The New-Brunswick Aboriginal Duty Counsel Project


This is not an evaluation of the project. It is a monitoring exercise, intended to trace the experience of the project in its first year of existence, and to raise questions for the future development of the project. Questions of whether formal objectives have been met are not addressed. Questions about whether the particular approach chosen was the best one to address the stated objectives are not addressed. The cost-effectiveness of the project is not assessed.

The analysis uses four data sets. Two data sets represent the regular duty counsel service for two years prior to the project, 1996-97 and 1997-98. These data allow limited pre-project – project comparisons. One data set represents the regular duty counsel service operating at the same time as the project, December 1998 to December 1999. This allows a limited contemporaneous comparison with the project. The data were limited to the court in Richibucto, New Brunswick where Aboriginal people from the area were most likely to appear.  This yielded a limited amount of administrative data that were coded from regular duty counsel report forms (Appendix I). The forth data set represents the Aboriginal Duty Counsel project. The data represent the period from December 1998 to December 1999. A special data collection form was designed to gather data from the Aboriginal duty counsel project (see appendix I). This database included somewhat more detailed data than the regular duty counsel data from the management information system.

Duty counsel data can be complex. Regular administrative duty counsel information is recorded daily, based on clients seen at first appearance court. Because the information is recorded daily, a contact is recorded each time a person sees the duty counsel lawyer, so long as the contacts occur on separate days. The same accused individuals may have repeat contacts with the duty counsel lawyer regarding one arrest. As well, the same person can have repeat contacts with the duty counsel lawyer because of successive arrests and charges.

Thus there are three possible units of analysis; times seen, separate charges (single or multiple), and unduplicated individuals. Times seen may be relevant to duty counsel workload. Contacts related to separate arrests might be relevant to process issues such as the number of adjournments. Unduplicated individuals would be the appropriate unit of analysis for personal characteristics.

The Aboriginal Duty Counsel Project data set contained 305 contacts, reflected 221 appearances on new charges, and involved 146 separate individuals.

The comparison data from the pre-project duty counsel service in 1996-97 and 1997-98, and the 1998-1999 regular duty counsel data are counts of duty counsel contacts, rather than persons or separate charges. The main purpose of these data sets is to derive a proportion of matters adjourned, the proportion of guilty pleas, and the proportion of not guilty pleas. The presence of repeat contacts for the same charge corrupts these data sets for that purpose. It is not possible to adjust these databases to represent separate new charges from the present number of visits unit of analysis because sufficiently detailed data on charges are not available. It would be possible to adjust them to unduplicated persons. However, that is not the ideal unit of analysis for the analysis of adjournment and plea. Therefore, the limited calculations carried out on the regular duty counsel databases will be done on the original databases reflecting total number of visits. This is not ideal. However, these data will only be approximations rather than precise measures.

Aboriginal Identity of Clients

The duty counsel project served only Aboriginal people. If comparisons were to be made, it was necessary to identify Aboriginal clients in the pre-project and the contemporaneous data sets constructed from the regular duty counsel reports. Aboriginal status is not identified on these reports. Aboriginal status was assigned on the basis of name identification. Aboriginal surnames are highly identifiable in that area of New Brunswick. These names were identified and designated as Aboriginal on the database. A list of residents of the local Aboriginal communities was used to assist in the identification process. The Native communities in this area are small certain names are very common. The problem often arises in distinguishing the several people with the same surname and similar given names, rather in identifying people who identify themselves as Aboriginal.

In spite of attempts to accurately identify individuals, this was not a perfectly reliable process. It is unlikely that many false positives were identified, people identified as Aboriginal but who are not. It is more likely that false negatives occurred. Some Aboriginal people might not have been identified as such. However, it was assumed that the error factor would be small, and any percentage differences between Aboriginal and non-Aboriginal clients would not be significantly affected.

The name identification method identified 194 Aboriginal surnames from among the regular duty counsel contacts from 1996-97, and 161 Aboriginal last names from the first nine months of 1997-98 (the project began in December of 1998). Grossing up the number of Aboriginal duty counsel contacts to a full year for 1997-98 would yield about 200 Aboriginal contacts for the full year.  This seemed like a reasonable outcome based on the RCMP data presented in Table 1.1. According to those data 110 people from the Big Cove First Nations Community were charged with criminal offences that proceeded to court over a six month period. This would be approximately 220 people for a one-year period.  This number is close enough to the numbers of Aboriginal duty counsel contacts identified in the two years prior to the project to suggest that the name identification method yielded reasonably accurate results.

Interview Data

It was decided at the outset that Aboriginal clients would not be interviewed in order to gather client satisfaction or other qualitative data. A fairly high degree of alienation of Aboriginal people from the justice system is taken as a given. In addition, during the period when the project was being monitored, The Big Cove reserve was involved in a volatile political conflict with the provincial and federal governments over treaty-based logging and fishing rights. Political tensions were high. These factors would probably have compromised the validity and reliability of any attitude data. As well, it was expected that these people would have been very difficult to contact for telephone interviews. This would have further compromised the utility of the data.

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