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.