Report of the Deputy Minister Advisory Panel on Criminal Legal Aid

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Introduction

Under Canada’s federal system, responsibility for criminal justice is shared between the federal government, under its authority for criminal law-making and criminal procedure, and the provincial and territorial governments, under their authority for the administration of justice (criminal prosecutions in the territories are a federal responsibility).  Given these respective constitutional authorities, both levels of government work together to ensure that Canada has an accessible, efficient and fair system of justice, and that public confidence in the justice system is maintained.

Criminal legal aid helps to ensure that the criminal justice system functions both effectively and efficiently for all participants, whether they be accused (i.e. by preventing wrongful convictions and supporting fair process), victims or witnesses (i.e. with timely justice, faster resolutions and reduced delays), police and prosecutors (i.e. by promoting early case resolution or case management, fair process and increased likelihood of case resolution), or courts (through speedier case resolution, fewer trials and reducing delays caused by self represented or unrepresented accused).

“Criminal legal aid is publicly-funded legal assistance for economically disadvantaged adults and youth who meet eligibility requirements, accused of serious criminal offences and at risk of incarceration. It is central to access to justice as it ensures equality before the law, right to counsel and the right to a fair trial .”

Federal/Provincial/Territorial
Permanent Working Group on Legal Aid 2011

Criminal legal aid supports Canada’s international obligations respecting access to justice, particularly as it relates to economically disadvantaged and marginalized populations across the country, and reflects the values of Canadian society.^{Footnote 1} It helps to ensure that economically disadvantaged accused have access to a proportionate range of legal services, including information, advice and representation, regardless of where they live in Canada.  Thus, programs must meet the distinct service delivery challenges that exist across Canada’s northern, remote and rural regions.  In such locations these challenges include significant language barriers,^{Footnote 2} lack of communications infrastructure, such as effective internet and telephone services and the fact that in many places, legal aid lawyers are the only source of legal support, as private bar lawyers are limited. Meeting these challenges is complicated by the fact that many of the communities in remote and rural regions are accessible only by air.^{Footnote 3}

Increasing fiscal constraints for federal, provincial and territorial governments, combined with growing public demand for improved transparency and accountability with respect to government spending, have lead to both levels of government reviewing their respective programs and services with a view to creating efficiencies, reducing costs and improving services to better meet the needs of clients.  As noted by the federal Treasury Board Minister following the release of the Auditor General’s 2013 Spring Report: "[the] Government is committed to providing effective and efficient programs and services to Canadians.  We share the Auditor General's commitment to sound, accountable management of tax dollars and we will continue to take action to improve services and the quality of life for all Canadians."

In light of stable federal funding levels for certain initiatives, like criminal legal aid, and a government-wide focus to increase efficiencies, reduce costs and improve services to better meet the needs of Canadians, several federal government initiatives have been undertaken to address issues related to the need for stable housing and wrap-around services for homeless persons with mental health problems, and the need for effective and efficient delivery of police services.  These and other related initiatives are of direct relevance to the delivery of criminal legal aid.

It is in this context that the Department of Justice Canada launched the federal criminal legal aid study.  This report, prepared on behalf of the Deputy Minister Advisory Panel on Criminal Legal Aid for the Department of Justice Canada’s Deputy Minister, reflects the Panel discussions and advice with respect to further progress on the federal criminal legal aid study.

Federal Criminal Legal Aid Study

In October 2013, the Department of Justice Canada launched the federal criminal legal aid study.  The objective of this study was to explore and identify innovations, best practices and efficiencies in criminal legal aid which could contribute to maximizing the federal investment in criminal legal aid and help to ensure that Canada’s justice system remains accessible, efficient and fair, particularly for economically disadvantaged Canadians.

In this first phase of the federal study, two key components were identified: the research and the establishment of a Deputy Minister Advisory Panel on Criminal Legal Aid.

Research

As a first step towards identifying innovations, best practices and efficiencies in criminal legal aid, and to identify baseline information and inform subsequent discussions, the Department undertook an environmental scan of criminal legal aid services, both domestically and internationally.  The research was conducted by an independent research company and consisted of an initial literature review, supplemented by key informant interviews.  This literature review enabled the Department to gather existing information about criminal legal aid services generally and innovations, best practices, and efficiencies, more specifically, as provided by legal aid plans in Canada and legal aid service providers internationally.

“Regarding the research on innovations and best practices, there is great value in the exercise of collecting and sharing information.”

Mr. Allan Seckel

Deputy Minister Advisory Panel on Criminal Legal Aid

The Deputy Minister Advisory Panel on Criminal Legal Aid (the Panel) was established with the mandate to advise the federal Deputy Minister of Justice on innovations, best practices and efficiencies that would contribute to maximizing the federal investment in criminal legal aid.  Established in October 2013, the Panel consisted of a cross-section of six eminent experts across the health, economic and justice sectors (see Annex 1).  Each member of the Panel contributed unique experiences and, as a result, an eclectic perspective to the discussions unfolded.

From October 2013 to May 2014, the Panel participated in five meetings including one full-day meeting.^{Footnote 4}While the primary objective of the Panel was to provide the Deputy Minister with advice and input respecting innovations, best practices, and efficiencies in criminal legal aid that could contribute to maximizing the federal investment, the Panel also contributed to the analyses and assessment of the research findings.

Moving Foward

Context

The Panel deliberated and developed advice for the Deputy Minister that would contribute towards a departmental strategy for maximizing the federal investment in criminal legal aid within the following context:

• Momentum is building for justice system reform, both at the federal and provincial/territorial levels, in order to address the lack of system coordination and to increase efficiencies.
• There is an increasing and significant focus on access to justice, at the federal level (e.g. Public Safety Canada’s economics of policing initiative) and nationally (e.g. Canadian Bar Association’s Reaching Equal Justice report and the work of the National Action Committee on Access to Justice in Civil and Family Matters).   A common theme across these initiatives is improving access to justice through justice system efficiencies.
• Legal aid needs must be understood as part of a larger network of services (i.e. comprising a mix of approaches to assistance) available to Canadians and therefore has a limited and targeted role in providing access to justice (i.e. legal representation assistance when required).
• As innovations are explored, it is important to consider whether there is sufficient capacity and momentum in the current legal aid system to encourage innovation.
• The legal aid discourse needs to change focus.  It must shift from ‘more funding is required’ to ‘what can we do to improve the legal aid system’?
• Is there sufficient momentum in the criminal legal aid system to make significant changes for the future 10 years (i.e. to sustain legal aid systems)?
• As the Federal Government returns to balanced budgets, there is mounting pressure to examine ways in which the Federal Government will spend surplus dollars.  It, therefore, can be expected that momentum will continue to build in terms of accessing any potential surplus resources.
• The level of legal aid funding will continue to be debated.  As the Federal Government moves towards renewal of federal funding for criminal legal aid, there is a need to explore ways that momentum can be built.

“Where legal aid plans can collaborate, good things can happen. We must look at a long-term process of a legal aid system that must be sustained through thick and thin… people may not like legal aid until it’s gone.”

Mr. Bob Ward

Development of Advice by the Deputy Minister Advisory Panel on Criminal Legal Aid

The Panel was informed by research (the compendium of innovations, best practices and efficiencies in criminal legal aid both domestically and internationally), and by the expertise of the respective Panel members.  The results of the Panel deliberations are summarized under four broad categories:  the need for greater performance information, promising practices, underlying challenges in the system, and similarities between the health care and criminal legal aid systems.  These findings formulate the basis from which the Panel advised the Deputy Minister with respect to a path forward for maximizing the federal investment in criminal legal aid. 

Need for Greater Performance Information

A recurring concern expressed during the Panel meetings, was the inherent need for more performance information to better understand the delivery of criminal legal aid in Canada, how federal resources are being spent, and the impact of criminal legal aid from an access to justice perspective. The Panel agreed that, particularly in light of increased accountabilities and the need for transparency in government spending, improved performance measurement and reporting in criminal legal aid (i.e. data/metrics, systematic measurement of outcomes, a common indicators of success) is critical not only to the renewal of funding for services but, as well, to identifying and addressing program gaps and needs.

“This isn’t just about criminal legal aid – this is about helping indigent persons take advantage of government services.”

Mr. John Wiersema

Promising Practices

As was evidenced by the research, legal aid plans are continually exploring ways to improve services and increase access to justice. The provision of criminal legal aid allows for optimum availability of resources for clients to ensure a good outcome. However, it was also noted that making innovation funding available (as was the case in the United States to promote pro bono services) was viewed as being extremely successful. Innovation funding requires significant collaboration with other parts of the system.

“The strategy in the US was to move away from discussion on the lack of resources to one on innovation.”

Mr. Richard Zorza

Underlying Challenges in the System

Considerable discussion among the Panel focused on the need for change and change management. It was remarked that there are essentially two types of change and change management, namely change to improve, and change to save money. Law offices, and legal aid offices alike, need to operate in a more efficient way to better address the needs of specific groups of clients. The challenge is to encourage people to affect change in a fundamental way to ensure that they have appropriate assistance (“no wrong door”) to address their broader needs (e.g. need for mental health services, need for housing).

The Panel noted the need to focus on high users of the system and to design community specific responses to better address the particular needs of certain groups (accused with mental health issues, those with drug addiction problems, and Aboriginal people). Of particular importance was the need to be mindful about the unique differences in the delivery of criminal justice in the North (access to communities is often more difficult and costly, limited availability of other services, more costly delivery). Community dynamics differ based on demographic make-up, including accused with mental health issues, Aboriginal and visible minority populations. As a result there is a need to re-invent parts of the justice system to respond to the needs of these communities.

Similarities between the Health Care and Criminal Legal Aid Systems

An important consideration throughout the Panel discussions, which significantly influenced the Panel’s advice to the Deputy Minister, was the similarities between the health care and criminal legal aid systems. Panel discussions revealed that there were several commonalities between the health care and criminal legal aid systems including: strong stakeholders (doctors/lawyers); challenges associated with employing metrics; complexity of the delivery systems; and, the perception that government is an insurance company (health insurance/legal aid).

“As in health care, once you define what you are trying to improve performance in then you can define what it is you want – action plans, metrics, targets.”

Dr. Jack Kitts

With respect to moving forward in the area of criminal legal aid, the Panel agreed that:

• As in health care reform, leadership, goals, performance measurement, public reporting on a common set of performance metrics, and audit assurances must all be addressed.
• As legal aid and access to justice may not capture the public’s attention, it may be necessary to think about concrete problems (e.g. chronic offenders) and target communities with respect to innovation to generate public attention and support. Segmenting the community (e.g. chronic offenders, Aboriginal offenders, offenders with mental health problems, offenders from minority communities) to focus on particular needs may be a positive approach to take.
• As was demonstrated in health care reform, money is not always the answer. Cooperation and collaboration can offer promising synergies (e.g. diabetes care in the BC health care system has been successful due to the willingness of players to come together to resolve a problem).
• While caution needs to be exercised, there are still good lessons to be learned from health care reform that can be applied to criminal legal aid (e.g. improvements in surgical wait times).

Advice to The Deputy Minister by the Advisory Panel on Criminal Legal Aid

A Strategic Framework for Maximizing the Federal Investment in Criminal Legal Aid

Goal

More fair, effective and efficient justice system for economically disadvantaged Canadians

Description

This diagram shows five overlapping ovals, increasing in size from left to right. The first oval, on the far left, is labelled Client, the second oval is labelled Services for Clients, the third oval is labelled Legal Aid Plans, the fourth oval is labelled Criminal Justice System (including prosecution services) and the fifth oval is labelled Integrated Services. This diagram is intended to depict an integrated strategy for improving the delivery of legal aid services to Canadians that focuses on the client and in which the various components of the justice system, including legal aid, work collaboratively to support the access to justice needs of Canadians.

Strategy

Improve the Client & Provider Experience and the Quality of Service

• Triage (where & when)
• Early identification of needs
• Increase service provider capacity

Measure and Manage Performance

• Information & data
• Standards

Enhance Leadership & Innovation

• Federal-provincial-territorial affairs
• Incentives to collaborate
• Technology infrastructure
• Laboratories (i.e. research/pilot projects)

Inspired by the health care reform experience, based on the research findings, and drawing upon the results of the Panel discussions, the advice to the Deputy Minister consisted of the development of a strategy that responded to the goal of a “more fair, effective and efficient justice system for economically disadvantaged Canadians”.

Panel members determined that the strategy should focus on three key elements: Improve client and provider experience and quality of service; Measure and manage performance; and Enhance leadership and innovation.  It was further determined that the four pillars – accessibility, efficiency, effectiveness and accountability should serve as the tools by which to measure success.

Improve the client and provider experience and the quality of service

The criminal justice system deals with individuals whose problems may never be resolved (e.g. chronic drug addicts). There is a tendency not to triage those individuals resulting in everyone being put into the same costly system. Triaging identifies the most appropriate actions to be taken given the individual and their specific circumstances.

Through legal aid lawyers, more training and information can be provided with the goal of delivering a better client service experience. The legal aid lawyer must have the capacity to deliver services to clients in the best possible way. At the same time, a conversation needs to be had with regards to meeting the client’s other needs in a more holistic manner (mental health, substance abuse, poverty, homelessness).

While the research on innovations, best practices and efficiencies in legal aid demonstrates an increasing trend towards a more client-centered approach to legal aid service delivery (e.g. partnership in therapeutic courts, holistic defence, identification of unique client needs through specialized services), there is still room for improvement. Central to access to justice, is the need to identify the needs of clients early in the process in order to meet client and public safety expectations. Indeed, there may be times when early triage into appropriate services may avoid the criminal justice process entirely, with better results for both public safety and the offender. The service provider (i.e. the legal aid lawyer) is critical to improving the client experience and the quality of service provided.

Measure and manage performance

There is minimal hard data available (e.g. management information) on criminal legal aid. 

The Panel remarked that because legal aid funds used to financially compensate lawyers for services provided are “public funds”, it is critical to convey the value of these funds so that there is public accountability and interest in how funds are expended.

While the Panel acknowledged the availability of aggregate metrics (e.g. those provided through the annual Statistics Canada Legal Aid Survey), they noted such data is difficult to understand and does not necessarily tell a story that will resonate with either the public or government officials.  A more compelling story is often the story of victims and families and the impact that the criminal justice system has on them. 

The research found that while some legal aid plans are further along with respect to performance measurement and evaluation to determine effectiveness and efficiency, there remains little performance data.  The research cited many reasons, notably struggles with:

• how to measure work within their own system (e.g. counting legal aid certificates versus legal cases)
• recording accurate data (e.g. quantifying duty counsel assists)
• resource restraints which limit analyses and reporting
• justice system data, while important for measuring outcomes, are often not available or are of variable quality
• the absence of integrated measures across legal aid and the criminal justice system to enable broader system-wide understanding of how performances intersect.

In identifying the need to focus on performance management and measurement, the Panel highlighted the importance of investing in information systems and identifying metrics.

Enhance leadership and innovation

The Panel discussed the need for both cultural change and creating a culture of innovation. There was considerable discussion with regards to approaches to changing the existing culture and to supporting innovation in the criminal justice system. The following approaches were explored:

• Collaboration training – It cannot be assumed that everyone knows how to collaborate.  People need appropriate training if specific objectives are expected.
• Corporate ownership – It is important to create a sense of ownership and think about how cultural change can occur in the organization. 
• Creating a culture of commitment to innovation – There is no dispute that everyone cares about the individual client as well as how legal aid services fits into the context of the larger criminal justice system.  Communicating with service providers supports and builds on cultural change (e.g. the development of databases like those used in the Neighborhood Defender Service of Harlem^{Footnote 5}, makes information transparent and accessible to all players in the system: Judges; Crown; defence; police). 
• Increased use of technology –Opportunities exist to use the increasing availability of technology (e.g. mapping software).  It may be easier to innovate through new technology than through other areas.  Technology can be used to enhance quality and, if well deployed, can provide criminal justice system players with the right tools (e.g. providing defence counsel with the necessary information can improve the quality of defence services for clients).  Legal aid plans can provide technological platforms by making available all the information defence counsel need to build a strong defence.

The Panel remarked that the criminal justice and legal aid systems are incredibly conservative institutions and therefore the challenge is to create a culture of innovation in which risk-taking is promoted; failure is not punished; and, incentives for innovation are real and permanent and not short-term.

The Panel acknowledged that modernization and reform of criminal legal aid to better respond to the needs of clients requires leadership. Given the shared responsibility for criminal legal aid, it was agreed that both the federal and provincial/territorial governments need to continue collaborating on the way forward.

The Panel noted that most systems innovate under pressure. This may be the result of looking for standards rather than best practices. Systemic innovation is important. Innovation is very helpful across legal aid plans and there is great value in the collection and subsequent sharing of information (e.g. the compendium of innovations and best practices in criminal legal aid that has been prepared).

It was agreed that focusing on innovation in criminal legal aid would be a solid approach to advancing discussions with stakeholders from those that are centered on the lack of resources to innovations themselves. The Panel agreed that critical to this is the need to engage front-line stakeholders to support the development of innovations. The basis for this engagement relies on the fact that quality of services can improve and costs can be lowered.

“Responsibility for legal aid is shared by federal, provincial and territorial governments. Consequently, the strong leadership we require should also be a shared responsibility. While we can disagree on the funding levels, when it comes to the need to support innovation and find better ways to deliver legal aid services, there can be no disagreement.”

Mr. Gerald Tegart

Conclusion

This report concludes the work of the Deputy Minister Advisory Panel on Criminal Legal Aid. Over eight months, the Panel deliberations, supported by the research, made a significant and rich contribution to the Department of Justice Canada’s work on how to maximize the federal investment in criminal legal aid through innovations, best practices and efficiencies.

Most notably, the work of the Panel has highlighted the importance of criminal legal aid as a public service and, as such, the need for services to be client focused and for results to be measureable.

The Department will proceed to consult internally and externally on the Panel’s advice and continue to develop a more detailed framework that is in keeping with federal priorities.  The research findings, the Panel deliberations, and the advice of the Panel will be used by the Department of Justice Canada to further inform the next steps of the federal study including identifying research gaps, consultations, and concrete actions which may be undertaken.

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