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

2.  How Court Structure, Geography and Culture Impact Demand for Legal Services, the Pattern of Service Delivery and the Quality of Services

2. How Court Structure, Geography and Culture Impact Demand for Legal Services, the Pattern of Service Delivery and the Quality of Services

This research issue arose initially out of a desire to assess impacts of the single-level Nunavut Court of Justice, but it was felt that, in each of the three territories, there were defining characteristics at the nexus of geography, culture and court structure that established the parameters of legal aid delivery. In the Yukon, these characteristics appear to be:

  • A large territory with one moderately sized town of approximately 20,000 population (Whitehorse), connected in most cases by road to approximately 13 small communities, most of which have populations of less than 1000.
  • A majority Aboriginal population in seven of the 13 smaller communities, and a majority non-Aboriginal population in Whitehorse. Overall, the First Nations population is 20 percent of the total population, going by the 1996 Census. [1]
  • A single resident court in Whitehorse, with all other communities served by circuit courts of varying frequency.
  • The territory's Supreme Court sits almost exclusively in Whitehorse.
  • An intention to increase the role of JP courts between regular circuit tours, in order to make the court system more accessible in outlying communities, increase efficiency of the circuit court sittings, and speed case processing.

Some of the impacts of these factors are addressed in greater detail in other sections, specifically: Section 3, circuit court issues; Section 5, JP courts; Section 6, civil law; and Section 10, cost drivers.

2.1 Data on Court Cases and on Clients Receiving Legal Aid Services

Table 2 presents data on criminal charges in all Yukon courts from January 1999 to June 2002. Table 3 shows approved criminal legal aid applications by YLSS for the last three fiscal years. There are limitations in comparing the two tables:

  • The court data is by calendar year and YLSS data is by fiscal year.
  • Court data are for charges, and YLSS data are for approved legal aid applications (which could cover several charges). The executive director for YLSS states that there have been cases involving more than 10 charges, and that, on average, there are approximately three charges per case. Cases in Table 3 that involve multiple charges are listed only by the most serious offence, so serious charges like homicide, sexual assault or robbery are more likely to be represented than a justice administration charge.
  • The categories are not identical between the tables.

It is also difficult to make meaningful comments about trends based on only three years' data.

Despite these major caveats, several broad observations are possible:

  • There has been considerable fluctuation in court charges over the three-year period, with an overall increase of 13 percent in the second year. The increase in approved criminal legal aid applications mirrors this increase in charges from year one to year two (14 percent). The decline in court charges in 2001 is also reflected in a decline in approved legal aid applications in 2001-2002.
  • Even without exact comparability of data between the tables, it is fairly clear that legal aid is covering the vast majority of the more serious personal offences (homicide, sexual assault, robbery), and main high volume property offences (theft over and under $5000, breaking and entering, possession of stolen property). Coverage of overall justice administration offences is more difficult to determine because the charges are frequently among other more serious charges. Impaired driving cases frequently involve two or more charges. A rough estimate of coverage of these charges by legal aid is 50 percent. In addition, many other accused persons would be assisted by duty counsel in these cases (see note 4 for Table 3).

Table 2: Criminal Charges by Year in all Yukon Courts (Territorial and Municipal Acts Excluded)

Table 3: Approved Criminal Legal Aid Applications

2.2 Changes in Patterns of Service Delivery

Respondents described a number of actual or impending changes in the delivery structure of court, legal aid and courtworker services. In some cases they have cost implications for legal aid. The changes are described below.

2.2.1 Delivery of Court Services

Domestic Violence Treatment Option Court (DVTO).
As a specialized component of the Territorial Court, this court began hearing spousal assault cases in April 1999. It was meant to address high rates of collapse in spousal assault cases by providing treatment options for accused persons over a four to five month period for charged persons willing to participate in the program. Defence counsel are required to attend pre-court meetings related to the cases and have been invited to planning and policy meetings. The net impact on defence time is felt by respondents to be roughly the same as or slightly higher than court time expended on such cases prior to the initiative (see also comments in Section 11).  
Youth Justice Panel.
Established in early 2001, the objective of this initiative in Whitehorse is to divert youth matters out of court. As with the DVTO, the implication for defence counsel is that case preparation is different (i.e., more "up front" activity) but only slightly more demanding of time than comparable cases prior to the establishment of the Panel (see also comments in Section 11).  
Restorative justice and sentencing Circle initiatives.
Sentencing circle initiatives began in the Yukon in the early 1990s and, in the subsequent decade, other forms of restorative justice such as diversion developed in many communities. Although diversion procedures require little defence counsel time, sentencing circles demand considerably more time (e.g., six hours) than traditional sentencing procedures (approximately 45 minutes). However, respondents report that in recent years the frequency of circles appears to have declined. This was attributed to factors such as declines in funding for justice committees, the perception that circles are "tougher" on offenders than traditional courts, and the fact that many of the specific needs of Aboriginal peoples in the sentencing process are being considered in the conventional court system. Nonetheless, given that circles occur more frequently in the overall caseload in the Yukon than in southern jurisdictions, there is a commensurately greater demand on legal aid resources. As will be discussed in Section 11, sentencing in the Yukon Territory still involves considerable time, with or without sentencing circles.
Increase in the use of justices of the peace.
It is the intention of the Territorial Court to expand the use of JPs in several communities outside of Whitehorse. This will likely place demands on the legal aid and/or Courtworker systems to provide assistance to individuals between regular Territorial Court circuits. This issue is discussed in Section 5.

2.2.2 Delivery of Legal Aid

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. This development flowed directly from the recommendations of an Operational Review conducted in March 2000.[2] In the previous year YLSS had lost four staff lawyers who were considered overworked and under-compensated. The report recommended, among other things, the hiring of a permanent executive director and an increase in legal staff from 4.5 to 6.5 lawyer positions, together with additional support staff.

At mid-October 2002, the YLSS had a complement of 5.5 lawyers, had hired senior staff counsel to act as a mentor for junior staff lawyers, and had a full-time executive director as well as an in-house executive assistant. Furthermore, current guidelines make staff lawyers and support staff salaries competitive with British Columbia Legal Services Society (BCLSS) rates; subsequent salary increases will be linked to Yukon Government Employees Union negotiated rates.[3] Other recommendations from the Operational Review have been or are in the process of being addressed. Some, such as the strengthening of family law coverage, are discussed in subsequent sections of this report.

There are two general points flowing from the Operational Review that are relevant in the context of the current report. The first is that the crisis that led to the Operational Review is no longer felt as urgently within YLSS because Yukon Justice has significantly increased its contribution to the Society. As shown in Table 4, the YTG's commitment has approximately doubled since 1996/1997 and 1997/1998, while the federal contribution has remained the same.

Table 4
Federal and Territorial Contributions to YLSS
Fiscal Year Federal Contribution Territorial Contribution Total
1996/1997 428,000 (47%) 475,057 (53%) 903,057 (100%)
1997/1998 428,000 (50%) 428,000 (50%) 856,000 (100%)
1998/1999 428,000 (46%) 503,000 (54%) 931,000 (100%)
1999/2000 428,000 (34%) 827,300 (66%) 1,255,300 (100%)
2000/2001 428,000 (32%) 928,000 (68%) 1,356,000 (100%)
2001/2002 428,000 (31%) 944,541 (69%) 1,374,541 (100%)

As a result, the YTG now shoulders approximately 69 percent of the YLSS budget, compared to 50-53 percent four and five years ago. The needs that led to and were addressed by the Operational Review were, by general consensus, about the basic viability of the legal aid system in the YTG. The fact that the essential structural needs have been met by the YTG's decision to increase funding should not deflect from an examination of the federal government's role in supporting that structure.

The second point concerns the future of the private sector in the legal aid system. The Operational Review suggested that an optimum balance for the overall system would be 80 percent staff lawyers and 20 percent private bar contracts or certificates. However, even that balance may be difficult to maintain. There are only three firms of significant size (six to nine lawyers) in Whitehorse, only one of which does a small amount of legal aid. Of five other firms who do legal aid in the Yukon (only one of which does civil legal aid), all are single-lawyer firms operating from residences. Because of the lack of overhead, these firms are better able to survive on the legal aid tariff or on contracts for duty counsel.

The majority of respondents conceded that the strengthening of the staff system was necessary and inevitable given the staffing and morale crisis that preceded the Operational Review, but there remain some concerns over the viability of the private criminal bar as a legal aid resource. These concerns arise not only from the fact that an increase in the staff lawyers complement lessens the availability of legal aid cases for the private bar, but also because the tariff is approximately half of what is charged in private practice. These respondents claimed that, increasingly, senior counsel in firms will not do legal aid work themselves and will discourage or prohibit junior counsel from taking on legal aid cases. As a consequence, the private bar will not gain or maintain experience in criminal law in the Yukon. They felt that, to a greater degree than in southern jurisdictions, legal aid is the creative driving force of criminal law, and that a vital and active private criminal bar should be part of that stimulus. Decisions that might lessen the capacity of the private bar to participate in legal aid delivery should be carefully considered. They also felt that the private bar may become unavailable to act as second counsel in the event of conflict on circuits; that this would also be a problem in family cases; and that pressures on the staff system resulting from low private bar participation will lessen the effectiveness and quality of representation.

2.2.3 Delivery of Courtworker Services

In 1995, as a result of devolution agreements, control of courtworker services passed in most cases from the Council of Yukon First Nations to individual First Nations. This means that there is now no overarching co-ordinating mechanism within the Yukon Territory for hiring and training courtworkers, determining their roles, and/or managing and overseeing the delivery of their services. The implications of these changes are described more fully in Section 4.0.

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