Legal Aid, Courtworker, and Public Legal Education and Information Needs in the Yukon Territory: Final Report

Executive Summary

Background

This study of the needs of the legal aid, courtworker and public legal education and information (PLEI) systems in the Yukon Territory addresses 10 research areas defined by representatives from the three territorial governments in July 2001. Together with parallel studies in the Northwest Territories and Nunavut, its purpose is to describe needs that are specific to the northern jurisdictions in the delivery of legal aid and related services.

Methodology

Central to the research were 53 interviews conducted with a range of key respondents - people involved in the delivery of legal aid, courtworker services and PLEI, others in the criminal justice system, and people in the community who had had direct contact with the legal aid system themselves or through clients. In addition, statistical data was gathered from the Department of Justice of the Yukon Territory Government (YTG), especially Court Services, the Yukon Legal Services Society (YLSS), the Yukon Public Legal Education Association (YPLEA) and the Yukon Bureau of Statistics. A focus group was held 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

Key macro-characteristics impacting legal aid delivery are:

  • An Aboriginal population that is 20 percent of the territorial population, but which forms a majority in seven of the thirteen communities outside of Whitehorse.
  • A single resident court in Whitehorse, with all other communities served by circuit courts of varying frequency.
  • An intention to increase the use of Justice of the Peace (JP) courts between regular circuits in outlying communities.

These characteristics require that much of the legal aid delivery be adapted to the rhythm of the circuit system, which may increasingly include some legal aid presence in the JP courts. Furthermore, the role of courtworkers is critical in bridging between the court system and First Nations populations.

The vast majority of serious personal and property criminal matters brought before the courts in the past three years have involved legal aid. Statistics on approved criminal legal aid applications closely mirror the fluctuations in total charges before the courts in this period.

The major development in relation to the delivery of legal aid in the Yukon in the past three years has been the strengthening of its staff-based structure, based on recommendations of an Operational Review in March 2000. This was a response to a crisis in which YLSS had lost four staff lawyers. Although YLSS has now achieved stability, it is dependent on the Yukon Territory Government's (YTG) continued high level of support, which has increased to 69 percent of combined federal/territorial contributions, compared to 50 percent in 1997-98. In addition, many respondents in the legal profession, while acknowledging that the strengthening of the staff system was necessary, voiced concerns about the continued viability of the private bar as a legal aid resource.

Circuit Courts

The primary merit of circuit courts is that they bring the justice system to smaller communities that cannot sustain resident courts. The primary disadvantage is the speed at which matters have to be addressed because of the limited time legal aid lawyers are in the community and the large number of trial matters to which they have to attend. Respondents felt this resulted in less case preparation time, less time to understand the dynamics and relationships in the communities that may affect cases, and less client confidence in the justice system. Significant case delays, however, are not common on circuits.

Courtworkers

The devolution of some courtworker positions from the Council of Yukon First Nations (CYFN) to several First Nations in the 1990s has meant, on one hand, greater community control over the hiring and functioning of courtworkers. On the other hand, from a territorial perspective, there is less of a unified vision of the roles and training needs of courtworkers than existed in the first half of the 1990s.

Although defence counsel and courtworkers characterized their personal relationships as positive, there was a strongly expressed feeling from most legal professionals that there should be more formal co-ordination between the courtworker structure and YLSS. It was generally agreed that courtworker training initiatives would be the most realistic focus for increased collaboration. Various strategies were suggested by respondents, including certification levels for courtworkers, piggy-backing courtworker training on training sessions for justices of the peace, participation in national courtworker training initiatives, and individual mentoring of courtworkers by legal aid lawyers.

Justice of the Peace Court

A significant majority of charges heard by Justice of the Peace (JP) courts are territorial offences, with smaller proportions of justice administration, impaired, and other Criminal Code charges. JP court in Whitehorse handles almost 80 percent of JP cases in the territory, but there are plans to expand the JP court role in those communities and, ultimately, throughout the territory.

Duty counsel in JP court in Whitehorse will assist any accused person on first appearance, or on subsequent appearances to obtain adjournments. They may also be assigned as counsel for accused with more serious charges likely to be heard by a judge after first appearance.

Over the past three and a half years, 9 percent to 12 percent of dispositions in JP courts have involved fines of more than $100, and 13 percent to 14 percent have involved jail sentences. Whereas at present it is likely that, in the vast majority of these cases, individuals receive assistance from duty counsel or courtworkers, if the JP courts are expanded as planned, there will be greater demands on duty counsel and courtworkers. This will be especially true if the JP court sits between regular circuit dates, requiring visits by duty counsel or courtworkers.

Civil Legal Aid

A central recommendation of the Operational Review of YLSS in 2002 was that the expansion of family law services be prioritized over any other expansion of services. In response, the YLSS has begun to fund selected family cases through to permanent orders. The overall refusal rate of family/civil applications, based on 2001-2002 data, is higher than for criminal application (18 percent versus 2 percent). Nonetheless, it would appear that legal aid is covering approximately 65-80 percent of family cases heard in Territorial and Supreme courts.

At present only one or two members of the private bar will take civil/family legal aid cases, primarily because of the low tariff. The vast majority of family cases are, therefore, handled by staff lawyers. Respondents acknowledged progress has been made in the funding of family matters, but urged that more consistent funding of cases to the final order stage be undertaken. Other related issues raised by individual respondents concerned "less bureaucratic" billing arrangements, more incentives to settle family matters without trial, and coverage for Family Violence Protection Act cases. In civil matters, several respondents felt that there should be greater access for individuals to summary advice rather than simply to information.

Activity Prior to First Appearance

The primary concerns identified by respondents in assisting clients prior to first appearance were:

  • Difficulties for detained persons in accessing counsel during the day. Duty counsel are on-call in the evenings, but are usually in court during the day.
  • Although the vast majority of show cause hearings are held in Whitehorse before a JP, approximately 10 percent are done by telephone. Several respondents felt this system is inadequate for proper representation, and one respondent would simply refuse to do telephone show causes at all.
  • Delays in receiving disclosure from Crown, leaving defence counsel insufficient time to consult with clients.

Interplay Between Criminal and Civil Issues

In exploring the interconnections between criminal and civil matters, respondents described a typical pattern in which family disputes would lead to domestic assaults, abduction of a child, seizure of property, or other crimes. Disputes were described as usually involving children and usually involving alcohol. Respondents felt that a more holistic approach would be required to break this type of pattern. Such initiatives as the Domestic Violence Treatment Option Court and community justice processes were seen to be steps in this direction.

Public Legal Education and Information

The Yukon Public Legal Education Association (YPLEA) is a non-profit organization that provides legal information to the public to promote understanding of and access to the legal system. Its main and best-known service is the Law Line, a 1-800 service that responds to callers from throughout the Yukon. Over the past three years 38 percent of calls have concerned family matters, and 44 percent civil matters.

Among our respondents, apart from YPLEA, legal professionals such as defence lawyers, Crown counsel and judges provide PLEI services with a substantive law and procedural focus; RCMP officers have a prevention focus; while other's PLEI services are more diverse and holistic, including both justice and social issues.

In PLEI, the key substantive law needs were perceived by respondents to be in the area of family law, with mention also of civil areas such as employment standards and landlord-tenant information. Procedural information needs included how to apply for legal aid and how court processes work. Many respondents spoke strongly of the desirability of moving YPLEA to a more central downtown location in Whitehorse, and also recommended more outreach to outlying communities and/or intermediary organizations. A third area of concern was expanding assistance to clients by including a summary advice function. This would require a change of YPLEA's mandate.

Cost Drivers

The major drivers of legal aid delivery costs identified by respondents included:

  • Servicing outlying communities by circuits.
    • Circuit expenses account for 5-10 percent of the legal aid budget, and put similar demands on some courtworker budgets. Apart from the Law Line, YPLEA has not been able to undertake direct community outreach.
  • A large seasonal workforce, and a higher proportion of unemployed than in southern jurisdictions.
  • Higher per capita reported crime rates and higher rates of violent crime than in southern jurisdictions.
  • Higher alcohol consumption indicators than in southern jurisdictions.
  • The highest divorce rate in Canada.
  • Residential school syndrome and a high rate of child welfare cases.
  • The need to pay salaries competitive with those of comparable employers such as the federal Department of Justice or territorial government, so as not to continue to lose staff, as prior to 2000.
  • Unrepresented civil litigants consuming court time, impacting some legal aid cases.

Federal and Territorial Legislation and Policies as Drivers

Among federal and territorial legislation and policy factors, the following were identified as major drivers of legal aid costs in the Yukon Territory:

  • Increased federal resources for Crown prosecutors. This creates direct pressures on legal aid to mount a comparable defence.
  • Commitment to alternative sentencing procedures, especially for Aboriginal offenders, e.g., the Gladue decision, Criminal Code requirements (section 718.2e). To consider all available sanctions other than imprisonment can increase the time required of defence counsel, both in preparation for and during sentencing.
  • Spousal assault mandatory charging and prosecution policies increase legal aid expenditures.
  • Over-policing.
  • Crown case assignment and handling procedures were felt to give defence counsel inadequate time to review disclosures and talk with their clients, thus necessitating adjournments.

Conclusions

Three broad areas of need emerge from this study:

  • Corporate needs
    Although YLSS has achieved corporate stability, allowing it to retain staff since the Operational Review in 2000, this has been accomplished only through significantly increased YTG funding. A rebalancing of federal and territorial contributions would seem an essential starting point in future Access to Justice Agreement negotiations. Another basic need for YLSS is to achieve some parity with prosecution staffing and resources funded by the federal Department of Justice, which directly impact on legal aid resource requirements.
  • Aboriginal needs
    Several themes directly and indirectly related to the needs of First Nations clients have implications for future funding agreements. These include the need for increased courtworker training; delivery of legal aid (duty counsel) and/or courtworker services if JP courts expand services in outlying communities; and the need for more time and support, especially on circuits, to serve First Nations clients.
  • Gender needs
    Insofar as the majority of criminal legal aid matters involve- males and the majority of family matters usually involve female legal aid clients, the emphasis on family legal aid needs can be seen as gender-related. Respondents, while acknowledging improvements in coverage by YLSS in the past year and the important role YPLEA has played in filling information needs in family cases, identified several areas in which assistance could be significantly increased. All have funding implications.
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