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 (cont'd)

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

2.3 Trial by Jury

Although the frequency of trials by jury is a significant driver of costs in the Northwest Territories, Table 5 shows that in the Yukon Territory, over the past three years, only a third of elections have been for trial by jury. Furthermore, the actual number of jury trials has not exceeded five in any of the past three years, and these have not necessarily all involved legal aid.

Table 5
Supreme Court Criminal Trials by Trial Type
Calendar Year
1999 2000 2001 All Three Years
Frequency Frequency Frequency Frequency % of Total
Judge alone 10 6 9 25 68%
Judge and jury 4 5 3 12 32%
Total 14 11 12 37 100%

Notes:

  1. Source: Court Services, Department of Justice, YTG.
  2. Trial type determined by the accused's election.
  3. Year determined as calendar year of first trial appearance.

2.4 Unmet Needs

Approximately half the justice system respondents (staff and private lawyers, Crowns and judges) stated that the financial eligibility cut-offs for legal aid coverage are too low and are especially difficult for the working poor.[4] These respondents felt that this situation contributed to an increase in unrepresented litigants in courts.

While acknowledging that unrepresented litigants are a subject of ongoing concern and discussion within the justice system, the Executive Director of YLSS feels that this is an issue primarily in civil cases (see Section 6). He states that the YLSS has exercised greater discretion in determining eligibility in the current year. Although the financial eligibility cut-off points have remained the same since the Operational Review, a number of files have been reviewed retroactively, and assistance provided to clients where they may have had misunderstanding as to their eligibility. Furthermore, the YLSS employs what it calls a "soft cap" on financial eligibility. This allows the Board to review applications that are over the cut-off points, but where there may be circumstances that would effectively preclude a client being able to pay for his/her own representation (e.g., if their work is seasonal, or if they are carrying a high debt load for essential items). The Executive Director maintains that most applicants who are denied legal aid are usually considerably above the cut-off points. Although the "soft cap" is not advertised publicly, applicants who are slightly above the cut-off point are encouraged to request a review of their application. Thus, out of 836 applicants for criminal legal aid in 2001-2002, only 18 (i.e., 2 percent) were refused and, of these, only nine were refused for financial reasons.

Other needs identified by respondents include:

Increased funding for family matters.
This need was also identified in the Operational Review, and a central recommendation was that the expansion of family law services be prioritized over any other expansion of services. Increased funding provided by Yukon Justice has allowed YLSS to undertake some permanent (as opposed to interim) custody trials (six as of April 2002) and implement a Support Variation Maintenance Project. YLSS has also funded some permanent wardship trials. The fundamental importance of addressing these types of needs was emphasized by respondents, not all of whom were aware that YLSS had begun to implement coverage in this area.  
Difficulty in obtaining summary advice.
Some respondents noted different practices among duty counsel in regard to providing summary advice to individuals prior to first appearance. Some duty counsel felt they should respond to all summary advice needs of individuals to the best of their ability while they were in court, while others would only help those who were eligible for legal aid. This issue is dealt with again in relation to PLEI in Section 9.0. As noted in Section 3.2, this issue is less of a problem on circuits.  
Mental health cases.
The tariff was considered inadequate because it does not take into consideration the need to attend client case management meetings nor requirements for expert witnesses.  
Coverage for expert witnesses.
A lack of funds to cover the costs of expert witnesses - for such issues as impaired driving, paternity testing, and psychological assessments - was considered a problem in the past by many respondents. Most, however, felt that the increase in YTG support had alleviated the problem in the past year.

[4] It is possible that a larger proportion of justice system respondents felt this way. Respondents were simply asked about unmet needs, rather than specifically asked about the financial eligibility criteria. On the other hand, one respondent felt that some legal aid clients should accept more responsibility in terms of representation. The respondent felt that in some drug cases the clients had undeclared resources, and that, in general, clients should be asked to make at least some contribution toward the cost of representation, even if minimal.

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