All posts by warzinn

Legal aid doing its bit

The following letter to the editor appeared in slightly shorter form in the Toronto Star on June 29.

Re: CAS study reveals stark racial disparities for blacks, aboriginals

Legal Aid Ontario (LAO) applauds the Toronto Star for calling attention to the overrepresentation of children who are Aboriginal or Black in the child protection system.

While the numbers reported in the media are stark, we need to do far more than collect and bemoan child welfare statistics. As part of LAO’s Aboriginal Justice Strategy, we have noted the overrepresentation of Aboriginal children taken into care by child protection agencies and supported the community by providing funding for a child protection alternative dispute resolution program in the north.

And now, as part of a recently launched project aimed at enhancing services for racialized communities we are hearing that similar issues are being experienced in particular by Black families.

When LAO decided to increase its coverage for certain legal issues last June, for instance, we made sure to add more coverage for families involved in child protection cases. This means parents and caregivers can hire a lawyer to give them advice when they are being investigated by child protection agencies, and where appropriate, help them negotiate agreements rather than fight out their family’s problems in family court. Likewise, caregivers in children’s families such as grandparents, aunts, uncles and siblings are now eligible for legal aid. They can hire a lawyer to help them keep their children in the care of their extended family or home community.

We applaud the Ontario Association of Children’s Aid Societies for implementing programs to collect information throughout Ontario about the race of families under investigation and the treatment of Aboriginal and racialized children. We hope that other participants in the justice and child welfare system also take action and provide practical support to all of Ontario’s children and their families.

— David Field, President and CEO, Legal Aid Ontario

Upholding the right to follow Anishinaabe law

In 2015, LAO supported Andrew Kingbird’s Aboriginal rights defence when he was charged with not having a life jacket on his motorboat. He sought to have the charge dismissed because the law infringed on his Aboriginal right to travel on the water for ceremonial purposes.

In keeping with the tradition of his people, and on the instruction of his Elder, Mr. Kingbird was collecting items for a shaking tent ceremony. Mr. Kingbird only carried with him what was necessary when he was on Rainy Lake, following specific guidance on how best to practice traditional mindfulness and respect while traveling upon the water for ceremonial purposes. This included clearing his boat of all items that would detract from this spiritual practice.

Under the law, however, there were no exceptions when it came to possessing a personal floatation device on board a vessel.

There have been several other similar instances where people were charged and convicted because they didn’t have the legal support to defend themselves.The issues raised in this case have a broad impact in the First Nation, Métis and Inuit communities—which aligns with the mandate of LAO’s Aboriginal Justice Strategy to improve legal services for Aboriginal people.

Quotes

“I grew up watching my Elders practicing their traditions, including the instruction not to carry unnecessary items with them while travelling upon nibi (water) for spiritual reasons.

When I embarked on my first fast, or vision quest, I was told that when I went out on nibi I should take nothing with me, except for the clothes on my back, my tobacco, my pipe, and other sacred items. This allowed me to be close to the spirits of the land and water, to the Creator itself.

My authority and knowledge as an Elder is founded upon my experience of intimacy with the Creator, and all my teachings flow from this foundation. This is why I guided Andrew Kingbird, and why I continue to guide others, to develop this closeness by being on the land, and travelling on nibi, unencumbered by things, possessions, tools, or conveniences that are not necessary to, and even interfere with, the purpose of their journeys.

In this case, Anishinaabe law was upheld. In the future, the OPP and MNR should consult with Aboriginal law-holders and include traditional laws and aboriginal practices as part of their investigation before proceeding with any charges.”

— Elder PaShawOneeBinace Ralph Johnson

LAO statement on the Truth & Reconciliation Commission’s Final Report

Legal Aid Ontario’s (LAO) President and CEO, David Field, issued the following statement regarding the final report of the Truth and Reconciliation Commission:

As National Aboriginal Day approaches next week, on behalf of LAO, I want to thank the Truth and Reconciliation Commission, particularly the survivors who shared their stories. The report highlights the continued disenfranchisement of First Nation, Métis and Inuit, which has contributed to the overrepresentation of Aboriginal peoples in both the criminal justice and child welfare systems.

LAO also commends the Government of Ontario for its apology and commitment to closing gaps, removing barriers and creating a culturally relevant and responsive justice system.

Like the Ontario government, LAO is committed to working with Aboriginal communities and the provincial and federal governments to implement the Commission’s 94 Calls to Action, particularly those addressed to the justice community.

LAO will continue to build upon its Aboriginal Justice Strategy to address key elements in the report. Most recently, LAO has focused on providing additional and improved Gladue services, sustainable funding and support for community-driven alternatives to traditional court proceedings, and educational and cultural opportunities for staff.

True reconciliation can only happen through reflection, action, and partnership with First Nation, Métis and Inuit communities. LAO will continue to work in this manner, embracing the spirit of the report.

David Field,
President and CEO
Legal Aid Ontario

Questions

For more information please contact aboriginalstrategy@lao.on.ca.

mhs-infographic-featured_en

Infographic: National addictions awareness week

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Infographic: National addictions awareness week

  • 1 in 5 Canadians experiences a mental health or addiction problem in any given year.
  • Addiction is a treatable chronic health condition that affects individuals, families and communities.
  • 3 times to 4 times more likely for Canadians in the lowest income group to report poor to fair mental health than those in the highest income group.
  • Because of negative attitudes and stereotypes, people with addictions face challenges when renting a home.
  • $5 billion: Estimated annual cost in Ontario of alcohol-related health care, law enforcement, corrections, lost productivity, and other problems.
  • Individuals with a mental illness are much less likely to be employed.
  • Seemingly minor legal issues can trigger greater problems.
  • A history of police contact or offences creates a barrier to employment, supportive housing and treatment programs, travel, and education.
  • Drug treatment courts in Canada began as a response to large numbers of offenders being incarcerated for drug-related offences and continuing to re-offend due to underlying drug dependency.
  • December 1998: The first drug treatment court was established in Toronto, bringing together the criminal justice system and treatment services more effectively with drug-addicted offenders.

Legal Aid Ontario’s Mental Health Strategy

  • Expanded legal eligibility and coverage for people with mental health and addiction issues.
  • Lawyers can help with guardianship disputes, challenge health care decisions made by substitute decision makers, and step in to represent someone with no prior criminal record.
  • Direct referrals to local mental health and addiction services when calling LAO.
  • Expansion of face-to-face legal services at familiar community settings like community health centres, drop-ins and shelters.
  • Mental health training program to help specialists gain a better understanding of promoting, protecting and expanding patient rights.

http://legalaid.on.ca/mhs

Sources: Canadian Centre on Substance Abuse; Centre for Addiction and Mental Health; Ontario Human Rights Commission; Department of Justice

DVS

Why LAO needs a domestic violence strategy

Over the last couple of years, there’s been more and more of a media spotlight on the continuing severity and prevalence of domestic violence in Canada.

Over at Legal Aid Ontario (LAO), we first committed to prioritizing services for those who have experienced domestic violence in 2002. Since then, we developed guidelines for all front line and intake staff to appropriately screen LAO applicants, and we also have begun domestic violence awareness training.

But more needs to be done.

Clients and their intersecting legal needs

Those of us in the legal community commonly see domestic violence cases where one or both parties involved in a family law proceeding is also charged criminally with a domestic violence offence.

According to a 2013 provincial study by the Department of Justice, it’s estimated that, in about 10.7 per cent of family law cases, there’s also a domestic violence criminal proceeding happening at the same time.

In such cases, the matters are more complex and challenging for both criminal and family lawyers. Both sets of lawyers have to keep in mind that what they take to advance their clients’ interests in one set of proceedings might undermine the rights of their client in the other forum.

Let’s look at the case of Anne*, who was routinely physically and verbally abused by her husband, Frank. One day, in a heated argument, Anne tried to defend herself. When a neighbour called the police, they charged Anne with assault.

A non-contact bail order might hurt Anne’s ongoing efforts in family court to gain custody of her children, and it’s easy to understand why she might not want to call the police again. For people like Anne, there’s a real fear of the legal consequences with respect to custody, access and support. They may also fear that reporting the abuse may also lead them to being cross-charged with a domestic violence assault offence.

Challenges are also heightened when there’s a threat to an immigration or refugee status.

Let’s look at Farah’s situation: Farah has conditional resident status and, as a result, must live with her Canadian husband, Omar, for two years before obtaining permanent residency. Despite the fact that Omar is physically, verbally and financially abusing Farah, she is reluctant to leave. Sponsorship obligations and fear of deportation may keep her from reporting domestic violence—and it may make her uncertain about whether she can leave an abusive partner without facing immigration or refugee consequences.

There are also many intersecting needs between child protection matters and domestic violence. Research by the Ontario Association of Children’s Aid Societies shows that in 30 to 60 per cent of homes where domestic violence occurs, children are also abused.

Too often, major legal issues create secondary legal consequences. For example, a custody and access matter may trigger legal issues related to income security and housing or an individual’s ability to access legal representation.

Developing a strategy

As LAO begins to develop a domestic violence strategy, particular attention will be paid to the specific needs of clients who have experienced or are experiencing domestic violence.

Such a strategy would enable us to:

  • better identify complex intersecting legal needs and ensure that clients can access a range of services like housing support, counselling, and transportation services
  • expand access to legal services
  • develop processes that reflect a better understanding of how domestic violence impacts a client’s experience in the legal system
  • provide better supports to service providers, including community organizations, lawyers, community clinics and other agencies and;
  • create a sustainable plan to ensure LAO staff are educated on how domestic violence impacts clients

Getting input

Our starting point with the domestic violence strategy was to take a look at LAO’s services through the lens of a client who has experienced or is experiencing domestic violence. We’ll explore this in an upcoming post.

In the meantime, this summer, we’re holding consultation sessions across the province because we want input and feedback from domestic violence survivors, shelter workers, and justice and social service partners.

We really want to hear from you about your experiences in the justice system. (Confidentiality will be respected.)

If you can’t make it out to an in-person session, you can read our discussion paper, Development of a Domestic Violence Strategy, and email us at dvs@lao.on.ca with your thoughts and feedback.

*Not their real names. All personal examples in this post are based on composites of client experiences. LAO prioritizes client confidentiality, and only publishes client names and experiences when the client has provided consent, in writing.

Celebrate National Aboriginal Day on June 21, 2015

Legal Aid Ontario (LAO) encourages everyone to celebrate National Aboriginal Day on June 21. Learn about local First Nation, Métis and Inuit communities and their unique heritage, cultures and contributions to Ontario cultures by participating in the many events hosted by towns and cities.

Canadians have celebrated National Aboriginal Day, part of National Aboriginal Awareness month, since it was proclaimed by former Governor-General Romeo LeBlanc in 1996. Aboriginal organizations and the federal government chose the summer solstice to celebrate First Nation, Métis and Inuit cultures because it is the longest day of the year.

This year, Canadians recognize the history and resilience of Aboriginal communities  with the release of the report on residential schools by the Truth and Reconciliation Commission of Canada. The report’s 94 recommendations redress the tragic legacy of those schools and commits to changes that could make National Aboriginal Day more joyous through the years.

LAO is committed to recognizing the importance and uniqueness of First Nation, Métis and Inuit across Ontario. Through its Aboriginal Justice Strategy, the organization aims to achieve measurable improvements to legal aid services for Aboriginal peoples.

For more information please contact aboriginalstrategy@lao.on.ca.

Gladue Reports: not just a sentencing report

By Chad Kicknosway

1. v. Gladue, [1999] 1 S.C.R. 688

The Supreme Court of Canada’s decision in R. v. Gladue is a significant recognition of the position of Aboriginal offenders in the Canadian criminal justice system. It is well known to those working within the criminal justice system that Aboriginals are overrepresented. The Supreme Court indicated in their decision that it “may reasonably be termed a crisis.”[1]

The essence of the decision was the Court’s interpretation of section 718.2(e) of the Criminal Code of Canada. The Court determined that “it is reasonable to assume that Parliament, in singling out [A]boriginal offenders for distinct sentencing treatment in s. 718.2(e), intended to attempt to redress” overrepresentation and over-incarceration of Aboriginal offenders.[2]

Essentially, the decision requires sentencing judges to consider the unique systemic factors that may have brought a particular Aboriginal offender before the courts and to consider all possible alternatives to imprisonment for Aboriginal offenders even if those alternatives do not have a cultural component.

Birth of the Gladue report

Sentencing judges need to make informed decisions, drawing on sources of information that might not normally be before the court. The Supreme Court suggested that “for each particular offence and offender it may be that some evidence will be required in order to assist the sentencing judge in arriving at a fit sentence.”[3] It further suggested that “special attention in pre‑sentence reports” be given where an Aboriginal offender is present.[4]

While many pre-sentence reports incorporated Gladue factors, a problem surfaced where many Aboriginal offenders who have experienced racism, discrimination, poverty, family dysfunction and addictions were not comfortable discussing those issues with a stranger – especially where one is non-Aboriginal and working for the criminal justice system.

The Aboriginal Peoples Court in Toronto paved the way for making space for courts to adduce personal information and experiences of Aboriginal offenders. This is done by way of a report. These reports, which give extra attention to the unique systemic factors of an Aboriginal offender, have been referred to as a Gladue report and received support from the Ontario Court of Appeal.[5] Gladue reports are now available in a number of courts across Ontario through Aboriginal Legal Services of Toronto (see below for more information).

Not just a sentencing report

A Gladue report is made available, in general, when an Aboriginal offender pleads guilty or is found guilty. It serves two purposes: first, it highlights the unique systemic factors that may have brought a particular Aboriginal offender before the court. Second, it provides information regarding community-based rehabilitation that may or may not be culturally appropriate.

Some of the unique systemic factors include impacts of residential school, child welfare involvement, dislocation, substance abuse and discrimination just to name a few. Each report is unique as it reflects an Aboriginal offender’s life experience. Some of these factors may run deep into an Aboriginal offender’s life and may have caused them to cope negatively by way of substance abuse, for example.

Based on the information collected and after discovering and/or determining an Aboriginal offender’s underlying issues, a Gladue caseworker is able to suggest culturally appropriate (where available) programming to assist in rehabilitation. This is made by way of recommendation for the court’s consideration when crafting an appropriate sentence.

For the most part, Gladue reports have been authored by an Aboriginal. An Aboriginal report writer has a better understanding of the unique circumstances faced by Aboriginal people and, more often than not, shares those experiences in common with the Aboriginal offender. This generally allows a report writer to build rapport with an Aboriginal offender quite quickly.

Positive benefits of Gladue reports

There are many positive benefits of having a Gladue report available during sentencing. One of the more obvious benefits of having a Gladue report completed is that it provides an opportunity for an Aboriginal offender to address issues that may have contributed to them being in the criminal justice system. For many Aboriginal offenders, they have not been provided an opportunity to utilise resources and support to help them on their healing journey. In most instances, Aboriginal offenders have commented that they have received abrupt treatment by the criminal justice system which has led to incarceration rather than exploring alternatives of meaningful rehabilitation. Allowing for rehabilitation provides an opportunity to reduce the number of Aboriginals being incarcerated.

One of the underlying benefits not seen by the criminal justice system is the therapeutic process of having a Gladue report completed. Many Aboriginal offenders have not been provided an opportunity to explain who they are or, in most instances, never had an opportunity to self-reflect on the individual they have become. A Gladue report provides an opportunity for self-reflection. When identifying or discovering personal issues, a Gladue caseworker is able to assure the Aboriginal offender that there are resources and supports available to assist in dealing with those issues. Many Aboriginal offenders comment that they did not know such services even existed.

From this perspective, a Gladue report is not just a sentencing report. It serves as a holistic approach that often begins the first step in an Aboriginal offender’s healing journey.

[1] R. v. Gladue, [1999] 1 S.C.R. 688 at para 64.

[1] Ibid.

[1] Ibid at para 83.

[1] Ibid at para 84.

[1] R. v. Kakekagamick, [2006] O.J. No. 1449; 69 W.C.B. (2d) 157 (C.A.).

Additional information

Aboriginal Legal Services of Toronto (ALST) prepares Gladue reports for Aboriginal persons in the following courts: Barrie, Brantford, Guelph, Hamilton, Kitchener-Waterloo, Lindsay, Oshawa, Ottawa, Peterborough, Sarnia and Toronto (and other surrounding locations subject to approval). To request a report, visit ALST’s website www.aboriginallegal.ca or call 1-416-408-3967.

Chad Kicknosway is Ojibway and a graduate of law. He is currently a Gladue caseworker with Aboriginal Legal Services of Toronto and has been authoring Gladue reports for the past four years.

 

 

 

 

 

 

 

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The “I Do Care” project

by Colleen Gray

The Office of the Provincial Advocate for Children and Youth (OPACY) works with young people in the child welfare, youth justice custody settings, or children’s mental health systems.

We have tracked calls from young people about their health rights, who have indicated that they are denied personal health and treatment information, feel coerced into unwanted treatment, have limited to no involvement in treatment decisions, are unable to access desired health and treatment services, and experience difficulty advocating for health rights. These issues are compounded by the care systems as young people report that they are often presumed incapable of making or informing decisions, have several layers of caregivers, live in residential care and may be disconnected from natural advocates, families and communities.

“I Do Care” project

OPACY created the “I Do Care” project to respond to the problems raised by young people.

We held seven interactive youth groups across the province, worked with an advisory group of young people to guide the project, set up a social media presence, and created on-line surveys for youth and service providers. Young people told us that while they often do not know their health rights, their health rights are very important to them. We also heard from the caregivers and service providers that they, too, are unclear as to the health rights of children in their care. Other barriers they identified were fears of harm to young people, concerns that young people don’t understand health decisions, and worries of complicating the process if children are involved.

Educating young people

The Ultimate Health Rights Survival Guide, a newly released, 80-page manual, is one result of this work. Through it, we hope to educate young people in care and service providers about the health rights of young people. We have also taken the next step and given some practical tools to establish great practice and to help both youth and service providers take on the responsibility of realizing these rights.

Ultimately, we hope that using this book creates better understanding for young people of what is happening with their health, greater control over their lives, better decision making and stronger relationships with supportive adults.

Our materials are all available to the public. Our blog features guest blogs from young people and from professionals, including the following topics:

  • decision making
  • emergency secure treatment
  • consent and capacity
  • rights of people with disabilities
  • supported decision making

We have short booklets and a series of 10 fact sheets for children and youth. Both are available in English and French, on our website and in print.

Printed copies of The Ultimate Health Rights Survival Guide can be ordered from the office, by calling 416-325-5669 or 1-800-263-2841 or by email at advocacy@provincialadvocate.on.ca.

Colleen Gray is a Child and Youth Advocate for the Office of the Provincial Advocate for Children and Youth.

Hand drumming to restore community harmony

By Lyndon George

Within most traditional Native American cultures, the drum is the primary musical instrument. It serves many purposes within the areas of justice, entertainment and healing. The drum is used at most traditional native ceremonies including powwows and other prominent festivities.

Through any court proceedings, healing circles or other traditional ways of restorative justice, the drum and songs are used to support and give strength to the individual and the families. Drums are a part of traditional cultural practice to restore harmony to the community. The drum and songs are also typically combined with traditional use of medicines.

Knowledge leads to harmony

The making of the drum, how it is played and the function it serves varies from one native community to the other. But the hands-on experience of creating a drum always involves a process of learning to respect where the materials of the drum have come from, and our connection spiritually with everything.

I was very pleased to welcome participants from Legal Aid Ontario, as well as members of the public, to my hand drum-making workshop last fall.

For Legal Aid Ontario staff who work with Aboriginal clients, attending workshops to learn cultural traditions like drum-making gives them hands-on knowledge of the importance of spirituality for Aboriginal people. Through the experience of learning to create their own hand drums, staff members were opened to this healing and essential knowledge that will equip them to work in harmony with Aboriginal people. I am pleased to be able to offer these workshops. They give everyone in our community the chance to have this form of experience. It is difficult to come by it otherwise.

The heartbeat of the Earth

Within most traditional communities, the beat of the drum represents the heartbeat of the earth and serves to remind people of their connection to the earth and all that is within and around it. The drum often serves as a medium to bring all life into balance with one another.

It is not known when the drum first became a part of Native American culture, but the drum as a part of ritual, ceremony and daily life is extremely important.

Many drums for many purposes

There are many types of drums and each type of drum may serve a different purpose.

In October 2014, members of the Hamilton Community Legal Clinic, Legal Aid Ontario and a few others participated in the making of their own hand drums. The hand drum is usually a hoop drum and has a head of rawhide from one animal or another. In this case, the rawhide was that from sheep.

The hand/hoop drum is typically anywhere from 7 inches (17.78 cm) to 28 inches (71.12 cm) wide and the head of the drum might be decorated with various symbols, signs or colours that reflect or tell a story of the individual using the drum.

These drums are played by people in times of festivals, events, ceremonies or to call upon others to come together. In most designs, these drums are held by a rawhide handle on the lacing at the back of the drum and either played with the palm of the hand or with a beater.

The Awakening Ceremony

In 2015, the makers of the drums will be called back together and will bring their drums. A celebration will take place which will include a feast. This will be the Awakening Ceremony of the drum. The makers of the drums will learn, once more, of their responsibility as a drum keeper.

The drums, according to Aboriginal culture, are gifts from the Creator that we accept as caretakers.

 Please note: Native American is the preferred cultural identification of some southern communities as they do not refer to themselves as First Nation

Lyndon George is leader of the YÉN:TENE (you and I will go there together) initiative at the Hamilton Community Legal Clinic. In collaboration with local Aboriginal agencies and networks, the Hamilton Community Legal Clinic is committed to providing culturally respectful and appropriate legal services to Aboriginal clients. The main purpose of YÉN:TENE is to improve access to justice for Aboriginal people in Hamilton and its surrounding communities. Lyndon is an Ojibway member of the Kettle and Stoney Point First Nations.

 

Social Innovation to Enhance Access to Justice for Client with Mental Health & Addictions

A presentation at the Annual Addictions & Mental Health Conference, Toronto, May 26 2014

Innovation often starts at the local level, with the direct service provider identifying a gap or barrier in service and then sets about finding a creative way to address the issue.  In Halton Region, Halton Community Legal Services’ Executive Director Colleen Sym did just that.

She and her staff were acutely aware that their clients, particularly from vulnerable populations, often found their way to the clinic in the eleventh hour where there was little the clinic could do to assist, often because there was no time left to engage in the legal process.  In response, Colleen applied for project funding through Legal Aid Ontario’s (LAO’s) Innovations Fund to explore the development of a Legal Health Checklist that would assist clients and other service providers in identifying legal issues before they become a crisis, asking questions about their everyday problems.

The objective is to identify the issues early and connect the clients to the appropriate social service supports in hopes of avoiding a legal crisis down the road.   The tool is being piloted at the local level.

LAO is interested in exploring upstream, holistic, and integrated service delivery models.  LAO is identifying promising practices and working with clinics to support transformation at the local, regional, and provincial level.

LAO is identifying promising practices, evaluating funding applications and working with clinics to support transformation at the local, regional, and provincial level.

The Halton initiative has significant potential to strengthen the triage, referral, and ongoing capacities of clinics. LAO has funded the Halton project to expand their initiative.  This project involves developing a mobile device platform for the checklist that can be used by other clinics in the southwest region.

Jayne Mallin, Senior Counsel, Clinic Transformation, looks at some transformation initiatives through a social innovation framework which allows LAO to look at an innovation that has been tried and scale it up through a rigorous prototyping, testing, and evaluation of the model Expanding local successes is a great way to strengthen the capacity of legal clinics across the province.

LAO is in the process of developing its’ Mental Health Strategy. When Policy Counsel, Ryan Fritsch, heard about the Legal Health Checklist while he was out in the community consulting with stakeholders engaged with people with mental health issues, he was intrigued.

The Legal Health Checklist could assist LAO across other service areas. The checklist was of particular interest because of the upstream model and emphasis on partnerships in the community.  Innovative service delivery models are important. With legal professionals acknowledging the need for broader networks working together, there can be broader support for vulnerable populations such as those living with mental illness.

The three lawyers, presented their thoughts to the Ontario Mental Health and Addictions conference in May, where they illustrated the benefits of a local innovation scaling up to build capacity for a network of clinics, and then scaling up across the broader legal aid system.

Links to Prezi presentations: