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

10.  Cost Drivers

10. Cost Drivers

This section focuses on factors that drive costs of providing legal aid in the Yukon Territory. One component of these factors - federal and territorial legislation and policies - is dealt with separately in Section 11.0.

10.1 Georgraphy and Community Size

Although, with the exception of Old Crow, communities in the Yukon Territory are significantly better serviced by road than communities in the Northwest Territories or Nunavut, geography is still a major driver of costs for the legal aid system. All communities outside of Whitehorse are served by circuit courts rather than resident courts, so the entire legal aid system is adapted to this reality (see description in Section 3.0). Virtually all respondents felt that travel time and costs add disproportionately to the legal aid budget, as compared to southern jurisdictions. Circuit travel expenses alone comprise 3 percent of YLSS expenses, but factoring in lawyers' time on the road, it is estimated that circuit expenses account for approximately 5-10 percent of the legal aid budget.

Geography has also impacted delivery of PLEI and courtworker services. The Law Line is seen as the most cost-effective way of reaching individuals outside of Whitehorse, but direct outreach to these communities is not feasible on the current budget. Similarly, the courtworkers based in Whitehorse used to be able to spend several days in each community on their circuits, which allowed them to do training with local groups, undertake PLEI, and meet more substantially with clients to help prepare cases. They now have time only to serve the communities on the circuit court days, or the evenings before.

The community-based courtworkers (see Table 8 in Section 4.1) are a response to geography and cultural/ political forces but, in most cases, only work part-time. In one case, a part-time worker is required to serve three communities. In two cases, the part-time courtworker position is combined with a part-time community justice co-ordinator position to make one full-time position.

10.2 Demographic and Socio-economic Fadtors

Respondents cited a number of demographic and socio-economic factors that they felt disproportionately drive legal aid costs in the Yukon, as compared to southern jurisdictions.

A large seasonal workforce and a high proportion of unemployed.
For example, the December 2001 unadjusted unemployment rate for the Yukon was 9.5 percent, compared to 7.6 percent for Canada as a whole, and in August 2002 was 8.4 percent, compared to 7.7 percent for Canada. As in the rest of Canada, employment tends to peak in summer in the Yukon, but the peak is more pronounced in the Yukon than in Canada as a whole. For example, the employment rate was 4.2 percentage points higher in the Yukon in August 2002 than in December 2001, versus 3.0 percentage points in Canada as a whole. These patterns drive legal aid costs insofar as both unemployed and seasonally employed (summer only) individuals are more likely to meet legal aid financial eligibility requirements.
Higher per capita crime rates and rates of violent crime.
Crime rate statistics compiled by the Yukon Bureau of Statistics for the years 1995-2000, based on Statistics Canada reports show that the Yukon:
  • Led all Canadian jurisdictions except the N.W.T. in overall reported crime rate (ranging from 20 to 25 incidents per 100 residents, compared next closest, B.C. and Saskatchewan, at 12-15 incidents). Yukon's clearance for these incidents, approximately 50 percent, was equal or higher than Nunavut.
  • Led all Canadian jurisdictions except the N.W.T. and Nunavut in reported violent incidents rate (ranging from 3 to 3.2 incidents per 100 residents, compared to a range of 1 to 1.7 per 100 residents for the provinces). The Yukon clearance rate for these incidents (between 70 and 80 percent) was comparable to that of most provinces.
  • Led all jurisdictions (except B.C. in two years) in reported property incident rates (ranging from 7 to 9 incidents per 100 residents, compared to less than 6 for all jurisdictions except B.C. and the N.W.T.). Clearance rates, at 25-35 percent, were in the middle range for most jurisdictions.
  • Led all jurisdictions (except Saskatchewan in three of the six years) in reported Criminal Code traffic incident rates (ranging from 1.2 to 1.5 per 100 residents, compared to less than 0.7 for all jurisdictions except Saskatchewan and the N.W.T.). Insofar as these incidents and (in most cases) higher clearance rates lead to charges and possible jail sentence, there are increased demands on the legal aid system.
Higher per capita alcohol consumption.
Canadian Community Health Survey data from September 2000 to November 2001 reveal that on two alcohol consumption indicators, Yukon residents are second only to the N.W.T. among all Canadian jurisdictions. The Canadian average daily alcohol consumption is 0.52 drinks. The Yukon average is 0.62, or 119 percent of the Canadian average. The Canadian average for number of drinks consumed in the past week is 3.88. The Yukon average is 4.62, again 119 percent of the Canadian average (data supplied by the Yukon Bureau of Statistics). Several estimates by respondents placed the proportion of young people in courts who have fetal alcohol effect (FAE) or fetal alcohol syndrome (FAS) at 75-100 percent. FAE and FAS are seen to impact legal aid costs through higher rates of crime and higher rates of "no show" or absenteeism at court appearances - thus requiring more adjournments and higher rates of breaches, thus leading to more frequent court appearances and difficulties in getting clients released "on condition" in future cases. FAE/FAS clients are also felt to consume more lawyer time for explanations of processes and for referrals to or co-ordination with other resources.
A higher divorce or separation rate.
Statistics Canada data for the period 1994-1998 (catalogue no.84F0213XPB) show that the Yukon's crude divorce rate (number of divorces per 100,000 population) is significantly higher than any other Canadian jurisdiction's (ranging from 313 to 370 per 100,000 in the five-year period, compared to those for all provinces, whose rates are well under 300 in all years, except for B.C. and Alberta in 1994). The Yukon Territory is also highest of all jurisdictions in the 30-year total divorce rate (the proportion of married couples who are expected to divorce before their thirtieth wedding anniversary). The Yukon rate ranges from 464-561 per 1000 marriages over the five-year period. The next closest province is Quebec, which ranges from 438-500. Family break-ups in the Yukon can also involve cases that are more complicated than in southern jurisdictions, because the spouse will frequently move to live with family in the south where he/she has support. This move will often be opposed by the other spouse because he/she fears total loss of contact with and access to the child(ren). Applications will often involve inter-jurisdictional issues.
Residential school syndrome and volume of child welfare cases.
Residential school syndrome is seen to be a contributing factor to the relatively high volume of child welfare cases, family violence and civil/criminal matters. Child welfare cases often involve more than one defence counsel and, to minimize impact on parents, may involve as many as five pre-trials. A wardship application may involve five court sitting days. These demands bear directly on legal aid time and costs.
Self-government negotiations.
This ongoing process may involve future transfers of justice administration functions to local First Nations, which may involve increased legal aid expenditures. Theoretically, this could mean there would be 14 separate programs, with funding for legal aid divided between them. However, it is extremely unlikely that this would happen, because of the difficulty in finding lawyers to reside in the smaller communities, and because the legal aid budget would have to be divided into 14 part-time positions. If a decentralization of the legal aid budget were to occur, it would more likely take the shape of a number of First Nations sharing a legal aid lawyer. This does not appear to be a prospect in the near future.

10.3 Corporate Factors

The strengthening of the staff system of legal aid outlined in Section 2.2.2 was necessary because, corporately, YLSS was not able to compete with private, federal Department of Justice or territorial Department of Justice pay and benefit scales, and thus was constantly losing staff. The adjustments that have been made since the Operational Review in 2000 reflect the high cost of doing business in the Yukon compared to southern jurisdictions.

10.4 Other Contextual Factors

The main implications of the court delivery system have been examined in Section 2.0 (court structure), Section 3.0 (circuit courts), Section 5.0 (JP court) and Section 6.0 (civil matters). Other contextual factors cited by respondents as driving the cost of legal aid delivery are:

Unrepresented litigants.
Although unrepresented litigants primarily impact court costs, in the civil area they often drive legal aid costs because, as counsel for one party in the dispute, a legal aid lawyer may have to deal with an unrepresented litigant. This often involves more adjournments and court appearances because of the unrepresented litigant's lack of knowledge about procedures and law. Refusal of a civil legal aid application on financial grounds may thus still indirectly contribute to higher costs of representation of eligible clients.
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