To the bill as a whole.

Does the committee agree that Bill 2 is ready for third reading?

Thank you. Bill 2 is now ready for third reading. Thank you, again, Minister Bell.

The next item on our agenda is Bill 3. I am going to turn you over to Mr. Ramsay for Bill 3.

Thank you, committee. I would now like to ask the Minister responsible for Bill 3, the honourable Minister Bell to introduce the bill, please. Mr. Bell.

Thank you, Mr. Chair. The purpose of this bill is to permit staff lawyers working out of different law clinics of the Legal Services Board to advise both parties in a legal matter without that being in and of itself a conflict of interest.

The Legal Services Board and department identified the need for this amendment in response to a diminishing private bar and increasing reliance on staff lawyers. This amendment is in place in other jurisdictions for the same reason: to ensure the provision of timely and quality legal service to clients. The Law Society, which regulates the legal profession in the Territories, is in support of this amendment.

In the long term, this amendment will allow to continue with, and expand if necessary, its complement of staff lawyers in order to ensure NWT residents have access to family and criminal law services, and that the court system remain accessible.

I would like to thank the Standing Committee on Social Programs for its consideration of this bill. I would be pleased to answer questions that the committee may have. Thank you, Mr. Chair.

Thank you, Minister Bell. I would now like to ask the Standing Committee on Social Programs for their comments. For that I will turn first to Mr. Braden. Sorry; Mr. Yakeleya.

Thank you, Mr. Chair. The Standing Committee on Social Programs met to review Bill 3, An Act to Amend the Legal Service Act, on April 19th and 20th and on May 8th in Yellowknife, on April 23rd in Tuktoyaktuk, and Inuvik and on April 24th in Ulukhaktok; on April 25th in

Colville Lake; on April 26th in Behchoko. The committee would like to thank the Minister and all the witnesses who spoke to the bill.

The committee heard from Ms. Katherine R. Peterson, a member of the private bar in Yellowknife. Ms. Peterson was very concerned that the proposed amendment would create a different or a lower standard of conflict of interest for lawyers employed by the legal aid system versus all other practising members of the legal profession. Ms. Peterson referred to the governing rules of the Canadian Bar Association Code of Professional Conduct that had been adopted by the NWT Law Society. She also pointed out that a legal aid program with many community law offices isn't included in the definition of "law firm" for the purposes of interpreting who, in the above mentioned code of conduct, should apply to.

She felt strongly that Bill 3 does not solve the conflict problem but rather exemplifies a conflict situation from consequences which would otherwise apply under the governing code. Recognizing the complexity of the issue at stake, for example, the access to justice questions and the government's intent to improve the clinical delivery model, she stated that if these different standards for conflict of interest are to be adopted, then the public and other legal aid counsels must have assurance that appropriate protocols, practice, guidelines and directions are in place that adequately protects the interests of clients and confidentiality of information. Mr. Chair, I would like to turn the report now over to Mr. Lafferty.

Mahsi, Mr. Yakeleya. Mr. Lafferty.

Mahsi, Mr. Chair. Mr. Chair, to continue on with the comments. Mr. Brad Enge, a lawyer in private practice from Yellowknife also made a presentation on April 19th expressing his concerns with the bill. He also pointed to the Professional Code of Conduct of the Canadian Bar Association and stated that the conflict of interest would exist regardless of the proposed amendments to the Legal Services Act.

Mr. Enge, like Ms. Peterson, referred to the definition of the law firm which includes legal aid. Furthermore, Mr. Enge made a reference to abundant case law dealing with the obligation of confidentiality, breach of fiduciary obligations and conflict of interest. Mr. Enge suggested two alternative initiatives that Justice could undertake in order to address existing challenges and pressures. One would be to start a recruitment and retention initiative for legal practitioners. The other would be to retain lawyers from neighbouring jurisdictions to avoid conflict when both parties access legal aid. If the bill is approved, he stated that stringent conditions and rules should be implemented internally to ensure that conduct and liability are respected.

In Tuktoyaktuk, Mr. James Pokiak expressed general concerns as a private citizen about fairness when accessing the legal aid system. He referred to the working poor who are just over the set eligible income limit and, therefore, would not qualify for legal aid nor be able to afford to retain legal counsel themselves.

Committee recognizes the challenges that the government and the Department of Justice are facing in terms of providing access to justice and timely legal services to the clients of the Legal Services Board. We believe that the government must take action to address this public interest matter. Committee also considered that the history of backlogs, existing trends and pressures have led to increased reliance on legal services clinics and staff lawyers. If at all possible, committee would prefer that at least one private practice lawyer would be retained in cases where both parties qualify for legal aid in order to avoid any possibility or appearance of conflict of interest. However, it is clear to committee that the private bar in the NWT presently does not have the capacity to address the needs of the legal aid system and that retaining private bar lawyers from other jurisdictions is not fiscally practical or responsible.

Committee also understands the need to address the concerns brought forward by the witnesses. On May 8, 2007, during the clause-by-clause review, the committee discussed these concerns with the Minister and the director of the Legal Services Board, Ms. Lucy Austin. Committee was satisfied with the assurance for protocols both the Minister and Ms. Austin gave. At this time, Mr. Chair, I'd like to hand over the comments to my colleague, Mr. Pokiak. Mahsi.

Mahsi, Mr. Lafferty. Mr. Pokiak.

Thank you, Mr. Chair, colleagues. Continuing on, the Minister indicated that prior to representing a client, counsel must provide full disclosure of their respective clients from the nature of that employment relationship including supervision by the same director and employment by the Legal Services Board, seek the client's acknowledgement, legal aid lawyers must come from two separate clinics and represent the two parties in one case. Administration of clinics are physically separated and access to files are separated.

Following the clause-by-clause review, a motion was carried to report Bill 3 to the Assembly as ready for Committee of the Whole. Mr. Chair, this concludes the committee's general comments on Bill 3. Individual committee members may have questions or comments as we proceed. Thank you, Mr. Chairman.

Thank you very much, Mr. Pokiak. I'd now like to ask the Minister if he could introduce his witness just for the record. Mr. Minister.

Thank you. We'll have Lucy Austin, who's the executive director of Legal Services Board, joining us and Mark Aitken, as well. Thank you.

Thank you, Mr. Minister. Sergeant-at-Arms, if you could escort the additional witness in. Thank you.

Welcome, Ms. Austin, Mr. Aitken, and Mr. Minister. I now open the floor to general comments on Bill 3. Ms. Lee.

Thank you, Mr. Chair. As you can see from the report of the committee which was prepared and delivered by the hardworking Social Programs committee...

...ever so conscientious, and we've done travels on this bill and others. You know, this bill is very interesting and it is trying to address the larger public

interest goal of making access to legal services and legal counsel more available to those residents in the NWT who qualify for legal aid. I think everybody is aware of the shortage of lawyers not only here but everywhere in Canada, and we have heard over the years about the serious backlog in family law files and criminal files, which are the other...Probably the criminal don't have as much of a waiting list as family files but, at any rate, we are very well aware of those backlogs and we understand that this is an effort to address those.

So that's the public interest question, but there's a very real issue that we are dealing with here and that is that in the process we don't want to create a situation where our legal aid lawyers may find themselves in any type of conflict of interest situation, whether by perception or actual, and we take those comments given to us by the private practitioners, lawyers, very seriously and, I believe, we have tried to address those in our committee hearing. It's also important for us to put that on record here so that we give assurance and comfort to the public that we have addressed them.

So I'd like to ask the Minister a couple of questions that were not addressed in much detail in any of the opening comments. That has to do with the fact that it is my understanding that the scenario being contemplated in this legislation where the legal aid office is presently allowed to, or they do practice, having two lawyers from the legal aid office representing both sides of a file; say, for example, in family law cases. So could I just get confirmation from the Minister or Ms. Austin that, in fact, this has been going on and it's been an accepted practice and that this legislation is trying to formalize that? Thank you.

Thank you, Ms. Lee. Mr. Minister.

That is correct. I want to make the point that we are talking about separate offices, not the same office. So physically separate offices, same employer; the Member is right. Thank you.

Thank you, Mr. Minister. Ms. Lee.

Thank you, Mr. Chairman. I understand that having separate offices is an important distinction, but the witnesses that appear before us were of the opinion that that may not necessarily address the question of possible conflicts of interest as fully as they would like. So could I ask the Minister, for the record, to elaborate more about why those separate offices are necessary and how that would address this concern and what other procedures are in place to make sure the government addresses any potential conflict of interest question. Thank you.