Legal Aid, Courtworker, and Public Legal Education and Information Needs in the Northwest Territories
This study of the needs of the legal aid, Courtworker and public legal education and information (PLEI) systems in the Northwest Territories addresses 10 research areas defined by representatives of the three territorial governments in July 2001. Together with parallel studies in the Yukon and Nunavut, its purpose is to describe needs that are specific to the northern jurisdictions in the delivery of legal aid and related services.
The study involved 87 key respondent interviews with deliverers of legal aid, Courtworker services and PLEI services, as well as other criminal justice and social service respondents familiar with those services. In addition, statistical data were gathered from the Department of Justice of the Government of the Northwest Territories (GNWT), the Legal Services Board (LSB) and the GNWT Bureau of Statistics. A focus group was held in Yellowknife in August 2002 to reflect on the priority, rationale and strategies for needs that had been defined to date.
Impacts of Court Structure, Geography and Culture on Legal Aid
Defined key macro-characteristics impacting legal aid delivery are:
- The Aboriginal population is 48 percent of the territorial population, and forms a majority in 28 of the 31 communities outside of Yellowknife.
- There are resident courts in Yellowknife, Hay River and Inuvik, with all other communities served by circuit courts.
- Access to communities in the north of the territory is predominantly by plane.
- A significant role is played by Justice of the Peace (JP) Court, which deals with territorial offences and many summary criminal matters, especially on guilty pleas.
Thus, to a significant degree, the legal aid delivery is adapted to the rhythm of the circuit system. Furthermore, the role of Courtworkers is critical in bridging between the court system and Aboriginal populations, and in filling needs in the JP courts.
Legal aid, both through the system of “presumed eligibility” and actual legal aid representation, serves approximately 70–75 percent of criminal cases in the territories, and this total is augmented by Courtworker services. The volumes of both criminal legal aid approvals and of criminal cases in Territorial Court have remained relatively constant in the past three years, although, by both measures, youth matters have increased.
A high proportion of Supreme Court trials by jury (as opposed to judge alone) is a driver of legal aid costs.
Private bar respondents who do legal aid work stated that fees on tariff are inadequate. In general, there is a small pool of northern lawyers to draw upon for tariff work, and it is difficult to recruit skilled practitioners for staff positions.
The percentages of denials of civil and family legal aid applications (averaging 61 percent and 40 percent respectively over the past three years) are significantly higher than for criminal matters (approximately 11 percent for adults and 8 percent for youth over the past three years).
Federal contributions to the delivery of legal aid have remained close to 40.5 percent of total costs over the past five years.
The primary feature of circuit courts that affects legal aid delivery to clients is the speed at which all processes occur. The main impact is that lawyers have less time to talk to clients and prepare their cases. For the most part, respondents felt that this does not significantly impact the quality of representation, but did feel that clients receive less support and explanation, and that their experience is often one of alienation and lack of confidence in a system they can’t understand. The main recommendations for addressing the compressed time schedule, all of which involve expenditures for legal aid, are:
- Have the Courtworker and lawyer arrive in town the day before the rest of the court party.
- Have a part-time Courtworker resident in some of the smaller communities.
- Have a second lawyer on the circuit.
Delays are not a significant factor in court cases on circuit. In fact, adult cases on circuit have generally been completed faster than in resident courts. Continuity of counsel is also seen to be handled well, as defence counsel are assigned to prescribed circuits.
Justice of the Peace (JP) Court
Since Courtworkers are the primary defence resource in JP courts, it is important to gauge the types of impacts dispositions in these courts have on offenders. Over the past two and a half years:
- Approximately 11 percent of dispositions have involved jail sentences, the majority between two days and four months.
- Eight percent involved probation sentences, the vast majority of which were four months or more.
- Thirty percent involved a fine (not including municipal fines).
The level of lawyers’ concern about the ability of Courtworkers to adequately represent clients in JP courts was related to their confidence in the capabilities of the JPs. If both JPs and Courtworkers were perceived as lacking skills, there was serious concern about the adequacy of justice in JP court and the ability of Courtworkers to protect the rights of accused persons.
In the criminal sphere, Courtworkers play out-of-court roles (contacting and interviewing clients, reviewing allegations, discussing plea) and, to a lesser but still significant extent, in-court roles (discussions with Crown, plea, sentencing and some trial activities). Civil cases involve primarily out-of-court roles (legal aid applications, helping clients to gather information).
The largest single area of increase in demand for Courtworker services has been in relation to JP court, where, because legal aid lawyers are not usually present, there has been more pressure for Courtworkers to do active court work. There was a considerable division of opinion among respondents over the advisability of and/or extent to which Courtworkers should be undertaking active in-court roles. Regardless of how respondents felt on this issue, there was a strong consensus on the need for more Courtworker training. Concerns addressed by respondents in regard to training included the purpose of Courtworkers’ roles, screening of Courtworkers, the need for a certification system, substantive focus, format and location.
Unmet Needs in Family and Other Civil Matters
Legal aid is involved in the vast majority of child welfare cases that come before the courts. A rough estimate is that 50–75 percent of custody, client support and access cases heard in Supreme Court are handled by legal aid.
There was an overwhelming consensus among respondents that there is a drastic shortage of lawyers in the NWT willing to practise family law, and that the environment in which family law is practised is acrimonious and emotional. Unlike with criminal work, it is difficult to sustain a family law practice from an in-home office, because of the secretarial demands, and this adds to the existing shortage.
The result of these limitations is major delays in clients finding a lawyer, if they are able to find one at all. The backlog of family cases handled by the Legal Services Branch is estimated at eight months. In this context, where the civil legal aid system is severely under-resourced, social agency respondents claimed that clients often feel that lawyers do not care about their cases or do not have their interests at heart.
Strategies within the LSB’s power to respond to those needs include more outreach to clients in clinic or social service settings, increasing the family law tariff or having an additional staff lawyer, and directing more PLEI to family law matters.
Unmet Needs Prior to First Appearance
The primary concerns identified by respondents in assisting clients prior to first appearance are:
- The majority of clients do not contact a lawyer or Courtworker. Information about contacting Legal Aid should be provided by the RCMP.
- Charged persons in Yellowknife are often transient and often lack telephones.
- Even when released by a JP, accused persons often agree to conditions that defence counsel would likely find unreasonable.
- RCMP personnel have considerable difficulties contacting a lawyer in the evening or at night.
- Most lawyers find it difficult to assess a client’s ability to understand instructions or procedures on the phone, either in calls from a cell, or in a telephone show cause hearing. Some defence lawyers refuse to participate in a telephone bail hearing.
Interplay between Criminal and Civil Issues
In exploring the interconnections between criminal and civil matters, respondents identified two frequent patterns:
- Spousal assaults leading to a demand for custody and/or access assistance.
- Family matters being settled very slowly, and degenerating into criminal matters such as mischief, impaired driving or abduction.
The most useful approaches to deal with these patterns were seen to be:
- Speedier access to legal aid and courts to resolve custody and access issues.
- A more holistic approach involving access to treatment and/or intensive counselling around family violence, family relations, and/or alcohol abuse.
Public Legal Education and Information (PLEI)
In general terms, many respondents felt there was a major need for more PLEI. Many respondents felt that when the Arctic Public Legal Education Association existed (prior to 1996) there was more coherent and extensive provision of legal information than exists presently.
The main PLEI program at present is the Law Line, a call-in information line staffed by local lawyers that operates two evenings per week. A slight majority of callers are women, 80 percent of calls pertain to civil or family matters, and 40–44 percent of calls are from outside Yellowknife.
The main areas of need for PLEI were considered to be:
- Basic justice system and process information.
- Family law information.
- The zero tolerance policy related to spousal assault and family violence.
- Legal aid coverage and application procedures.
In terms of delivery methods, respondents emphasized the need for more PLEI outreach (e.g., in community service centres), using Courtworkers as vehicles of PLEI, more oral rather than written communication, and the use of plain language.
The major drivers of legal aid costs that respondents identified as unique to or felt disproportionately in the NWT compared to southern jurisdictions are:
- The large number of small communities in a large territory, often accessible only by plane, which results in high travel costs and time usage both for staff, private lawyers on tariff, and expert witnesses from outside the jurisdiction.
- High rates of alcohol abuse, and fetal alcohol syndrome (FAS) or fetal alcohol effect (FAE), which drive many criminal and civil incidents.
- Residential school syndrome, which is seen to drive much family dysfunction and violence.
- The high level of financial need among persons charged with criminal offences.
- High rates of crime and high rates of clearance of criminal incidents.
- The high rate of jury trials in Supreme Court.
- The high costs of running legal practices in the NWT (estimated as 25–30 percent higher than in southern jurisdictions), and the difficulty of recruiting lawyers.
- The lack of non-litigated options for resolution of family matters.
Federal and Territorial Drivers of Costs
The following federal and territorial legislation and policies were identified as the main drivers of costs in the NWT:
- As a result of increased staffing and resources provided to the Crown office in Yellowknife, there is a greater capacity for Crown to pursue and support prosecution of cases that might not have proceeded in the 1990s. This puts pressure on the LSB to support the defence process in equal measure.
- The zero tolerance/mandatory charge policy in spousal assaults.
- Territorial policy (with federal encouragement) that courts should be held in communities rather than in centralized, resident locations.
- Federal/territorial policy encouraging community-based alternative justice processes. Although many cases are diverted, in other cases there may be increased preparation required to develop appropriate sentencing plans.
- The Charter of Rights under the Constitution Act has contributed to dramatic increases in applications such as challenges to the admissibility of evidence.
From one perspective, the Legal Services Board can be seen as having done an admirable job of meeting basic legal needs in the NWT, despite severely constrained resources. From another perspective, the legal aid system is in crisis, with the fault lines most strongly evident in the major backlog of family cases; the demands on Courtworkers for training to work more effectively in the JP court system; and in the inability of the LSB to devote significant time and resources to effective PLEI outreach.
These stresses have particular impacts on women, as the major consumers of family law services, and on Aboriginals, who form the majority of the population in the many smaller communities JP courts are intended to serve.
On the one hand it is unlikely that the LSB can address these problem areas without a significant infusion of funds from either or both the territorial and federal governments. On the other hand, to make more effective use of the additional funds, the LSB will need to explore alternatives such as family outreach clinics, joint developments with other departments or agencies, and (again as a joint venture) technological possibilities such as video-conferencing facilities.
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