Jamie Maclaren, QC: “It is time to move beyond speculation and anecdotal information in redesigning legal aid services”

Over the past several years, much has been said about BC’s Legal Aid system ... much of it negative.  To the governments credit, it recently undertook an external review of Legal Aid Service Delivery in BC ... this by Jamie Maclaren, QC.

According to a media release from the Ministry of the Attorney General today, Maclaren’s report follows an external review and public engagement with legal aid users that was conducted in fall 2018. It includes 25 recommendations and identifies which parts of the current service delivery model are working and where investments and changes can be made to improve services for all British Columbians who use legal aid.

Legal aid services and systems were analyzed with the objective of determining if there were opportunities for better user outcomes, user experiences and system efficiencies. Maclaren’s review was informed by written submissions from the public, an online survey to lawyers and legal advocates, and personal consultations with legal aid stakeholders in B.C. and elsewhere in Canada.

From that report .... here are the words of Jamie Maclaren, QC:

Legal aid is not broken in BC. It has simply lost its way. Years of under-funding and shifting political priorities have taken their toll on the range and quality of legal aid services, and especially on the people who need them. Still, the will exists in BC to make legal aid more accessible and effective for all of its many users.

The Legal Services Society (LSS) is a high-functioning organization with some exceptional leaders. It has the knowledge and the space to improve the quality and accessibility of its services at current levels of funding.

Meaningful change, however, will only come with more government investment. My report provides 25 recommendations that identify where current legal aid service efficiencies can be found, and where and how effective new investments should be made.

My report focuses on legal aid service delivery from the perspective of the “legal aid user”: a composite entity that includes legal aid clients, lawyers and other service providers who frequently interact with LSS. My recommendations are informed by principles of user-centred design, evidence-based analysis, collaboration and experimentation. They are prioritized according to severity of need, ease of implementation and scalability.

It is time to move beyond speculation and anecdotal information in redesigning legal aid services. System reform should not be a linear process led by experts, but rather an iterative process involving continuous learning and adaptation that leads to improvement from the perspective of users. I have adopted this approach throughout my report, along with Access to Justice BC’s Triple Aim Framework, with its three core pursuits of better user outcomes, better user experiences and lower system costs.

You can read the full report by CLICKING HERE ... however the top recommendations, prepared in the report, are as follows.   

Please note that those I have highlighted in YELLOW, I believe, would definitely help to make the legal system fairer and more accessible for those needing legal aid, and legal assistance.

RECOMMENDATION 1 (PAGE 4)

Endorse the CBA’s National Benchmarks for Public Legal Assistance Systems in support of a user-centred, evidence-based and collaborative approach to legal aid service delivery. 

Inspiration: Australia’s National Partnership Agreement on Legal Assistance Services

Effective system reform requires stakeholders to work across organizational boundaries and extend their accountabilities outward to each other. The Canadian Bar Association’s National Benchmarks for Public Legal Assistance Systems provides an ideal framework for setting aspirational service standards for all Canadian governments and legal aid plans to meet.

The underlying principles of user-centred design, open and transparent measurement of system-wide progress, and inter-agency collaboration work particularly well in the BC context.

RECOMMENDATION 2 (PAGE 5)

Develop and implement cross-system methods for contemporaneous user feedback to promote user agency and to continuously assess and refine legal aid service delivery systems.

Until recently, the Canadian justice system paid little attention to how people prefer to engage with legal services, and what they seek from legal service providers. The user-design approach is commonly employed in the technology sector, and stands in contrast to the standard approach to legal service design, which prioritizes the perspectives of legal experts. User design promotes user agency, and can be used to deliver more responsive and effective legal aid services.

RECOMMENDATION 3 (PAGE 6)

Develop and launch an online client portal to accept legal aid applications, to diagnose and treat clients’ legal problems, and to empower clients in the active management of their own cases.

Inspiration: MyLawBC; BC Civil Resolution Tribunal’s Solution Explorer

Many legal aid users would benefit from a well-designed online client portal that could handle application intake, issue triage, problem solving by guided pathways, and active case management.

A single-entry point for legal aid services would allow applicants, legal advocates or other intermediaries to preload application information for quick and cost-efficient vetting by LSS staff. It would also enhance communication between clients and staff, and provide greater transparency to client service delivery.

RECOMMENDATION 4 (PAGE 7)

Task and support an independent body, like Access to Justice BC, the Access to Justice Center for Excellence or the Office of the Auditor General, to coordinate the collection and analysis of standardized performance data across BC’s justice system.

Inspiration: Quebec’s Accès au droit et à la justice

There is too little being done across Canada to coordinate the collection and analysis of justice system data. This stifles innovation and contributes to duplication of justice reform efforts. BC would benefit from an independent and overarching body that is mandated and resourced to coordinate the collection and analysis of standardized justice system data from across the province. The data could then be used to assess the individual and aggregate performance of justice sector organizations—like LSS, the BC Prosecution Service and the courts—against national benchmarks. 

This would cultivate greater transparency and accountability in measuring performance.

RECOMMENDATION 5 (PAGE 8)

Promote multidisciplinary and cost-sharing approaches to legal aid client problem resolution that attract a wide array of funds from government and non-government sources.

Isolated legal aid lawyers too often serve as one-person multidisciplinary service centres. They find themselves serving as untrained psychologists, social workers or settlement workers for their clients. When legal aid lawyers work in a team environment with other service professionals, the out-sized value of their work is better seen and appreciated. A multidisciplinary service approach also gives service partners the opportunity to share costs and diversify funding.

Co-located organizations can share infrastructure costs and find cost efficiencies from operating in a “one-stop shop” environment. They can also attract funds from a wide array of private and public sources, including from different government ministries.

RECOMMENDATION 6 (PAGE 10)

Develop and apply the same performance measures, including user experience and outcome data, across all models and aspects of the legal aid plan to compare model cost-effectiveness, to increase system transparency and accountability, and to better inform continuous system refinement.

My report recommends the experimental and scalable development of new staff and clinic models of legal aid service delivery to address current service gaps. It is important to compare the performance of these new service models against current service models by using common measures of productivity. It is equally important to incorporate user experience and outcome data into common measures of effectiveness.

RECOMMENDATION 7 (PAGE 17)

Introduce strategic, scalable and quasi-experimental iterations of staff and clinic models to fill legal aid service gaps, and to foster assistive competition between models.

Inspiration: Burnaby Public Defender Study; Manitoba Competitive Service Delivery Model

LSS’s current mixed model of service delivery tilts heavily toward the tariff model. A more balanced service delivery mix between the tariff model, the clinic model and the staff model would allow for distribution of legal aid cases among tariff, clinic or staff lawyers according to who is best suited to the task.

My report recommends the development of community legal clinics providing family law and poverty law services, specialty clinics, Indigenous Justice Centres, an experimental Criminal Law Office and a Major Case Team of lawyers and paralegals specializing in long and complex criminal cases.

Rebalancing the current mixed model to introduce mutually assistive competition between model types should lead to system cost savings and better client service.

RECOMMENDATION 8 (PAGE 25)

Amend the Legal Services Society Act to provide for the following framework for eleven director appointments:

• four appointments by the provincial government;

• four appointments by the Law Society of BC; and

• three appointments by frontline community service organizations, including two organizations specifically serving Indigenous people.

Inspiration: Legal Services Society Act pre-2002

The LSS board should be seen to be independent from government, and should reflect a balanced representation of the interests of government, the legal profession and the communities it serves. For community interests to be heard—and seen to be heard—the board should include space for the expertise and wisdom of people who represent Indigenous communities, women’s centres, anti-poverty groups, people with disabilities, mental health providers, immigrants and refugees, and other legal aid user groups.

RECOMMENDATION 9 (PAGE 26)

Engage the Office of the Auditor General to perform a value-for-money audit of LSS operations.

Inspiration: Office of the Auditor General of Ontario’s semi-regular audit of Legal Aid Ontario

Several review contributors mentioned LSS’s high administration costs and other cost inefficiencies. I was not equipped to determine whether their fiscal management practices are sound, although I saw no indication otherwise. The Office of the Auditor General of Ontario periodically conducts a value-for-money audit of Legal Aid Ontario. The BC government may wish to engage the Office of the Auditor General for a similar purpose.

RECOMMENDATION 10 (PAGE 28)

Support an external governance review of the provincial PLEI sector to establish clear organizational roles and accountabilities, and to streamline PLEI service delivery options from a legal aid user’s perspective.

RECOMMENDATION 11 (PAGE 30)

Create a Clinic Resource Centre within LSS to communicate with a new network of community legal clinics, to gather and dispense collective knowledge and expertise, to inform responsive development of PLEI (Public Legal Education and Information) materials, and to promote inter-agency awareness and collaboration.

Inspiration: Legal Aid Ontario’s Clinic Resource Office

RECOMMENDATION 12 (PAGE 36)

Broaden availability of expanded duty counsel and Family LawLINE services to improve access and convenience for working people and their families.

RECOMMENDATION 13 (PAGE 38)

Fund and support an integrated network of independent community legal clinics with modular teams of lawyers and advocates providing family law and poverty law services.

Inspiration: LSS’s former Community Law Offices; Legal Aid Ontario’s Community Legal Clinics

RECOMMENDATION 14 (PAGE 42)

Broaden the scope of Indigenous legal aid services to include more preventative services that are not premised on agreeing to state intervention or correction, which impose stigma.

RECOMMENDATION 15 (PAGE 43)

Create a Child Protection Clinic to help parents before child protection concerns have reached the level of Ministry of Children & Family Development intervention, and to serve as a practice resource centre for lawyers representing parents in contested child protection matters.

RECOMMENDATION 16 (PAGE 44)

Support the iterative and scalable development of Indigenous Justice Centres as culturally safe sites for holistic legal aid service to Indigenous people.

RECOMMENDATION 17 (PAGE 47)

Create and embed a Refugee Legal Clinic in the integrated services hub at the Immigrant Services Society of BC’s Welcome Centre in Vancouver or Surrey.

Inspiration: Legal Aid Ontario’s Refugee Law Offices

RECOMMENDATION 18 (PAGE 52)

Fund and support an integrated network of independent community legal aid clinics with teams of lawyers and advocates providing poverty law services.

Inspiration: LSS’s former Community Law Offices; Legal Aid Ontario’s Community Legal Clinics

RECOMMENDATION 19 (PAGE 52)

Develop and nurture a strategic network of specialty legal aid clinics to serve specific communities of legal need.

RECOMMENDATION 20 (PAGE 55)

Enhance LSS’s current non-trial resolution tariff, or develop a new discretionary tariff for case preparation that results in early resolution and avoids trial, based on a detailed account of the scope of preparation and its impact on settlement.

RECOMMENDATION 21 (PAGE 56)

Develop an LSS telephone complaint service and a quality assurance audit program, including enhanced user feedback and after-case peer review, to better assure the quality of lawyers’ services.

RECOMMENDATION 22 (PAGE 59)

Create an experimental Criminal Law Office along a major transit route in Metro Vancouver, with a team of criminal staff lawyers, paralegals, administrators and support workers providing general and specialized legal aid services.

Inspiration: Burnaby Public Defender Study

RECOMMENDATION 23 (PAGE 59)

Create a Criminal Resource Centre at the Criminal Law Office that offers free access to tariff lawyers, pro bono lawyers and other legal aid service providers, and provides space for co-working and training as well as resources for legal research and practice management.

RECOMMENDATION 24 (PAGE 62)

Develop a Major Case Team of LSS staff lawyers and paralegals to provide in-house capacity and to support tariff lawyer capacity for long and complex criminal case work.

RECOMMENDATION 25 (PAGE 65)

Collaborate with other justice system stakeholders, like the Law Foundation of BC, the Law Society of BC, the BC Branch of the Canadian Bar Association and other branches of government, to promote legal aid practice and reduce justice system costs and delay.

David Eby’s Attorney General’s Minister has stated that they will now carefully review the report and determine next steps.

Last October Attorney General Eby stated that, “… barriers facing access to justice cannot be overcome without a concerted and collaborative effort to create change”.

He then went on to say, “My ministry is working to ensure that everyone in B.C. experiences equal access to justice”.

This report, which is now in the hands of the Attorney General, will hopefully take those steps Eby spoke of. 

One however cannot help but be a bit skeptical.  I say that because too many reports, which have been recommended be undertaken, end up on dusty shelves once they have been completed and announced – often with great fanfare. 

Let’s see what becomes of this one.