On Friday, LAO announced it’s developing a new strategy to improve legal aid services for people with mental-health issues. The goal is to build on current efforts, such as extra funding, clinic assistance, and duty counsel support, in order to help people in a more efficient, effective, and holistic manner.
“The board is enthusiastic about this important opportunity to work in consultation with our stakeholders to improve our services to clients,” says LAO chairman John McCamus.
Mental health is an issue that fairly regularly comes up for LAO and its clients. On July 19, for example, the Ontario Court of Appeal ruled in R. v. Szostak, a case that considered a defendant’s bid to seek new counsel over concerns the lawyer had put the accused’s mental health at issue before the court without his consent.
In Szostak, defendant Henryk Szostak had been facing charges of criminal harassment and uttering a death threat. While Ontario Court Justice David Fairgrieve found him not criminally responsible, Szostak challenged that finding and argued the evidence didn’t make out the offence of criminal harassment.
Szostak had obtained legal assistance through LAO. At the opening of his trial in 2007 and in Szostak’s absence, defence counsel raised the issue of his client’s fitness to stand trial. The trial ultimately went ahead, but Fairgrieve later found Szostak not criminally responsible on account of a mental disorder.
Among his reasons for appealing the decision, Szostak raised concerns over his application to LAO to change his defence counsel. LAO had refused to do so. But in its ruling earlier this month, the appeal court declined to allow the appeal on this ground.
“The fact that legal aid refused to grant the application did not prevent the appellant from discharging his counsel,” wrote appeal court justice Marc Rosenberg on behalf of a three-judge panel.
“From defence counsel’s point of view, there was no breakdown of the relationship. There is no evidence that the appellant attempted to discharge defence counsel. Over the many succeeding dates when the case was before the trial judge, the appellant never told the judge that he wanted to discharge defence counsel.”
In the end, the appeal court dismissed Szostak’s appeal.
For Michael Davies, an Ottawa lawyer at Foord Davies LLP who often deals with mental health law, what’s key is that LAO make a “genuine, open attempt to see what they can improve” as it launches its review.
Among his concerns are the continuation of the certificate system for mental health matters rather than some sort of public defender model and that LAO maintain discretion over the fees in such cases. While Davies says LAO has been good in the past at allowing for discretionary fees in complicated cases that take longer than anticipated, the ongoing movement towards block fees has changed that. Instead, he notes LAO is now offering an additional block fee to lawyers taking on clients with mental health issues, something that may not always reflect the amount of work necessary on the file.
For its part, beyond announcing work on a new strategy, LAO says it has recently posted a job for a new policy counsel to develop and implement what comes out of it.
“There are a high number of people with mental health issues involved in the various aspect of the justice system,” says LAO spokesman Kristian Justesen. “It is important that Legal Aid Ontario services are sensitive to the needs of this highly vulnerable client group.”