't we do that first?

Mr Hall: I don't want them in there in the first place.

The Chair: We move to the government members.

Mr Guzzo: Ken, thank you. I appreciate your comments. I know you're here in your capacity as the legal aid chair, but I'd like to talk you as a practitioner of 21 years.

Mr Guzzo: A large percentage of legal aid money has gone to immigration law, or what they call immigration law. Eighty per cent of that is probably refugee law, and we're told that 90% of all refugees who come to this country go to three cities, Vancouver, Toronto and Ottawa, two of them here in Ontario. My question is this: Can you envisage a situation where a refugee, a person who illegally lands in this country, would be entitled to --

Mr Kormos: Whoa, whoa. You're a refugee, but not illegally, Judge.

The Chair: Order, please.

Mr Guzzo: All right -- who, without pattern or design, arrives in this country, would be entitled to the funding of legal aid in advance of a citizen of this country who has paid taxes, and particularly somebody like a married woman involved in a matrimonial and a custody dispute? Can you envisage a situation where priority should be given to a refugee over a taxpaying citizen of this country?

Mr Hall: No. Back in 1991 or 1992 when the law society was meeting with regard to the legal aid at the start of the crisis, we made a pitch that immigration law and the funding of immigration law should be shouldered by the federal government. It's federal statute-based, if I can call it that. I'm misspeaking my words.

Mr Guzzo: So is criminal law.

Mr Hall: So is criminal law, but you're right. It is centred in three cities and has overtones to it other than criminal law. Criminal law is coast to coast.

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

ASSOCIATION OF SEPARATED AND DIVORCED WOMEN

The Chair: We would call upon our next presenters, the Association of Separated and Divorced Women. If you could come forward and identify yourselves for Hansard we would appreciate it. Thank you for coming. You may begin.

Ms Gabriela Bronec: Thank you for the opportunity to appear in front of the committee. This is our first time so it's kind of a premiere for us. We've had very little time to digest the bill in front of us, so we have made as many recommendations as possible in the given time. I shall mention some of the parts of the submissions --

The Chair: Before you go on, could you just identify yourself for Hansard, please?

Ms Bronec: My name is Gabriela Bronec and I'm president of the association. This is Rosslyn Emmerson, vice-president, English, and Barbara Mackey, our director and coordinator of support groups.

We are the Association of Separated and Divorced Women. We are a membership-based, independent, non-profit, voluntary, non-partisan, inter-denominational organization run by women for women in Canada and registered in Ontario since 1994. Since then we have represented over 2,000 women. We work on the front lines. Notwithstanding that we provide services for women, we do not exclude men. If a man calls up, he will have the same treatment as the women would.

Our mandate is to provide support, education, referrals and advocacy for women and children experiencing the dissolution of marriage by separation and divorce, with the aim of achieving economic equity for these women and children.

We have found that after separation and divorce, and during it, most women are experiencing incredible impoverishment, and as a result they are discriminated against in all manner of services. The legal services are the most important as far as we're concerned, so to that end, when we looked at Bill 68 we concentrated on the following aims.

Access: to ensure that low-income families have comprehensive access to the legal aid services they require during the separation and divorce.

Quality of service: to ensure that low-income families have access to legal services of a comparable quality to that available to other families not dependent on legal aid.

Recourse for complaints: to ensure that there is an appropriate and effective means to appeal eligibility decisions and to have redress for complaints concerning financial arrangements and both the timeliness and quality of legal aid services in family law cases.

Alleviation of hardships borne by children: to ensure that the children of families experiencing separation and divorce are not exposed to further hardship and disruption in order for their parents to pay for legal aid services.

I will not speak about all of our recommendations because I will probably run out of time, so I shall touch on only the most important, as far as I can see, in this bill.

Recommendation 3: The corporation is required to provide legal aid services in all areas of family law. We recommend that Bill 68 explicitly stipulates each of the sub-areas of family law for which the corporation is required to provide legal aid services. This is part III, subsection 13(1).

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We found that the bill is called "legal aid services," and we went through pages and pages of how the corporation will be set up and so on. When we get to part III, section 13, there is one small paragraph referring to the services. We were amazed, because since 1994 legal aid has been cut drastically. Legal aid certificates were issued on a very sporadic basis and they were issued in different categories. I have the 1996 one here. There were six categories or priorities: first priority, second priority, third priority, fourth priority, fifth priority. These priority applications were just a horrendous problem for our women. They couldn't argue their cases properly. They couldn't get decent lawyers because lawyers were already working, as they said, on a low-rate basis. When this was cut, they argued that six hours, which they were allocated as a result of legal aid, couldn't produce any decent results.

Recommendation 5: The corporation is required to ensure that the provision of family law services is granted equal or greater priority than the provision of criminal law services. This is part III, subsection 13(1) on the first reading of the bill.

We have nothing against legal aid provisions for criminal cases. What we have found is, the amount of money which is taken by the criminal law is far, far greater than the family law, and yet when the cuts were arranged, the family law was hit by far the hardest. What we would like to see in future is that this will not happen. I think we know why it happened and I will speak to that a little bit later.

Recommendation 6: The corporation is required to provide legal aid services that are of a comparable quality to those available privately. In practice this means that legal aid clients should have access to the same pool of lawyers and other legal service-providers as non-legal-aid clients.

We know what happens. We have lots of women who have been married for 23 years, their children are grown up, and suddenly they divorce. This woman has no record in the labour market, she has no personal financial investments because this was handled by her husband, and suddenly she requires a lawyer. The husband is still in the workplace, often with a high income. He will go and hire the best possible lawyer for his money, and this woman is scrambling to match that with legal aid. It's not possible. It's very hard. As a result, the initial impoverishment which happens soon after separation continues right to the end of her life. We strongly recommend that this should not happen. Just because of the occurrence of separation, this woman should not end up hard up and on the welfare line.

Recommendation 8: The corporation is required to ensure that all family law cases eligible for legal aid be brought to finalization by legal aid. It's not to be withdrawn prior to the finalization of settlement. This is recommendation 8.

We have found in the past that when women engaged a lawyer and he felt the case was going to be harder than he expected and he was not going to get a legal aid certificate, then he just dropped the case and this woman had to scramble and either borrow money or just withdraw from the litigation altogether. This is part III, section 13 again. We put all this under section 13.

Recommendation 10: clear, explicit stipulation in Bill 68 of the means whereby the corporation must provide prompt and appropriate recourse for clients who have complaints concerning the legal aid services provided and/or the fee charged to them for those services, including an independent ombudsman to facilitate such recourse.

We applaud the notion of an independent corporation handling legal aid. However, we have a problem with the way the corporation is going to be run and the directors appointed. We do not say that the Attorney General shouldn't have a priority in appointing the directors; however, we are saying that there should be an independent ombudsman who will oversee any kind of changes in the corporation's services. Also, because as far as we are concerned we are the number one clients of the services, we would like a person to contact when we have a problem either with a lawyer or with legal aid. This has been very difficult in the past.

Recommendation 12: The corporation is required to use a management information system based on comprehensive statistical data collected by individual sub-areas of legal aid. This is clause 59(1)(f), page 31.

We have put this recommendation because when legal aid was cut in 1994, we argued vigorously, we made submissions to legal aid and all people possible about possible consequences of these cuts. They said, "Oh no, there is no problem," because according to the statistical data, the number of cases as far as family law was concerned and the money which was set aside for it was negligible.

I have a copy of the Ontario legal aid plan annual report, 1994, where they stipulated total fees and disbursements as far as legal certificates were concerned. They outlined, in civil law, uncontested divorce and contested divorce, and above that -- I can make a submission to that -- there is money set for criminal cases. By far, this is a pittance.

When we saw this, I contacted legal aid and I said to them, "Could you possibly tell me how many legal aid certificates were issued for women who were going to through separation and divorce?" They said to me, "We can't." I said, "Why not?" "Because we don't have a computer to compile the statistical data." I said, "How could you cut anything, how could you recommend finances for next year or the year after if you don't know how many certificates should be issued or not issued?" For that reason, we are putting recommendation 12, that there be a section for setting up an information bank, but we would like that information bank to be very comprehensive, with pertinent data relevant to the legal aid certificates by gender, not only by criminal or civil law.

That's my final submission.

Dr Rosslyn Emmerson: I would like to emphasize one of the points that Gabriela was making, that our real concern here is that by making explicit what areas of family law are covered, we want to be sure that people who are eligible for legal aid are going to be able to claim it. Our concern with the setting of priorities and budgets and delegating that, not making it explicit, is that what happens in reality is that these priorities are used to exclude people who are eligible for family law from receiving those services. So, perhaps if you fall into priority one or two, you have a chance of getting services; if you fall into priority class three or four, you don't. If it is the intention of the law to exclude people from getting family law services in those low priority areas, then that should be explicit as well. We should know what we're actually doing with this bill.

The Chair: Thanks very much. That allows us about a minute and a half per caucus. We begin with the third party.

Mr Kormos: It's not enough time. The area of family law has been probably the most brutally impacted by the restraints on the funding, by the caps on the funding, and the fact is that there are precious few lawyers in family law who want to or can carry a family litigation file on the limited number of hours they're allowed and so on.

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You heard what the member for Ottawa-Rideau had to say to the last participant, remember? Part of his comments were directed at you folks back there, where he was saying, "What would you rather have, a system where some refugee from outside of the country got priority over a woman seeking family law redress?" Let me just respond to that with you up here, because that's the sort of divide-and-conquer philosophy that doesn't do any of us any good.

Might I remind the member that many of those refugee claimants are women and children. Might I remind him and ask him to take a look at some of the affidavits that these women swear out and remind him what happens to women in those countries where they are fleeing political persecution, where they are being raped, where they are being assaulted, where husbands are disappearing in the middle of the night. I simply respond to the member, because his comments were very much directed at you, knowing that you were here, that we can't use divide-and-conquer. It's not a matter of saying that one is more important than the other. We have to find ways of equitably ensuring that all persons who need legal services, be it refugee services, be it family litigation, be it criminal law, are provided them.

Dr Emmerson: I would tend to agree with that. The aim here is that people who are eligible for receiving legal aid should be getting it and shouldn't be excluded on the grounds of priority.

The Chair: We now move to the government members.

Mr Guzzo: Thank you for your presentation, and for the work you have done here. If I could pick up on that point, in my 30 years at the bar, some years exclusively on family law but always involved, I say to you that your organization is not well known. Your work is, and it's appreciated and I commend you for it.

With regard to the point that my friend Mr Kormos raises, I'm sure you noticed that Mr Hall picked up on the message. It wasn't a matter of "Divide and conquer." I don't deny that some of the affidavits filed in refugee cases are by women representing children and are extremely disturbing, but the fact is that it is a federal responsibility and we're taking provincial dollars here, a large percentage of provincial dollars, and applying it to those, at the expense of taxpaying people, particularly in the area of family law. We have a problem with the criminal law because we have a Constitution in this country, we have a Charter of Rights, and because of that we're obligated.

I'm somewhat perturbed at the number of practising lawyers who are not aware of your organization, even those who are in the field and do matrimonial law. I would also be remiss if I didn't point out, and this was obvious to me in my years on the bench, the number of senior counsel who do matrimonial law in this area, in this city, and who do a large proportion of legal aid work is encouraging. Some of the most senior people continue to do a percentage of their practice and take legal aid certificates. I think that speaks well of the profession.

Ms Bronec: Yes, it's true, we are not very well known, for two reasons. One is that we have to mind certain security provisions. No one can provide security for us. The other is that, like most of our clients, we don't have money and we have to weigh, are we going to collect money or are we going to concentrate on work? We are independently funded, so for that reason we work with all levels of government, or try to. We are very inclusive as far as services and everyone knows that.

The Chair: We now move to the official opposition.

Ms Castrilli: Thank you very much for coming here. I want to respond to my friend Mr Guzzo across the way to say that the charter, under section 15, guarantees equality to women. It doesn't say, "unless the Criminal Code takes priority." What we're talking about is justice for women and that's really what you're here about.

You asked some very interesting questions, and I don't know if you've had a chance to look at the McCamus report on legal aid but it answers part of your question. In fiscal year 1993-94, prior to this government coming to power, there were some 65,691 family law certificates issued, and they covered a wide variety of areas in family law. In 1996-97, the plan was granted the ability to issue 29,000 but they in fact only issued 14,000, and they were only priority one. Those are pretty shocking figures as to what's happening. As you know, some services were eliminated altogether. On top of that, they put a maximum on the amount of hours that could be spent in the service of family law, from a maximum of 15 hours to 6.5 hours. Anybody who practises in family law knows that 6.5 hours doesn't get you very far at all. It doesn't even get you to negotiate an agreement, let alone if you have to go to court. There are some provisions for extending that, but it's only in the exceptional circumstance. So there's a huge problem here.

I want to thank you for the recommendations you made because I think they highlight a very serious problem of equality and access to justice.

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

Mr Martiniuk: This might possibly be an opportune time, while the next presenters are coming up to the table. Ms Castrilli asked a question of me and of the ministry as to whether any certificates under the present and old system had been issued to paralegals and, if so, how many. The answer is that we are not aware of any certificates ever being issued to paralegals.

Ms Castrilli: So the Attorney General was mistaken.

Mr Martiniuk: I'm not aware of his statement, so I don't know.

Ms Castrilli: Very well.

DEFENCE COUNSEL ASSOCIATION OF OTTAWA

The Chair: We call on our next presenters, the representatives of the Defence Counsel Association of Ottawa. If you could identify yourselves for Hansard, we would appreciate it. You may begin.

Mr Norman Boxall: Thank you. My name is Norman Boxall. I'm here as president of the Defence Counsel Association of Ottawa-Carleton, which is a group of lawyers who practise primarily criminal law in the courts in this region. With me today is Lawrence Greenspon, the first vice-president of that organization.

We've had an opportunity to look at the act. I provided you all with some written material which briefly outlines some of our concerns, but what I was going to address orally may not be exactly the same as what's in writing, and what's in writing can be left with you.

In looking at the act, and you're at this stage of considering the act, one must be cognizant of the fact that there are a great number of acts that have sections in them which sound great, but it's the application of the act that's important. This act allows for a tremendous amount of determination by regulation and future application. Without knowing what the regulations are or who's administering the act in the future, it's hard to determine the exact focus it will take. So there will be very important determinations made at the regulation stage in the implementation of them.

In looking at any act dealing with legal aid, I think it's absolutely critical that one must consider what the goal is: What is the purpose of the act? What are we trying to do? As a minimum, from a criminal lawyer's perspective, it should be that there be equal access to justice and that the quality of one's defence is not determined by the size of one's bank account. It's absolutely critical that the public have faith in the system. It's absolutely critical that the system work. It cannot be appropriate that it is in practice, and a view, that if you're wealthier you have a better defence.

I appreciate that in any public program, the government will always have concerns about cost and what they can afford, but it's absolutely critical, in my submission, that when low-income persons are appearing in criminal court, this isn't a private matter. This isn't a matter that they're choosing to be in court. The government has them in court. They're presumed innocent. We know, of course, of certain high-profile cases, and there are probably lots of others that aren't high-profile, where persons are wrongly convicted. These persons are presumed innocent, and as best the government can do it with funding and as best the Legal Aid Act can allow, they must be given a defence that's equal to that of someone who's wealthier. If they're not, there are other costs to the system beyond what is paid out in legal aid dollars.

One of the great concerns I have is measuring cost. Do we just measure the cost by how much we pay in any given budget? When we do that, we run into problems. We operate in the federal system. There's money from the federal government, the provincial government and municipal government, and all of them are involved in one way or another with criminal law, whether it's municipally with respect to police and services, whether it's federally with respect to certain legislation, whether it's provincially largely in the administration.

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If we just focus on any one particular budget, we sometimes lose track of the fact that there's only one taxpayer. We may save some money on legal aid if we do something here, but it costs us more perhaps in policing costs. One must take a look at the total cost and one cannot lose sight, in my submission, of the cost to society as a whole if legal aid is viewed as second-class or if persons who have legal aid counsel are not being given an equal defence.

We only need to look south of our border to see the consequences of jurisdictions where there's a prevailing view, if not in fact, that if persons don't have the means, they are not adequately represented. In my submission it's critical in the act, and in the implementation of this act with the regulations, that there continue to be sufficient funding and that the focus should be on ensuring that low-income persons charged with crimes are represented by persons of the same calibre and experience as persons who have more money.

A concern that we have also with respect to the various studies that have come forward is with different delivery models. Obviously, when the new body is set up, there is going to be consideration as to whether the services can be delivered as effectively and perhaps less expensively with a different model. Primarily in the criminal law system, we've had a system of judicare. Simply put, it means that a person who qualifies for legal aid financially has a choice of lawyers. They're not assigned a lawyer; they can choose among any member of the bar who is prepared to take it. Thankfully, for many years, many qualified and experienced lawyers are on that panel. You cannot tell when you're in court whether the lawyer is privately retained or whether he's on a legal aid matter in many cases, and that's the way it should be.

A concern we have is the suggestion that maybe cases could be blocked off and sold to the lowest bidder where a person would agree to take a block of cases and persons accused of crimes would be auctioned off. The potential for abuse there is obvious.

We're concerned about the suggestion that comes out of the McCamus report of the increased use of duty counsel beyond, in my submission, what they're capable of. It's a very interesting dichotomy between what McCamus tells us should be done in the defence of accused persons and what we see being suggested in the prosecution. In all the inquiries and studies with respect to the prosecution, it's made clear that at the earliest stage it should be very experienced crown attorneys making decisions and screening the cases, whereas in the defence, McCamus is suggesting that we use the least experienced, that we have duty counsel who have huge burdens screening cases and making the initial determinations.

Just as with respect to the crown attorney's office -- and they're finding out with respect to costs and other costs -- having experienced people at the front end saves you money; it doesn't cost you money. Bigger expenses result when you have inexperienced people or people who don't have the time and resources to make the decision that should be made at the early stage. So we have concerns there.

We also have concerns with regard to the potential under the act that non-lawyer service providers, whatever that might be, could be issued certificates. Our submission is very strongly that whatever that might be, in other areas of law with respect to criminal representation, with respect to appearing in court where persons face the possibility of incarceration, where the implications of a criminal record are in many cases devastating with respect to employment or future prospects -- those consequences last a lifetime -- those persons cannot be and should not be represented by non-lawyer service providers.

In addition, there sometimes seems to be a debate between "What can we afford?" and "How much is this system that you're proposing?" and "If we have that, it's going to be too expensive." But it's important to keep in mind that, as we see in almost all other areas of government, just because it's done by the government or it's done by staff people in the government, that doesn't make it cheaper or better. In many other areas we're attempting to privatize systems, and yet in the defence of accused persons there's the suggestion that maybe we should take some of it away from the private bar and create some bureaucracy.

Whatever the projections are about cost by implementing government agencies to do the work that's largely being done in the private sector now, I can tell you this: Any projection for what it will cost the government to do it is low. We know that. It's been true in every other area and it will be true with respect to legal aid also, and the costs will only continue to increase as the bureaucracy increases.

The private system particularly in criminal law is absolutely critical that it be maintained and that we continue to have services offered by lawyers who are not government employees, not employees of legal aid, who are independent, who can stand up in court and represent their clients fearlessly and without concern as to their employment situation.

Another concern we have is with respect to sections of the act that change the governing body. There is no doubt that there can be some valid criticisms made of the law society. In fact, many lawyers wanted the control of legal aid taken away from the Law Society of Upper Canada and given to this new corporation. However, in my submission it is part of a sentiment that lawyers somehow are not capable or are looking out for themselves or some sort of anti-lawyer sentiment. I notice that the act statutorily recognizes that a majority of the board must be non-lawyer. Why? This seems to me to be rather odd. I don't know any other area where we would statutorily put in that the majority has to be not of some particular training.

If one thinks that merely by changing the governing body from a majority of lawyers to a majority of non-lawyers, it will improve the situation, they're mistaken. The underlying problems will still be there. Non-lawyers have a lot to offer, true with respect to administration and so on, but lawyers have a lot to offer too. I have very great concern about expressing in a statute that the majority must not be of any particular profession. Surely the persons who are most qualified, regardless of their profession, should be those who are on the board. If the government chooses to appoint non-lawyers, so be it, but to put it in the act, in my submission, is wrong.

The budget indicated in the act will remain the same for the next three years as it is for this year. It must be remembered, if that's being considered, that the budget this year is substantially less than it was five years ago. It's a bare minimum amount. The amount of services being conducted under that current budget are minimal. In fact, there should be an expansion of services. In freezing the budget for three years, it gives some stability to the new legal aid corporation. However, legal aid is not an agency, no matter whether the law society controls it or a corporation, that can determine in advance what its needs will be. It depends on demand. If a recession should reoccur, and there are lots of economists forecasting it when I read the paper, we know there will be an increased demand for legal aid. If the new legal aid corporation is stuck with a budget that was based on a time of relative prosperity and the demand goes up, they will be saddled with the same problems. There should be provision in the act to allow for increased budget in times of increased need.

In the criminal law context, not only is the economy a factor in the number of cases that need it, the government also has a large control of how many cases there are. New government initiatives in the areas of driving offences, in domestic assaults, there are legitimate purposes for all of these. However, it must be understood, as it clearly is because the government is increasing the complement of judges, increasing the complement of crown attorneys as a result of some of this legislation, that there will be increasing demands on legal aid. If the legal aid budget is frozen, it's not going to be enough. There has to be provision to allow it to be expanded in times of need.

In conclusion, regardless of the best of legislation or the best of intentions, the proof of this act will be in the regulation and its implementation and whether or not this government and subsequent governments are really committed to ensuring that low-income Ontarians have access to justice and whether they're prepared to fund it. It must be funded.

That's essentially what I wanted to say. Mr Greenspon may have a couple of comments also.

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Mr Lawrence Greenspon: I just have a couple of comments and I will keep them brief, because I would prefer that we try and answer your questions. If we can be of any assistance to the committee, we'd like to do so.

What you're being asked to do is very popular; let's face it. You stick it to the criminal lawyers, you stick it to the criminals, people who are portrayed as criminals, and everybody is going to love you. It's great stuff. Politically, you can't lose. But the problem is that in doing that, if you're tempted by doing that -- and undoubtedly you'd be foolish if you weren't tempted to do it -- two things are going to happen. Number one, while we study the Morin commission recommendations, and Milgaard and Marshall and others that will follow, the number of people who are wrongfully convicted because their counsel did not have sufficient resources to access the evidence, to show that they were truly innocent, those numbers of wrongful convictions are going to increase. The harder you squeeze the defence lawyers and the people they represent, the more likely that people are going to be wrongfully convicted, and it has already started to happen as a result of the last round of cuts. There are more and more people appearing in courts who have defences to charges who are pleading guilty because they're offered sweetheart deals and they have no counsel. So it has already started to happen.

The other thing is much broader and it's something I know we can all relate to: that the measure of our democracy, the measure of our society is how we treat the marginalized citizens of our community, how we treat the poor, how we treat the people who really need counsel in these situations where the state is facing them, and how we treat those people is a measure of our democracy. I ask you to keep that very broad and important principle, put that first, and put what may be attractive politically to the back. Thank you very much.

The Chair: That leaves a minute and a half per caucus. We begin with the government members.

Mr Guzzo: Gentlemen, thank you very much for being here. Mr Boxall, with regard to non-lawyer boards, just let me tell you that if you ask that question often enough, you're going to get responses of other suggestions, like the Senate, the House of Commons and the Ontario Legislature.

If I could address my question to you, Lawrence, because when I look at your letterhead, your name jumps out because you may be the only one here who does other than criminal defence work. You also handle matrimonial files as well as civil cases from time to time, and quite capably, I might add, and also on occasion immigration law. Am I right?

Mr Greenspon: I do David-and-Goliath work. I don't do a lot of family and immigration but I do civil and I'm usually on for the little guy.

Mr Guzzo: My position that I've enunciated here this morning, and often at caucus, but with the same reaction that I got from my friend Mr Kormos, is that since I'm spending Ontario government tax dollars, I am of the opinion that I shouldn't be spending $1 on a refugee person, a person who is a non-citizen, who has not paid taxes in Ontario, prior to looking after --

Mr Kormos: He's not being helpful, is he?

Mr Greenspon: I don't mean to cut you short, but we've got limited time. I can't answer for the immigration bar. I really think they should be before you. I don't do immigration work, to answer that question, but in fairness to you, it's a point and I'm not the person to try and answer it for you, unfortunately.

The Chair: We move to the official opposition.

Mr Patten: Gentlemen, it's good to see you here this morning. I appreciate your comments and I think you've cut to the chase of the overall issues.

I would make one exception. While I agree with the principle, in terms of the board, that there needs to be a balance, obviously there needs to be significant representation from the outside community, because I think that can carry to the board a dimension of perspectives that would be valuable.

You asked the question, were there other boards? The Ontario College of Teachers, for example, there was a big debate as to whether the teachers would have the majority of representatives on that particular board and they lost the day on it. I just throw out one example.

One question I'd like to ask that is stimulated by Mr Greenspon's comments is, what kinds of incentives other than the perpetual clamouring for resources might there be to engage law firms and reputable organizations in the legal field to participate, in the best sense of making a contribution to the community? Are there other things that need to be looked at?

Mr Greenspon: You mean from the criminal defence bar?

Mr Patten: I'm thinking in terms of whether there may be recognition to have the participation of firms, or lawyers themselves, to get involved in, as you say, representing those who have the least amount of resources.

Mr Greenspon: I'll give you an example of something that happens here in Ottawa. We have right now over 250 lawyers -- that's over 25% of one profession -- who have volunteered to work with the REACH organization that works with the disabled. There is no profession -- I put it on the record, I challenge the teachers, the engineers, the architects, the doctors, any one of them -- that is as involved and gets more involved and gives more of their time and expertise. There's no profession in this province that gives more than the lawyers and there's no profession that gets dumped on more.

What can you do to get lawyers more involved? I simply don't know. You know through your work in the community. The first thing we do, "Let's get the lawyers," and they're there; we're there and helping. The legal aid system is another way that criminal lawyers are giving, because when the bill comes out and they're allowed six hours, do you think they stop at six hours? They do 10, 12 and 14 hours on that case because they care.

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

Mr Kormos: Thank you kindly. I appreciate your input. I just want to refer to page 6, your comments on the budget, and issue what my colleague might call a caveat emptor. The fact is that the bill only provides in a statutory way guaranteed funding for three years for the clinic funding and for two years for the immigration refugee law funding. It doesn't have any statutory guarantee of global funding for the upcoming three years. In fact, all we've got is the Attorney General's promise. I don't purport to speak for you or, quite frankly, any other member of the bar, but after what the Attorney General did and said about the family support plan, I have a hard time believing him when he says something, when he makes a commitment.

What bothers me is that the government would, in subsections 65(5) and (6) respectively, statutorily guarantee stable funding for clinic programs for three years and statutorily guarantee stable funding for refugee law for two years, knowing full well it's going to get right out of the business of refugee law at the end of the two years because it's not mentioned anywhere else in terms of the mandate. That means that when there are cuts, the cuts are going to come first in the certificate programs, even though the bill also says it recognizes that the foundation for the supply or the provision of criminal and family services comes via the private members of the bar.

This bill, by the absence of its statutory guarantee of global funding on a stable basis, is the forewarning of a direct defunding of criminal and family services. When you look at what's there and what isn't there, the inevitable and irresistible conclusion is that criminal and family funding are going to be out the window. The only thing that's guaranteed is clinic funding.

Mr Boxall: That's an excellent point. Given that the bill comes from the department of the minister who has made the promise, one can only hope that he keeps the promise and proves it by putting it in the act.

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

Mr Boxall: Thank you for the opportunity.

The Chair: This committee will recess until 1220 or until the last presenter arrives.

The committee recessed from 1200 to 1208.

NATIONAL ASSOCIATION OF WOMEN AND THE LAW

The Chair: At this time I'll call upon our last presenter of today. If the representative of the National Association of Women and the Law could come forward, and identify yourself just prior to Hansard beginning. Thank you for coming. Just before you begin, yes, Mr Patten.

Mr Patten: There was another presenter.

The Chair: They've cancelled.

Mr Patten: All right.

The Chair: You may begin. Thank you.

Ms Lisa Addario: Thank you, Mr Chair. My name is Lisa Addario, and I'm representing the National Association of Women and the Law.

The National Association of Women and the Law is a national organization that works to promote the legal equality rights of women. We do so through research, public education and our advocacy law reform efforts. The membership of NAWL includes lawyers, law professors, law students and a variety of other individuals from a number of constituencies in our society, but the common ground that all of our members share is their interest in supporting an active pursuit of women's equality. Since its inception in 1975, NAWL has appeared before numerous standing committees at the federal and provincial level, task forces and royal commissions to advocate on such matters as violence against women, income security issues, custody and access, health law, the intersection of race, gender and the law, and criminal law.

I thank the committee for hearing from our association today on this very important matter. For the last four years, NAWL has taken an active interest in the matter of access to the justice system for women and its inextricable link to legal aid. As a first principle, I would like to share with the committee that the legal aid system in Ontario, which was created in 1965, was the first of its kind in Canada and was established to rationalize a system that would provide low-income people with access to the justice system. In other words, legal aid was devised to prevent the evolution of a two-tiered system of justice, one for those who could pay and another for those who couldn't.

Now legal aid is at the crossroads and this committee is charged with overseeing the review of a bill which would reform legal aid services in Ontario. From reading the bill, it is clear that the legislation is designed with the companion goals of efficiency and quality of service in mind. Our association submits that although we must all be mindful as architects of a new legal aid scheme of the need and the desire to be fiscally conservative, a new legal aid scheme must also respond to and meet the legal needs of various segments of the public. It is our position, therefore, that the delivery of legal aid services in Ontario would benefit from a principled approach, and by that I mean one that takes into account the equality entitlements under the Canadian Charter of Rights and Freedoms.

With the remainder of my time I wish to focus on the importance of identifying and responding to the legal needs of women in particular as a diverse and distinct clientele of legal aid services. I say this because I believe it's impossible to devise an effective service without first taking into account women as a distinct constituency. I also say this bearing in mind the goal of efficiency, that good governance would suggest that legal aid services must respond to the demographic requirements of the clientele.

I'll give you an example: According to the National Council of Welfare, women are the poorer of the poor in our country, which is to say they make up the majority of poor people in our country, and older women are among the poorest of this subset. This would suggest a clear need for legal aid services that meet the needs of this group of clients, yet the current scheme of legal aid services in Ontario does not recognize or particularly respond to this constituency. The point it that old women don't need legal aid for custody and access, yet that is where the priority of the previous system of legal aid lay.

The legal problems of older women most often involve issues arising from decisions made on their behalf, either from the exercise of powers of attorney or arising from decisions pertaining to their health care. Older women also require legal information and advice to assist them in exercising their rights in respect of their tenancies at residential care services, their entitlements to long-term care in hospitals and to community care and, in the case of financial abuse, they require representation to recover property and finances that have been taken from them by individuals exercising their powers of attorney in an abusive and illegal manner.

There are other constituencies of women for whom it is neither practical nor culturally appropriate to leave a marriage and for whom custody and access coverage is similarly irrelevant. For many low-income women, particularly those who are in abusive relationships, legal aid services which would permit them to assume greater economic independence would be more useful. Legal aid for wrongful dismissal actions, for example, and to appeal decisions pertaining to eligibility for employment insurance, would be particularly meaningful.

For a large segment of our society, given that women's traditional role has been as unwaged workers and given their historical reality as the poorer of the poor, there is a need for widespread and easily accessible coverage for poverty-related legal problems such as social assistance appeals, landlord and tenant matters, workers' compensation matters and pension benefit entitlements. The discretion that has been given to the committee under this scheme is too broad to ensure that there is absolute coverage. What I'm advocating for is a minimum standard of entitlement for these kinds of matters.

These are the kinds of suggestions that lead us to recommend that a commission appointed under the new legal aid scheme should undertake extensive consultation to assess women's needs for legal aid services. I also recall that one of the background papers to the Ontario Legal Aid Review suggested the same thing. That was a background paper by Professor William Bogart, who identified that the legal aid needs of women as a clientele were very poorly understood at the time of his review. He also made the recommendation that there be extensive study undertaken before any new legal aid scheme was put into place.

The process of granting legal aid certificates should be more transparent. This province should collect and publish data pertaining to legal aid usage, the number of applications and the number of applications rejected, disaggregated on the basis of sex.

The province should also collect and publish data regarding the legal outcomes of cases in which the litigants are unrepresented to assess the effect of legal aid cutbacks. I believe this is particularly important given the provision in clause 14(1)(i), which includes, as a method of providing legal aid services, assistance to individuals representing themselves, including the provision of summary advice, assistance in preparing documents, information packages and self-help kits. I believe there is a place for this type of assistance, but at this point I don't believe it should extend any further than the realm of public legal education and outreach.

I believe it's incumbent on this government to undertake research on the effectiveness of such self-representation strategies before it proposes them as an alternative to legal representation. Self-help strategies would not be appropriate, for example, in cases in which the state is the opposing party and represented by counsel, as in the case of child apprehension cases and social assistance denials; nor would it be appropriate in cases where complex matters are at issue, as in the case of pension credit splitting on marriage breakdown, or in matters where expert evidence is being given. The complexity of the matters should be decided from the perspective of the client.

I think this committee will understand my point that introducing such a scheme without knowing what the consequences are for unrepresented litigants would violate principles of fundamental justice. What is critical in adversarial proceedings is that both parties are effectively represented and have the opportunity to participate in, not merely observe, what is taking place in the proceeding. This is the principle to which I submit this committee should give priority.

Quality of service requires equality before the law and in accordance with the principles of fundamental justice under the charter. Although the legislation that you're charged with overseeing cites the need for efficiency as well as equality, only equality has been elevated to the status of constitutional recognition.

With the remainder of my comments, I would like to address matters pertaining to accessibility of legal aid, financial eligibility and quality of service. I make these comments to support the recommendation that a preamble should be added to section 12 of the legislation, requiring the committee to take account of the need for improved accessibility, greater flexibility regarding determinations about financial eligibility and the need to improve quality of service.

This is what I base my comments on. In 1997, on behalf of the National Association of Women and the Law, I held focus groups with women in Toronto and in Manitoba to assess their experience with legal aid services from a perspective that took the diversity of their life experiences into account. What I mean by that is that I held focus groups in both provinces, in Toronto and throughout Manitoba, based on particular recognized constituencies of women: in Manitoba, for example, with urban aboriginal women, with single moms on social assistance and with rural women; in Toronto, I held focus groups with refugee and immigrant women, with older women living in poverty and with women who had experienced abuse. We asked women about their experiences with the accessibility of legal aid, financial eligibility and coverage criteria and the quality of the service they received.

What I'm going to present to you is an amalgam of the comments and the conclusions we drew from women in both provinces. Obviously, the women who spoke in Toronto have direct relevance, but I believe that the women who spoke in Manitoba have relevance too, because Manitoba is seen as having one of the most innovative legal aid schemes in the country, often held out as an example of where other legal aid schemes should go. I want this committee to be mindful of the fact that although certain of the comments that women make come from Manitoba, they have relevance to what pitfalls might lie ahead.

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The data we compiled confirmed that many of the women found the process of applying for legal aid quite confusing. For example, women did not understand the criteria used to assess their application for legal aid, and for some women, the feelings of discomfort that can accompany this experience can be insurmountable. This is what one woman said:

"Well, the legal aid lawyer comes in once a week. I asked if I could see him," and they said, 'What for?' I said, 'Well, it's concerning a driver's licence fine,' and they said, 'He doesn't deal with fine option in stuff like that.' I misunderstood her and said that was what it was for, but she didn't tell me I could come in and apply anyway or just talk to him about some kind of advice. At the time, I also wanted to get support from my baby's father and some kind of an agreement or something, but after I was turned down, I was hesitant to go again because I didn't want to be turned down again."

Another woman who had been refused legal aid four times for a refugee claim needed a lawyer just to persuade legal aid personnel of the strength of her claim. She said to us, "The lawyer worked on legal issues I didn't even know, so I guess that was the problem I had in the beginning. If I knew those legal issues, I could have told him, but she talked with me for a long time and I knew then that this case was a case that was good enough to win, but she said: 'Well, you didn't tell them. If we had known this, this and this, I don't think they would have turned you down.'"

The low tariff paid to family law lawyers who take legal aid certificates has also made the practice of serving legal aid clientele financially problematic. This means that many women cannot access legal counsel who are trained to understand and deal with the complexities and dynamics of abuse and are able to serve the abused client. Other women may not be able to find a lawyer who will take legal aid clients. In Ontario, many family law lawyers have stated that they can no longer meet their professional obligations to provide the best legal aid service possible within the unreasonable confines of reduced tariff limits. Not surprisingly, the result is a reduction in the number of family law lawyers willing to take legal aid certificates. Rural women found this to be a particular problem. They reported that most lawyers in smaller towns had stopped accepting legal aid cases, since it was not financially worthwhile.

Turning to the matter of coverage and financial eligibility, women in our study reported that the denial of coverage for certain legal problems severely hampered their ability to resolve their problems effectively. They identified considerable overlap in the personal, social and legal aspects of their problems, yet encountered bizarre and frustrating constraints on their ability to access legal aid for their legal matters. This is what one woman told us:

"One of the times I was asking for legal aid was for my furniture. I left in the night with nothing and I went to a shelter, and when I went back to the house he had stolen all the furniture out of the house and burned whatever he couldn't take, in the apartment, on the floor. And then when I had asked, I didn't have anywhere to live, I had no furniture, I had nothing, and legal aid just said, you know, they didn't take legal aid for personal stuff."

According to the 1997 annual report of the Ontario legal aid plan, the dramatic reductions in legal aid certificates have been devastating. To quote:

"The human cost of this decline in legal aid certificates has been staggering. People are going unrepresented in court in criminal and family law, they are now unrepresented in the preparation of complicated documents, and these unrepresented people in family law are predominantly women."

This committee has the opportunity to correct what has devolved about legal aid in Ontario, and certain of the recommendations that we're making to ensure some minimum standards around coverage and financial eligibility would correct this kind of situation.

Many women in our focus groups were not on social assistance when they tried to access legal aid; they were either working outside the home in low-paying jobs or working inside the home where there may have been joint assets in the marriage, but they didn't meet the financial criteria set by legal aid. Nonetheless, they found themselves unable to meet the financial demands of hiring private lawyers.

Women in our focus groups also indicated that the choices they were required to make as a result of their financial hardship essentially forced them into poverty to protect themselves and their children. What one woman said to us was: "I tried not to use legal aid, and many women knew it. Like, I even had no heat in my house. I was surviving and lots and lots of people knew it, social workers and different people, but you know, I was trying to pay for it myself. I was trying to survive and pay for it myself. That's what I was trying to do, and I did that until they cleaned me out."

With respect to the quality of service, women were asked about their perceptions of the quality of service they received. I want to be clear: Some women clearly had positive experiences with their lawyers and they felt tremendous relief when they received a lawyer. One woman in particular was facing an order to have her children apprehended and obtained a lawyer at the 11th hour.

The importance of training legal aid personnel to be respectful and to give a client's application full consideration was a major theme in our focus groups. Some participants found that legal aid personnel assessed their eligibility rather summarily. One legal aid personnel said to an applicant: "He basically told me right away they weren't even going to bother looking at my application, because what he said was: 'Well, I can see that you're dressed pretty well. Why are you applying for legal aid? You don't look to be the type to need legal aid, you know.'" The woman said: "That was really rude and ignorant because I had just left my husband. I didn't have the house, he had both vehicles, and I didn't have anything."

Abused women have been perceived by those offering legal aid services to be needy or difficult clients. The women in our focus groups in both provinces described the extent to which the relationship with their lawyers can be dysfunctional and outright abusive.

One paralegal who participated in our focus group observed: "Being yelled at by your lawyer is common. It seems a very common thing. You get insulted, put down and yelled at. Now, I'm not saying that all lawyers do this, but I have noted that it's a lot higher than I ever thought it would get."

Women were clear about what legal aid provided them. "Without legal aid, I wouldn't be here to tell my story now. It's a blessing to get legal aid because from then on, when my lawyer took it on, things moved faster. I actually got the decision on the same day, in less than three hours, because the board was able to hear me out."

At the same time, though, women had such negative experiences with the justice system and were so unable to cope that they felt they would have been better off if there were alternative solutions. What one woman said to us was, "I want to tell you that most older women don't know when they're being abused, but the second thing is that when I lived for 14 years with all of the lawyers and the legal aid and the running to court and the whole bit they have you going in, what I was unable to do was nurture my children."

What I would also suggest to the committee is that what that person would be unable to do is represent herself effectively. Bearing that in mind, I have great concern about the prospect of self-help kits and self-representation being a viable alternative for people who need to represent themselves in court.

The Chair: Just so you know, you have less than a minute remaining.

Ms Addario: Let me proceed to the summary of principles, then, that I would like to see as a minimum standard incorporated into this bill.

The process of determining legal aid applications needs to be transparent.

The recommendation from the Canadian Bar Association for the creation of a national civil legal aid tariff should be implemented.

Legal aid personnel should monitor the ability in all communities, rural as well as urban, to access their lawyers.

Women's legal aid needs should be addressed by services that don't arbitrarily divide up their life experiences. For example, women who are fleeing abusive relationships require legal aid to be able to recover their property.

Legal aid administrators responsible for assessing financial eligibility should take into account that women have only nominal ownership of assets in some cases, and if financial abuse is present, women are not likely to have access to those assets at all.

Lawyers and legal aid personnel should receive training to provide more effective, sensitive service to the diverse communities of women, including abused women, multicultural communities and women with disabilities.

The final point I would like to make -- and with the committee's indulgence, I'll probably take a minute more than what you've given me -- is that I note that there's no definition for "family law" in the legislation. I would urge this committee to give "family law" a definition that is as broad as possible to be able to provide the numbers of low-income women in our society with legal representation.

Finally, the definition of "clinic law" does not include law reform efforts, and it's only from the law reform efforts in our community that we've had the legal aid system that has been considered to be the finest in North America. I'd like to encourage the committee to include a definition that includes law reform efforts.

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

Just so the committee knows, prior to rising today, the committee begins at 10:20 tomorrow morning. With that, this committee rises until tomorrow morning in Toronto.

The committee adjourned at 1230.