The Ottawa Special Services Project: A Case Study in Destabilization.

• Date: 22 March 2001
• Author: Yeager, Matthew G.
• Published date: 22 March 2001
• Author: Yeager, Matthew G.

I think they killed it largely because of a philosophical bent among benchers who still view the defense of criminals who can't afford to pay a lawyer as a quasi-charity. A vast majority of them have never done a criminal case and never will.

- An Ottawa defense attorney (in Bindman, 1984)

IN 1982, THE LAW SOCIETY OF UPPER CANADA AUTHORIZED A PILOT PROJECT ON sentencing, the Ottawa Special Services Project. The program ran until early 1984, when it was discontinued by the Benchers of Convocation, the Law Society's Board of Directors. What follows is a case study of that program (Berg, 1998; Hamel, 1993).

I have labeled this activity "destabilization," reflecting activity on the part of governing bodies that is manifestly political and ideological in origin and designed to maintain established hegemony (Lee, 1994; Kofie, 1996). The thesis of this article is that the Ottawa Special Services project was, in fact, destabilized. The question is why: What societal forces contributed to the project's demise? In this regard, critical theory (Morrow, 1994; Groves and Frank, 1986; Russell, 1994) is particularly useful in deconstructing a legal aid project to see how the debate was "defined" and in demonstrating which ideologies served to reproduce hegemonic institutions. Critical theory further permits us to explore the general inequality of legal services to the poor, especially those people accused of criminal acts (Reiman, 1998). Thus, on a macro level, this case study takes place in the political economy of advanced, industrial capitalism in which inequality is structural (Gordon, 1971). Lastly, it will be importa nt to make practical observations about how society might respond to such scenarios (DeKeseredy and Schwartz, 1991).

Origins

The Attorney General of Ontario, the Honorable R. Roy McMurtry, originated the project because of his interest in creating a public defender office in the province. This posed a direct challenge to the existing system of legal aid certificates assigned -- on a case-by-case basis -- to private members of the Bar (Levy, 1991a). Discussions led to a compromise under which the existing delivery system of indigent legal services could be preserved at reduced cost and with improved defense services. From this agenda, the Law Society was directed to investigate a defense "social worker" model then being touted by the National Legal Aid and Defender Association, headquartered in Chicago (Edwards, 1976-1977).

To pursue this and other projects, the Law Society hired a recent graduate from York University's Osgoode Hall, Harold J. Levy. A young, liberal attorney with extensive credentials in journalism, Levy hired consultants to conduct a survey of legal aid services in Ontario (mainly in Toronto), and to help formulate a model pilot program. The firm hired by Levy to interview attorneys, members of the judiciary, and representatives of criminal justice agencies found that these professionals overwhelmingly endorsed the need for "social workers" to help prepare social history reports and investigate sentencing alternatives.

Indeed, 50% of the lawyers told the interviewers that they had used social workers in private criminal cases, and 43% had used them in legal aid cases. However, a random check of Legal Aid files did not reveal any authorization for the use of social workers in criminal cases (Levy, 1980: 2, 4). It later became evident that Legal Aid attorneys were not using a formal advocacy model that employed social workers to prepare detailed sentencing evaluations. Instead, they relied on organizations such as the John Howard Association and the Elizabeth Fry Society to provide ad hoc services -- usually in the form of a community resource placement (such as counseling and helping find jobs and housing). Indeed, Legal Aid attorneys inundated the executive director of Toronto's John Howard Society with service requests and he wished to charge the Law Society a fee-for-service.

The researchers found that Ontario's Legal Aid Plan was expending little or no money for the kind of pre-plea or post-conviction advocacy that envisioned the use of social workers. Individual lawyers might charge an hour or two to develop resources for their indigent clients, but the work was not being done in any comprehensive fashion. Clearly, the creation of a social work unit for Legal Aid attorneys meant an expansion of resources available to counsel and their clients.

Ultimately, Levy and his consultants recommended that the Law Society establish a two-year, cost-effective pilot project to "improve the quality of legal defense services provided by Ontario Legal Aid Plan clients who are criminally accused" (Ibid.: 17). Another implicit goal was that social workers would decrease the cost of attorney services on cases. Since services had never formally been provided in the past, the way in which costs would decrease was left unspecified. Nevertheless, a report to the Legal Aid Committee noted:

The Project is in part based on the knowledge that a considerable part of a lawyer's time is currently spent on social work matters which can be done less expensively and often more efficiently by trained social workers (Convocation, 1981).

In addition, social workers would be able to use their skills to help develop "various alternatives to incarceration" and to provide clients with much-needed counseling.

On November 20, 1981, members of the Law Society's Convocation approved the establishment of a two-year pilot project in Ottawa--a surprising choice, since Toronto was the site recommended by the consultants and Levy. In any event, members of the Ottawa Bar were enthusiastic about the project being headquartered in their city. Convocation then endorsed the expenditure of about $199,100 for the fiscal year beginning April 1, 1982 (Convocation, 1981: Appendix F). The budget called for the hiring of four staff persons: a chief social worker, two staff social workers, and a secretary. Only $5,000 was allocated for a formal evaluation. In the ensuing months, Harold Levy secured the services of Edward D. "Ted" Hughes, a 25-year veteran of police and corrections work in Ontario. Two young criminologists with master's degrees from the University of Ottawa were hired as staff, along with a secretary. Queens University psychologist Ray Peters, Ph.D., brought aboard by Special Projects Coordinator Levy to evaluate the project, began to develop data collection forms in collaboration with two graduate assistants. [1]

By July 19, 1982, the project was up and running, having obtained 47 referrals from defense attorneys. Levy and Hughes met with various community agencies, but especially with members of the Ottawa Defense Bar, to familiarize them with the project and to encourage them to use it. Levy made a weekly trip to Ottawa to educate members of the Bar. The following is a typical case evaluation returned after disposition (Levy, 1991b):

The report was complete, extensive, well prepared, and expertly presented. The assistance of your office was greatly appreciated by myself and the client's family. I wish to express my appreciation for the excellent work performed by the Special Services Project. The quality of a service such as this is best measured by its ability to handle a difficult case. The difficulties involved in placing Miss [name withheld] appeared insurmountable at times, but the Project, unlike some other social agencies, did not give up hope.

During the project, the chairman of the Ontario Legal Aid Plan wrote to Attorney General McMurtry: "We are hopeful that the Social Worker Project will help to reduce the cost of the delivery of legal aid services under legal aid certificates" (Convocation, 1982). He also noted that the project intended to explore alternatives to imprisonment and to assist families involved in criminal justice offenses.

In early 1983, Ted Hughes received word from the Legal Aid Office in Toronto that his budget for the coming fiscal year would be reduced substantially. To maintain the viability of the project, Mr. Hughes returned to his position with the Ontario Ministry of Correctional Services, thereby eliminating his salary, and made other budget cuts. He was still able to spend one day a week supervising his two caseworkers, who were now handling all of the sentencing workups. According to Harold Levy (1991a):

About this time, we started hearing rumblings that the Project was in trouble. I had always been really nervous about the Project from the start, because I didn't believe the Law Society really endorsed this program. And some of the benchers resented the A.G. for initiating this.

This led to pressure on Professor Peters (1983) to complete his evaluation of...