A Seamless Approach to Service Delivery in Legal Aid: Fulfilling a Promise or Maintaining a Myth?

2. A Literature Review (cont'd)


2. A Literature Review (cont'd)

2.4 Legal Aid Today: The 'Old' is 'New' Again

There has been a resurgence of scholarship about legal aid and its potential in recent years, as government spending has resumed in small ways at least and a sense of concern about the social devastation left by restructuring is being felt in policy setting circles. In Ontario, for example, Osgoode Hall Law Professor John McCamus conducted a significant review which generated considerable research,[70] a pattern repeated in most provinces[71] at the federal level,[72] and in the United States.[73] However, Doug Ewart's piece for the McCamus review,[74] "Hard Caps; Hard Choices: A Systemic Model For Legal Aid" is one of the most important.

Ewart, writing in the context of budget cuts, constraint, and neo-liberal politics, suggests that framing the issues facing legal aid as the debate over what model is most cost effective: staff lawyer versus judicare versus pro bono models, is long over. Instead, he suggests that in a time of budgetary restraint,[75] legal aid needs to be redesigned "from the ground up" and offers five principles (at least two of which have real transformative potential) as guidance:

The first principle is that legal aid be funded and understood to be an integral part of the whole justice system: This suggested principle is the most radical of the five, and has real potential for bringing about progressive change. In criminal legal aid, for example, the cost of defence would be a line in a global budget that included investigations, prosecution and corrections. Savings in one area would be of use in others.[76] There are potentially other, even more significant, implications for such an approach. The cost, for example, of a wrongful conviction would be borne by all of the participants in the prosecution process - and not just the hapless defendant. The use of the most costly sanction - imprisonment - would have to be justified against the overall budget. The police practice of overcharging in order to increase the number of paid overtime days in court would be exposed and managed more effectively. The potential is obvious. Ewart's vison for civil and administrative services are limited to reforming the ways that civil disputes are resolved so that they become more "user friendly" and attentive to access to justice issues.[77] However, much more could be done, for example, by global budgeting adequate access to justice services into the costs of health, education and social services.

Principles two and three (a "deep appreciation of systemic bias", and, a "systemic approach to the choice of cases"[78]) set out what is in effect a revitalized statement of the need for a politically based case selection criterion, what Paul Tremblay and others refer to as [79]"triage".

The fourth principle refines the first three, by arguing that legal aid as a whole should represent a "systemic approach to delivering services" so that savings in the criminal field because bail is dealt with more effectively and economically can translate into strategic choices in regard to family law matters, for example.[80]

Finally, the fifth principle ("making the most effective use of skills") argues persuasively for an integrated, or "seamless" approach to the provision of services, utilizing a team approach which might include interpreters, social workers, health careworkers, community organizers as well as lawyers and legal workers.[81] Once again, Ewart uses criminal legal aid as his example, but the experience of clinics like Parkdale demonstrate how effective an integrated approach is in civil and administrative legal aid matters. Indeed, but for the idea of including the cost of access to justice as part of the cost of the legal and social justice apparatus generally, Ewart is setting out a model of a community legal clinic that is very like the ideal Parkdale has set for itself from its inception.