Thank you, Madam Chair. I wish to present a motion to the committee.
I move that subclause 6(1) of Bill 5 be deleted and the following substituted under the term “Appointment.”
6.
(1)
The Commissioner, on the joint recommendation of the Minister and the Commission, shall appoint an Executive Director, who must be either
(a) a lawyer; or
(b) a person with significant management
and financial experience.
The motion is being distributed. The motion is in order. To the motion. Mr. Dolynny.
Thank you, Madam Chair. I appreciate committee and colleagues for allowing me to bring this motion to the House. This debate occurred much before we are speaking to it today, so I appreciate bringing it here today.
This was by far the most contentious and most debated amendment to the proposed Legal Aid Act, and for good reason, as the premise of having the executive director being a non-lawyer has shaken the foundation of stagnant thinking. Many may ask, why should one care to challenge this concept? What is the point? The answer is simple: We are here to listen to the people and to create the most modern and useful legislation for the betterment of people and by the people. As the Minister indicated, we may not be revisiting this legislation for another 10 years.
During the public hearings on this act, the committee received a submission holding a lens to the concept that it was not necessary for the executive director to be a lawyer. Upon extensive review and with legal counsel the following advantages to this claim were substantiated.
The first observation with the position of the executive director in itself was a position of significant skill set and mastery of organizational excellence. In the broader sense, many potentially good managers would be screened out by the requirement of being a lawyer. I can assure everyone here today that this troubled many committee members.
Second, this position could be tied to more of an administrative role and less confined to legalistic thinking as the act already makes provisions in paragraphs 6(3)(d) of Bill 5, which reads, “The Executive Director may (d) delegate any of his or her duties to a staff member.” This in itself would relieve the so-called requirement of the executive director to actually have to practice law, and thus further supports this premise.
Third, the legislation could be permissive, allowing but not restricting the executive director to be a lawyer. Again, the intention of the and/or clause is to modernize this act and accepting what we are seeing in other jurisdictions across Canada. I will note the Minister may try, in good measure, to give compelling arguments that the circumstances with other provinces cannot be compared due to the size and caseload difference, but in reality, many committee members believe these arguments to be mute.
Finally, the duties of the executive director requiring legal input could be delegated to a commission staff lawyer or legal advisor to the commission as is seen in other jurisdictions. Many committee members are satisfied with this statement and it has been confirmed by our legal counsel. Evidence is found throughout the act which this delegation authority would be of sound acceptance within the framework of the act.
Of course, you’re going to hear the Minister or his designate repudiate the concept of a non-lawyer executive director with the suggestion that this will require huge costs to legal aid to administer such change, that this expense will be taken away from clients’ needs, and that the executive director requires to be a lawyer to fulfill a myriad of other operational functions. Again, taken in the narrowest of context within the act, yes, the Minister may have limited merits, but we are talking about change and with change comes fear, and we should not fear and cloud our decision-making through fear.
Again, we are attempting to change the thinking that has been enshrined for over 33 years and, yes, change is difficult to swallow. However, we need to think about opening the doors of opportunity with the inclusion of this option and/or clause to allow inclusive behaviour to the act and not rubberstamp exclusive thinking. As a government, we need to lead by example, and by not allowing inclusion of a non-lawyer executive director clearly breeds contempt for the very concept we’re trying to uphold, which is openness and justice to the people.
I will be seeking, hopefully, Madam Chair, support from my fellow colleagues to this motion.
Thank you, Mr. Dolynny. To the motion. Mr. Bouchard.
Thank you, Madam Chair. I will not be supporting this motion. The department has given us the justification of why this position needs to be a lawyer and the clause opens us up to potential difficulties in hiring this position. When we’re looking to hire the position there may be opportunities, if there are no lawyers, that the people with lesser qualifications could fulfill this position, but in essence, the department has indicated that there are legal issues that this position does and is responsible for. Then if we don’t have a lawyer in that position, there will be additional costs to the system to hire a lawyer to do that person’s job.
Currently, the way it’s set up, that person is a lawyer and that work is being done in-house on that salary, so I’m concerned. It’s not a matter of not listening to the people; it’s a matter of qualifications and we’re setting the minimums that we have. We have a minimum qualification for this position. In a lot of professional industries where doctors of whoever cannot do certain items, cannot do certain things because there’s a minimum criteria for the safety, for the public’s concern, that’s where I feel that we need to make sure that this position remains a lawyer.
I understand where my colleagues are coming from in the way of wanting to have flexibility. I’m usually the first person to justify flexibility, but when you’re talking about the law, sometimes there’s a minimum requirement and flexibility is not an issue. The minimum qualifications are the issue here. I will not be supporting this motion.
Thank you, Mr. Bouchard. To the motion. Mr. Yakeleya.
Thank you, Madam Chair. Thank you, Mr. Dolynny, for bringing this motion to the floor for discussion. It speaks to a modernization and improvement of the justice that we have specific to the communities that I represent. This modernization bill here is 33 years old. The new way of thinking is to look at a motion that Mr. Dolynny has brought to the floor here. Either the commission works with the Minister and the commission works with the executive director who’s a lawyer or a person with significant management and financial experience. I think that’s the way to go.
I think that the Department of Justice, even through their justification, hasn’t swayed my heart to say yes, this is the way to go. That, for me, is narrow thinking. That, to me, is you’re locking in a system that we are so desperately trying to get out of, which is a colonial system that’s saying only certain people with certain qualifications. That, for me, shuts out a lot of applicants from my region who may have exceptional executive director skills and organization, and so the pool of applicants becomes very elite. There is a very, very small pool of people to choose from if we leave it to lawyers only. There are only a small number of people who would be able to qualify, and that discriminates against other people who may have exceptional skills as an executive director. That is almost saying that to the hospitals or the health boards, that if you have a doctor’s degree that you could also apply for an executive director with the doctor because you have medical skills and the business is of a medical nature and the doctors give advice to other doctors or nurses.
We’re going backwards on this bill here, on this specific clause, and for me, that is not good for our government. It’s one step, two steps forward and two or three steps backwards. We are leaving out, potentially, some very exceptional people who have really good managerial skills.
Madam Chair, not all lawyers make good managers. That’s something we need to look at. I believe that more flexibility needs to be adapted to the changing future circumstances of the law in the Northwest Territories, especially in our small communities. How many lawyers know what it’s like to manage justice in our communities? I just spoke to it earlier at the opening comments to the Minister of the legal aid that comes into our communities and they have a huge number of clients. Their work is incredible. But they spend five or 10 minutes with the client and then they go to the court. That is not justice. We need to have a really good system.
I ask the question to the Justice: Why are we limiting ourselves now? The job may require a lawyer but, potentially, the duties and focus of the job could change in the future. Mr. Dolynny said in 10 years from now we’re going to look at this bill again. That is incredible. That is outrageous. Why are we locking ourselves into the shackles of having the executive director be a lawyer? That doesn’t go good with me. Something’s not right. We’re supposed to modernize this here. As I said before, we are stepping back into a very narrow, fearful way of doing business with justice.
There are only a limited number of lawyers in the Northwest Territories. Why not let those lawyers actually practice law and help us, and not run organizations? Let them do what they’re trained to do. I think that’s the way to go. With this motion, it leaves an opening to the government. You never know. Maybe at the end of the day there might be a lawyer that has exceptional managerial skills and may want to be the executive director; maybe not. But right now this department here is shutting the door on future potential executive directors that may want to work in this field, who have a passion to help people, who have a passion to work with people in the communities. We are not giving them a chance. The Department of Justice should put up a sign outside their door: You need not apply if you aren’t a practicing lawyer, a law degree. Save us some time.
This motion here looks at modernization. It is a forward-thinking motion. It is a motion that supports the Northwest Territories. I’m very confused and very perplexed as to why the Department of Justice would corner itself with this executive director only to have to be a lawyer to work in that department. For me, we are taking a step back in this bill here with this type of legislation going forward. We are going to make a law. That is the scary part about it. I really don’t understand the department’s rationale. They have given us some information. It still hasn’t clicked inside me to say yes, this is the way we should be going. If we are going to do that, we’re sending a strong message right across the Northwest Territories. Then what’s next? Health? Education? All the different other jobs that are key to running a good functional government organization.
Legal Aid is an organization that helps a lot of people in our small communities and to only have it open only for lawyers is not right. Justice isn’t done here in this bill. Certainly justice has been denied to a lot of people. I’m going to support this motion 110 per cent. Thank you.
Thank you, Mr. Yakeleya. To the motion. Ms. Bisaro.
Thank you, Madam Chair. The debate that committee had and the work that committee did on this bill as a whole was really interesting. There were over 10 amendments made by committee to which the Minister, over time, concurred. We found middle ground on a couple of them, but, in general, there were some very good amendments that were made which made the act a better act.
This one particular amendment or change that was suggested at committee was hotly contested. We had quite a good debate around the whole issue. Committee was split; we could not agree. I think the opening remarks by the deputy chair indicated that. Therefore, it’s come to the floor of the House in an attempt to get the change made at this juncture.
I am not in support of the motion. I have gone back and forth. I’ve heard the arguments on both sides. But I think at this point in time, the size of our jurisdiction, the size of our legal aid office is such that we do not need to hire a lawyer if we hire an executive director who is not a lawyer. I think the financial implications are such that it would be a negative impact and I prefer to leave the act as it is for the time being.
It’s interesting that Mr. Yakeleya suggests that a review in 10 years is a bad thing. I see the fact that we are required to review this act in 10 years as a good thing. I think, at that time, our circumstances may be such that we can make this change.
That said, basically the arguments on the part of the Minister have convinced me that we should leave the act as it is. So that’s where I’m at. I will not support the amendment. Thank you, Madam Chair.
Thank you, Ms. Bisaro. To the motion. Mr. Abernethy.
Thank you, Madam Chair. I appreciate the intent of this motion to create flexibility within the Legal Services Board when it comes to hiring an executive director. However, I do have to say that there are a number of compelling reasons that the executive director should be a lawyer. The bottom line is, if that non-lawyer is recruited as an executive director, a senior lawyer would have to be hired to perform those functions that the executive director is required to provide as a result of this legislation. At a time when federal contributions to the Legal Aid Program are frozen, we cannot afford to spend more money on the administration of the legal aid office.
Right now, under the proposed legislation, there is a commission which consists of people from over the Northwest Territories who are providing direction to the legal aid office, which has the executive director and some admin staff. They are responsible for the administration of services across the territory, and then there’s a whole bunch of legal aid lawyers who are employees of the GNWT, who are out providing the front-line work that Member Yakeleya has described.
We need to make sure that there is a legal presence within that administrative office so that they can do proper reviews of the legislative work and the legal work that the staff lawyers and the public lawyers are doing. If you take the requirement for the executive director away to be a lawyer, you’re still going to have to insert another layer of administration, which is going to have to be a lawyer that is going to do the work that the executive director currently does.
Given that we do have a flat line of revenue or money coming from the federal government, increasing the cost of administration is only going to take away from the provision of legal aid in the Northwest Territories. Someone doing the legal work in the administrative office of the commission of what is now the board, a lawyer would probably be evaluated around pay range 22, which means it’s going to be $150,000 to $160,000 on top of what we are already spending. Given that recently in the last budget process we were asked to put more money into legal aid so that we can have more front-line lawyers, it seems complicated or counterproductive to put another layer of management in the administrative office when what we really need to do is get more lawyers in the front end providing work.
I would like to thank the standing committee for its careful and very productive review of Bill 5. Eleven motions were brought that amended the bill in committee. I was happy to concur in those motions because, in my opinion and in the opinions of others, they actually are really good and improved the bill and they are directed towards enhancing the delivery of services to residents of the Northwest Territories. Our objective is to improve access to justice, and those motions help accomplish that goal.
This motion, I’m afraid, moves in the opposite direction. It is intended to increase flexibility, which I understand, but its ultimate result will be to require an expensive new lawyer of the administration at the cost of the front-line delivery of justice services.
It is difficult to determine precisely what portion of the executive director’s work involves the practice of law, but the present executive director and her predecessor estimate that it takes up to one-third of their working time. So there would have to be a creation of a position to cover that one-third legal time. Some would argue, well then only create a one-third position and let the lawyer that you hire do front-end work. That might sound good, but we also have a situation where the legal work of the executive director is to review the work of the staff lawyers to make sure that it is legally sound. They do verifications, they provide advice. You can’t have a lawyer doing that to themselves. The executive director doesn’t provide the front-end legal work that the staff does, so you would have to create a full-time position to do that, because you wouldn’t be able to utilize them on the front end.
The proposed Legal Aid Act includes provisions that require the executive director to concur in legal advice and legal opinions prepared by the panel and staff of lawyers, and to test potential assignments to ensure the lawyer concerned would not be placed in conflict of interest. These functions require legal analysis and can only be performed properly by a practicing lawyer. If the executive director is not a lawyer, he or she will have to delegate these functions to a member of the staff who is a lawyer, as I have already described, which would be another layer in the administrative office of the commission.
The executive director works closely with judges, the public prosecution services and the RCMP. The executive director needs to appear in court on occasion, and he or she also sits on the Bench and Bar committees of the Territorial and Supreme Court. These committees are exclusively made up of judges and lawyers. If this position was not a lawyer, they would not be able to sit on our behalf in that capacity.
The executive director will be the commission’s delegate and will be responsible for the ongoing operation of four separate legal aid clinics. The executive director ensures that both staff and panel lawyers provide quality legal services to clients, and comply with the act and regulations, and adhere to the ethical and practice standards required by the Law Society and the Code of Conduct governing lawyers and by courts. If the executive director was not a lawyer, they could not do that. It would have to be delegated to the position that would have to be created under it. Once again, creating more administrative work, another administrative lawyer and not assisting the front-line delivery. The proposed Legal Aid Act only requires that one member of the new commission be a lawyer. The commission will rely heavily on the legal knowledge and the experience of the executive director.
To Mr. Yakeleya’s point, the commission will still be providing direction from the commission. The commission will consist of members from around the Northwest Territories who can provide direction to help find ways to improve the front-line delivery that the Member was talking about, but by taking the legal requirements for the executive director away, we would have to, once again, create a new layer of management, which would actually take money away from the front-line provision. I don’t believe this is what any of us want to do. I believe we want to enhance front-line delivery.
The present Legal Services Act requires that the executive director be a lawyer, and this has been the case since 1979. This isn’t something new that we’re trying to ram through today. This is consistent. I understand the desire for change, but we also have to ensure the integrity of the office. The Member mentioned earlier the public health officer. In the Northwest Territories the public health officer must be a doctor, they have to be a doctor. It’s not much different of a requirement for our executive director who is responsible for these legal services to be a lawyer.
The executive director in 11 of the 13 provinces and territories is a lawyer. The two jurisdictions with a non-lawyer executive director are New Brunswick and Newfoundland and Labrador. We don’t have the information from Newfoundland, but the executive director in New Brunswick is supported by two senior lawyers in head office, the first being the director of criminal law service and the second being the director of family law service. That’s kind of the model that I was explaining a couple of minutes ago, whereas if you have an executive director who is not a lawyer, you have to create a second level of management to provide those legal functions. In New Brunswick, they don’t have a lawyer so they have a separate branch, a separate level, which costs money to provide those services that our executive director does. I think that demonstrates that there would be additional costs to the government if we ended up with somebody who was not an executive director, which would take away from the front-line provision, which is what we believe we all want to support.
The executive director works closely with both staff and panel lawyers to monitor representation of clients. The lawyers are required to provide the executive director with legal opinions on the merit of applications for civil legal aid and on the merit of appeals in both criminal and civil matters. The executive director determines whether the application is approved, and in cases where legal opinion is rendered, he or she must carefully review that opinion. This requires that the executive director have the fundamental understanding of criminal and family law. If the person did not, if they were just a finance or a management employee, they would have to delegate those responsibilities to another layer of management within the organization; therefore, costing the administration of this particular service more money and taking away from the front line. Once again, we want to make sure that we’re enhancing the front line in support that we’re providing clients, not taking away, not duplicating services within the office.
The executive director cannot delegate the review of panel lawyers’ opinions to senior staff lawyers and legal aid clinics due to conflicts. Someone needs to be able to review legal opinions in the administrative head office, which is separate from our legal aid clinics. The executive director is the only lawyer in the administrative office. If this motion were to pass, we would have to have someone who is not a lawyer, but we would still have to create that secondary layer in the administrative office because that service would still need to be conducted.
Given the public nature of legal aid operations, the executive director must be able to respond to requests for information from the media while protecting the legal privilege of the services provided. Having the executive director mentor and supervise staff and panel lawyers provides a consistent, efficient and cost-effective approach. If Bill 5 is changed to make non-lawyers eligible for employment as the executive director, we’ll also have to change the job description to amend the present requirement for them to be a lawyer.
In the Government of the Northwest Territories, all positions are evaluated based on knowledge, problem solving, accountability, as well as working conditions. If you take the requirements for them to be a lawyer out, you would be affecting the evaluation position. It would likely go down, which means we wouldn’t be able to compensate the executive director coming in at the same level that we are compensating the current one, which might actually hinder our ability to get the high quality candidates that have been identified as the ones we would be seeking not being lawyers, but then we would also have to create the position below it, which we know would be a lawyer, and if you look at the evaluation of lawyers based on knowledge, problem-solving and accountability, we know that they’re all around pay range 22, which pays about $130,000 plus all the benefits. It would probably cost us about $160,000. So the executive director would go down a little bit, but we’d also have to create the position that would cost what lawyer’s cost, which is significant. So you’re definitely going to be increasing the cost of administration of justice in the Northwest Territories.
This could well lower and make it more difficult to find the high-calibre candidates for the executive director position that we’re talking about. Madam Chair, I’m out of time.
Thank you, Mr. Abernethy. Did you have anything to add to the 10 minutes that you’ve already taken to respond to the motion? Do you have anything else you’d like to say, because I do have the prerogative to grant you more time if you’d like.
Madam Chair, I was actually just coming to my last bullet. The bottom line is we understand the flexibility. We get that, but this jurisdiction isn’t a larger jurisdiction where there is significant capacity. Our budgets are incredibly limited in legal aid. We have very little money and that money is not increasing. The feds haven’t increased their contribution. They’re not going to increase the contribution, yet the costs continue to go up. Every time the costs go up and the federal contribution stays the same, that money has to come from the Government of the Northwest Territories. We know our budgets are limited. So if we create a secondary layer of administration regardless of the cost, that can only come from one place, and that comes from the front-line delivery. We believe that would be inappropriate. We want to focus on the front-line delivery.
In closing, there is a significant number of high-calibre lawyers out in the Northwest Territories currently, who have both administrative and legal skills. By way of example, our current acting executive director is an indigenous Aboriginal lawyer from the Northwest Territories, from the Beaufort-Delta, I believe, who has solid management skills. If we were to change this position so this person didn’t need to be to be an executive director, that person may not even be interested in the job if they don’t require a lawyer to do it. We would be losing. We have good-calibre people out there. We will continue to find good-calibre Northerners who are lawyers, who are interested in doing this work. So we don’t want to take that opportunity away as well.
In closing, we feel this motion is bad and we will be voting against it. Thank you, Madam Chair.
Thank you, Minister Abernethy. To the motion. Any final comments from the mover of the motion? Mr. Dolynny.
Thank you, Madam Chair. Thanks to the Minister for walking us through I think what we’ve already heard a number of times already. It was good to get that on the record. A good debate yields good dialogue, and hopefully today we can actually then do some wise decision-making from what we’ve heard here today.
