Legal Aid, Courtworker, and Public Legal Education and Information Needs in the Yukon Territory: Final Report
11. Federal and Territorial Legislation and Policies
The following federal and territorial legislation and policies were identified as key drivers of legal aid costs in the Yukon Territory:
- Resources of Crown counsel.
As noted in Section 10.3, the YLSS had lost several staff lawyers prior to the Operational Review in 2000. Three of those losses were to the federal Department of Justice as Crown counsel. YLSS feels strongly that the business case that was made to the federal Department of Justice to increase prosecution resources should apply equally to the resources required for the legal aid system. An increased capacity to prosecute "marginal" cases, to pursue appeals, and/or to bring expert witnesses or other resources to support the prosecution's case inevitably has a direct impact on legal resources required for YLSS to mount an appropriate and adequate defence.
- Commitment to alternative sentencing procedures.
The combined impact of the Gladue decision, the revisions to the Criminal Code (section 718.2 e) requiring consideration of all available sanctions other than imprisonment (especially for Aboriginal offenders), and the commitment of the Territorial Court bench to ensuring that such alternatives are fully considered, are seen by respondents to significantly increase the time required of defence counsel in preparation for and during sentencing. Respondents felt that, because of the high expectations and proactive nature of the bench, average sentencing processes for Aboriginal offenders take longer than anywhere else in Canada, even if a sentencing circle is not involved. Because of the limited capacities of some communities to provide resources to support an offender, sentencing processes can take even longer to develop a workable plan.
It was suggested that it is not essential that legal aid lawyers participate in the entire process for Gladue sentencing. Rather, their role should be to ascertain clearly at the beginning of the process whether the client wants to participate in a sentencing circle, and to explain what the outcome would likely be if the individual were to proceed within the mainstream court process. If the offender elects to proceed by circle, the legal aid lawyer would no longer be involved, and the courtworker would become the main source of support as a "defence" representative within the larger circle process. (As noted in Section 4.3, working with First Nations in Aboriginal justice processes is one of the roles of courtworkers.) Another variant would be to have "pre-circles" prior to formal sentencing that would not involve the full court party. Recommendations from this circle could then be incorporated in the court-based sentencing hearing.
- Spousal assault charging and prosecution policy.
Some respondents felt that spousal assault mandatory charging policies result in charges that stand little chance of being successfully prosecuted, but nonetheless incur legal aid expenditures.
Some respondents felt that, compared to southern jurisdictions, the Yukon is over-policed. These results in higher detection and charge rates, which ultimately involve higher legal aid expenditures (see comments in Section 10.2 concerning incident and clearance rates).
- Federal weapons legislation.
Federal firearms legislation is believed to have contributed to increases in weapons-related offences and associated defence costs.
- Forensic DNA analysis legislation.
Although not seen as a major cost driver, nor one disproportionately affecting northern jurisdictions (except for the cost of hiring expert witnesses), the inclusion in the Criminal Code in the latter half of the 1990s of provision for DNA analysis was felt by one respondent to contribute to increased defence costs.
- Crown case assignment and handling procedures.
Several respondents felt that Crown case assignment and handling procedures in Whitehorse have resulted in inefficient use of time for defence counsel. They said that Crown are not consistently assigned to the same case, that they often arrive at show cause hearings at the last minute, and that they are often late in providing disclosure. Under these circumstances, defence counsel are given insufficient time to review disclosures and talk with their clients, thus necessitating adjournments.
- Domestic Violence Treatment Option Court and Youth Justice Panels.
As noted in Section 2.2.1, both of these initiatives are seen to slightly increase defence time expenditures. The comments in regard to a potentially more limited role of defence counsel in sentencing circles could also apply to the front end of these processes as well. For example, in the Youth Justice Panel, if the client wants to plead guilty right away, the defence lawyer would clarify the implications of a guilty plea, and the client would proceed through the panel. If the client states that he/she is not guilty, the lawyer would examine the disclosure and discuss the evidence with the client; if appropriate, offer to see if the panel would accept the client; and, after obtaining this information, discuss alternative outcomes with the client. If the client still wants to plead not guilty, the defence lawyer would proceed with the case; otherwise the client would go through the panel without further legal aid involvement.
- Reductions in defence time requirements.
Two respondents identified changes that they felt helped decrease demands on defence counsel. The first identified Criminal Code changes (section 499.1) that enlarged police officers' options for releasing offenders (lessening the need for show cause hearings). The second felt that the Young Offenders Act had led to more diversion of youth matters, thus decreasing the need for defence counsel.
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