Aboriginal Courtwork Program Evaluation

Executive Summary

1. Introduction

The Aboriginal Courtwork (ACW) Program began as a community-initiated program in the early 1960s to address the unique justice challenges facing Aboriginal people involved in the criminal justice system. The purpose of the ACW Program is to help Aboriginal people who are in conflict with the criminal justice system obtain fair, just, equitable and culturally sensitive treatment. The objectives of the ACW Program are to:

  • Assist Aboriginal people to understand their right to speak on their own behalf or to request legal counsel, and to better understand the nature of the charges against them and the philosophy and functioning of the criminal justice system;
  • Assist in enhancing the awareness and appreciation of the values, customs, languages and socio-economic conditions of Aboriginal people on the part of those involved in the administration of the criminal justice system; and
  • Respond to problems and special needs caused by communication barriers that exist between Aboriginal people and those who are involved in the administration of the criminal justice system.

Federal funding of $5.5 million is provided to the ACW Program through contribution agreements with participating provinces and territories. In turn, most jurisdictions have entered into contractual arrangements with Aboriginal service delivery agencies (SDAs) which provide services on their behalf. Approximately 183 Courtworkers are employed by 20 SDAs across Canada to deliver services. The ACW Program is guided by a Tripartite Working Group (TWG) with representatives from the federal, provincial and territorial governments and SDAs which serve as a forum for addressing a range of program policy and operational issues.

2. Evaluation Purpose and Methodology

A formative evaluation of the ACW Program was undertaken in 2007, and a summative evaluation was completed in 2008. The current national evaluation of the ACW Program focuses on its relevance, performance, and program design and governance. The evaluation was conducted in several stages, from April 2011 to November 2012. It utilizes multiple lines of evidence including both primary and secondary data sources. Primary data sources included interviews with 50 key informants including federal justice officials, provincial/territorial representatives, SDA representatives, and other stakeholders; interviews with 116 judicial and court officials; and surveys of 161 Courtworkers and 1,166 clients. In total, nearly 1,500 representatives from various groups participated in the evaluation through interviews and surveys. In addition, an extensive review of documents and administrative files was conducted.

3. Findings and Conclusions

3.1. Relevance

Aboriginal people continue to be overrepresented in the criminal justice system. Literature suggests that Aboriginal people face socio-economic and cultural and language issues when accessing the legal system. Statistics show that the proportion of offenders incarcerated is 12% greater for Aboriginal (72%) than for non-Aboriginal offenders (60%). The number of Aboriginal offenders under federal jurisdiction has increased. From 2001/02 to 2010/11, the Aboriginal incarcerated population under federal jurisdiction increased by 37%. The 2006 Census data show that significant inequalities exist between the Aboriginal and non-Aboriginal populations with regards to education level and socio-economic measures such as employment and income. These cultural and social barriers have an impact on the ability of Aboriginal people to access and use legal services. Aboriginal people who have low levels of education and do not speak English or French face significant barriers in understanding their charges, the plea options, and their rights and responsibilities.

The Supreme Court of Canada has recognized that the history of colonialism, displacement and residential schools, and resulting socio-economic circumstances, contributes to the higher level of incarceration of Aboriginal people. The need for the ACW Program is reflected in continuing demand for Courtworkers' services. In 2010/11, nearly 60,000 clients in over 450 communities received services from a Courtworker.

Judicial and court officials and other key informants including SDAs, federal, provincial and territorial representatives, and other stakeholders such as Aboriginal justice workers and community justice workers, overwhelmingly agreed that there is a need for the Program. They attributed this to increasing challenges faced by Aboriginal persons before the court due to changes to the Criminal Code, increased demand for Gladue reporting Footnote 1, and limited access to other programming such as legal aid and paralegal services, as well as general lack of Aboriginal specific services, particularly in rural and northern communities.

The objectives of the ACW Program are consistent with the Department of Justice strategic outcome to ensure "a fair, relevant and accessible Canadian justice system". The Department of Justice plays a major part by carrying out its fundamental role in establishing, maintaining and refining the Canadian legal framework. The Program is also generally consistent with the priorities of the federal government.

The ACW Program is aligned with federal roles and responsibilities, under section 91(24) of the Constitution Act, 1867, to make laws in relation to criminal law and procedures that apply to all Canadians. Under the same law, provincial governments are responsible for the administration of civil and criminal justice, including policing and prosecuting most Criminal Code offences. As such, Aboriginal justice is a shared responsibility between the different orders of government. In collaboration with provincial and territorial partners, the federal government, through the Department of Justice, works to make the justice system fairer, more relevant and more accessible to Aboriginal people.

3.2. Achieving Expected Outcomes

Within the limits of its resources, scope and reach, the ACW Program has been effective in helping Aboriginal persons charged with a criminal offence to obtain fair, just, equitable and culturally sensitive treatment in the courts. The challenges faced by Aboriginal people in the justice system are significant, unique and multidimensional. The Courtworkers are strategically positioned within the courts to provide information and facilitate communications between judicial and court officials, clients of the Program (i.e., Aboriginal persons before the court) Footnote 2 and communities, thereby increasing access to justice and to alternative programs and services.

Aboriginal persons before the court most commonly request assistance from Courtworkers to help them better understand the court process, nature and implication of charges, meaning of their plea, information obtained from court officials, judge, and their lawyers, their rights and responsibilities, and how to apply for legal representation. Courtworkers also provide information and referrals necessary to help their clients make better informed decisions about participating in the alternative justice and other social programs available in their community. Almost two-thirds of clients surveyed said they were referred to legal resources (63%) and slightly more than one-third (39%) were referred to community resources by the Courtworkers. Over 90% of Aboriginal clients surveyed were satisfied or very satisfied with the information received, and 82% of the clients who were referred to legal resources were satisfied or very satisfied with the referrals. Most Courtworkers (70%) reported that their services met the justice-related needs of their clients. Similarly, key informants as well as judicial and court officials indicated that the Courtworker services generally meet the needs of Aboriginal persons before the court, to the extent that those services are available. Courtworkers are trusted by clients, courts and communities and are effective in gathering information, creating linkages and providing advice and referrals.

Courtworkers provide important and relevant information to judicial and court officials, particularly information as to the particular circumstances of their client, cultural and social considerations, and available alternative/restorative justice programs and services. Most judicial and court officials agreed that Courtworkers provide valuable services and help to expedite legal matters and processes by increasing understanding and communication between judicial and court officials and Aboriginal persons before the court. In addition, Courtworkers help improve the efficiency of the court system by assisting clients with applications and other forms (e.g., completing legal aid applications), facilitating meetings between clients and lawyers, ensuring that clients are informed and present in the court, and helping to ease cultural and language barriers.

The Program serves as a bridge between the formal justice system and Aboriginal people as well as their communities. Courtworkers are involved in the Aboriginal communities and work closely with Aboriginal-focused services and other social programs, where available. They inform courts as to the availability of such services and refer clients, thus contributing to the effectiveness of these programs. Over half of key informants noted that Courtworkers have raised awareness amongst judicial and court officials about the community programs and services available, while helping communities to better understand the criminal justice system and build the capacity to respond to the needs of clients involved in the justice system. The ACW Program has also helped to enhance the understanding and credibility of the justice system within the Aboriginal community.

The level of success in achieving the intended outcomes and generating impacts for clients, justice system and communities varies across jurisdictions. Some jurisdictions are experiencing challenges in meeting the demands for services, serving remote areas, retaining experienced Courtworkers, providing adequate training, and responding to pressures to expand services to other areas (e.g., family court, public education, etc.).

The Program implemented a one-time, four-year Project Fund that could be utilized by each jurisdiction to address challenges. Over one-half of the Project Fund was used by jurisdictions for training or to support training activities (including TWG national training activities). There is strong support for continuation of the Project Fund, particularly to address the need for ongoing training. The strong need for federal funding to support training is largely a function of the evolving role of Courtworkers (e.g., who face increasing pressure to expand their services and their involvement in Gladue reporting, family and legal matters, public and legal education, and advocacy); ongoing changes in the operating environment (such as changes in the justice system, technological change, and process changes); and Courtworker turnover (which creates a need to train new workers).

3.3. Program Design

Major strengths of the Program design include the governance model, the experience, knowledge and dedication of Courtworkers, and the relevance of the services provided. The creation of the Federal-Provincial-Territorial Working Group, the addition of the third co-chair to the TWG, and an increased emphasis on the development and implementation of annual work plans have improved the governance structure and strengthened collaboration between partners.

TWG members have also played an important role in improving the reporting system for the ACW Program. The challenges associated with reporting and performance measurements are better recognized, and a collaborative approach has been implemented to address some of the issues. Strengthening performance measurements and reporting requirements will further enhance the reliability of data and better inform program design in the future.

3.4. Efficiency and Economy

The budget for the ACW Program has remained at $5.5 million annually since 2002. The cost of the Program to the federal government, expressed on per Courtworker and client basis, remains low (in 2010/11, the cost was about $30,000 per Courtworker and $192 per client served, with the total cost varying significantly across the jurisdictions). The challenge of meeting the demand for services, while operating within a fixed budget, has resulted in a program that is delivered efficiently. However, the fixed budget has made it increasingly difficult to achieve the expected outcomes of the Program and respond to ongoing challenges; most notable amongst these challenges is the ability of the Program to meet the demand for existing services (particularly in remote areas); to respond to increasing pressures from judicial and court officials, clients and communities to expand the range or extent of services; to recruit and retain staff; and to provide ongoing training and other support to Courtworkers whose knowledge, experience and commitment determines the effectiveness of the Program.

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