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

4. Courtworkers

4. Courtworkers

4.1 Structure

In 1993, the federal Government, the Yukon Territory Government and the Council for Yukon Indians (CYI) signed an Umbrella Final Agreement (UFA), and five individual final agreements with four First Nations were signed in 1995. The UFA provided the basis for individual land claim settlements with each of the fourteen Yukon First Nations and for the negotiation of self-government agreements with these First Nations. Part of the self-government agreements provided First Nations with law-making powers in the area of the administration of justice.

Prior to 1995/1996, the CYI administered the courtworker program for the Yukon Territory. Under devolution of some justice functions, individual First Nations took over administration of courtworkers serving their communities from the CYI and its successor organization, the Council of Yukon First Nations (CYFN). This means that, on the one hand, there is community control over the hiring and functioning of the courtworker. On the other hand, from a territorial justice perspective, there is less of a unified vision of the roles and training needs of the courtworker than existed in the first half of the 1990s.

Table 8 outlines the communities that currently have courtworkers. The CYFN has the largest program with a manager and two full-time courtworkers in Whitehorse, also serving six outlying communities. Other communities have part-time courtworkers, two of whom act as community justice co-ordinators in the other part of their position. One courtworker serves Carmacks, Pelly and Mayo on a half-time basis.

Table 8
Courtworker Locations in the Yukon Territory
Administrative Council or First Nations Number of Courtworkers Communities Served
Council of Yukon First Nations 2 plus manager Whitehorse, Kwanlin Dun, Haines Junction, Beaver Creek, Burwash, Teslin, Carcross
Northern Tutchone Council .5 Carmacks, Pelly, Mayo
Tr'ondek Hwach'in Han Nation .5 (other half of position is as a community justice co-ordinator) Dawson City
Kaska Tribal Council 1 Watson Lake
Ross River Dena Council .5 (other half of position is as a community justice co-ordinator) Ross River
Vuntut Gwitchin First Nation .5 Old Crow

4.2 Federal and Territorial Contributions

Table 9 shows the balance between federal and territorial contributions to courtworker programs. There is considerably more parity in the federal contribution level for courtworkers than for legal aid (YLSS), as was shown in Table 4. With the exception of 2000/2001, federal contributions have remained at roughly 50 percent of total contributions for the past eight years.

Table 9
Federal and Territorial Contributions to Native Courtworker Programs
Fiscal Year Federal Contribution Territorial Contribution Total
1994/1995 153,400 (50%) 153,300 (50%) 306,700 (100%)
1995/1996 138,800 (50%) 138,900 (50%) 277,700 (100%)
1996/1997 164,200 (51%) 158,000 (49%) 322,200 (100%)
1997/1998 165,000 (47%) 185,900 (53%) 350,900 (100%)
1998/1999 170,800 (50%) 170,700 (50%) 341,500 (100%)
1999/2000 171,500 (51%) 167,000 (49%) 338,500 (100%)
2000/2001 136,100 (40%) 204,800 (60%) 340,900 (100%)
2001/2002 146,400 (50%) 146,300 (50%) 292,700 (100%)

Source: Department of Justice, YTG.

4.3 Courtworker Roles

Depending on the community, the courtworker's skills and confidence, the mode of operation of defence counsel, and the relationship the courtworker has with defence counsel, the courtworker's role may include any of the following:

  • Bridging functions, i.e., assisting the legal aid lawyers by:
    • locating clients and witnesses to set up appointments with defence counsel;
    • helping clients fill out legal aid applications; and
    • informing lawyers of the client's background and circumstances and acting as a cultural interpreter.
  • Court functions, i.e., assisting clients prior to or during court appearances by:
    • acting as their agent;
    • assisting with plea, speaking to adjournments, fixing trial dates, in some cases helping with the trial itself, and speaking to sentence;
    • acting as a support to client and family; and
    • communicating with Crown counsel in regard to client charges.
  • Participation on relevant committees and boards.
  • Working with First Nations in the communities in regard to:
    • providing information on court outcomes of clients;
    • obtaining information on programs that may assist the clients; and
    • Aboriginal justice processes and programs.
  • Various administrative tasks.

Respondents in the legal profession (staff and private lawyers, judges, Crowns) most clearly valued the bridging functions played by courtworkers. They had major reservations about court functions such as plea and, especially, representing accused at trials. There were fewer reservations about courtworkers speaking to sentence, and some respondents felt the courtworkers' role in gathering client, family and community information was critical in creating effective Gladue sentencing. In fact, one legal professional said that, at some future point, some clients could pay user fees for a courtworker to speak to sentence on their behalf, a procedure that exists in some U.S. jurisdictions. However, respondents emphasized that courtworker skills, personality and experience varied considerably. Courtworkers themselves were equally frank about tasks they felt least comfortable with, and expressed a strong desire for more training.

If plans go ahead to increase the role of JP courts between and/or just prior to circuits (see Section 5.0), there may be more pressure on courtworkers to undertake more court functions. Training needs for courtworkers in regard to court functions will become even more urgent.

4.4 Client Data

With varying degrees of consistency, courtworkers have maintained monthly aggregate data sheets on client demographics, previous convictions, charge types, and courtworker time expenditures. As shown in the notes to Table 10, the data submitted to (and/or on record with) the YTG Department of Justice is spotty and inconsistent or non-existent for some of the community sites, although it appears complete for Whitehorse. No data are available for Ross River or Old Crow. The inconsistency of data for other sites can be explained in part by staff turnovers (and, therefore, periods of inactivity) or activity only during a circuit month, but some reports are simply missing.

The main drawback of inconsistent data collection is that the overall counts are understated. The understatement is likely in the order of 5-15 percent, as the absence of data is generally from smaller communities. It should also be emphasized that the data refer to client contacts rather than clients per se, so the actual number of clients would be smaller, and the exact number is not known. The data are more useful in describing relative proportions rather than overall numbers.

General observations that can be made from Tables 10 to 13 are:

  • (Table 10) Approximately three quarters of courtworker client contacts with adults are male; however, among youth the proportion of males is lower (between 53 and 60 percent).
  • (Table 10) Approximately 85 percent of courtworker client contacts are adults.
  • (Table 11) Approximately 85 percent of adult clients have prior convictions versus 64-81 percent of youth. The increase in prior conviction rates is significant among youth, but it is not possible to determine whether it is a trend.
  • (Table 12) While the profile of charge type that courtworkers deal with is similar to that handled by legal aid lawyers, as shown in Table 3, it differs in two respects: impaired driving cases represent a higher percentage of courtworkers' caseload than they do of legal aid lawyers'; and approximately 20 percent of courtworkers' caseload comprises territorial offences, which legal aid does not cover.
  • (Table 13) A remarkably high percentage of recorded courtworker time (between 26 and 41 percent) is ascribed to administrative functions. This may reflect excessive administrative burdens, categories that do not capture accurately the essence of courtworker activities, inaccurate recording practices, or inefficient use of time. If time management is an issue, it could usefully be addressed within ongoing training sessions (see next section).
Table 10
Demographics of Clients Assisted by Courtworkers
1999-2000 2000-2001 2001-2002
Number % Number % Number %
Adult
Male 776 75% 781 71% 1368 74%
Female 262 25% 312 29% 479 26%
Total 1038 100% 1093 100% 1847 100%

Youth
1999-2000 2000-2001 2001-2002
Number % Number % Number %
Male 102 53% 117 54% 147 60%
Female 92 47% 100 46% 96 40%
Total 194 100% 217 100% 243 100%

Combined
1999-2000 2000-2001 2001-2002
Number % Number % Number %
Male 878 71% 898 67% 1515 72%
Female 354 29% 412 33% 575 28%
Total 1232 100% 1310 100% 2090 100%

Notes:

  1. Data source: aggregation of monthly statistics sheets submitted to Department of Justice, YTG. Counts refer to client contacts rather than clients. If clients are seen more than once, they may be counted several times.
  2. Data were not consistently available for several locations, so cannot be considered reliable in terms of overall number. However, relative proportions can be considered reliable.
  3. For 1999-2000, data were aggregated for all of the Yukon by the Department, but neither specific sites nor months were identified. For 2000-2001 data were available as follows: Whitehorse - all months. Trondek Hwetchin - Mar-June 2000, Oct-March 01. Northern Tutchone (Mayo, Pelly, Carmacks) - May-Aug 2000, Oct 2000, Dec-Mar 2001. Carcross - May, June, Nov 2000. Teslin - May 2000. Liard First Nation (Watson Lake) - Oct 2000-Mar 2001. Haines Junction - Sept and Nov 2000.
  4. For 2001-2002 data were available as follows: Whitehorse - all months. Teslin - July, Oct 2001 Carcross - June, Sept, Nov 2001 Liard First Nation (Watson Lake) - Apr to Sept 2001 Haines Junction/Burwash - May, July, Sept 2001.

4.5 Supervision, Communication, Co-ordination and Training

For the most part, defence counsel and courtworkers characterized their personal relationships as positive. However, there is no supervisory relationship between defence counsel and courtworkers. The provision of information or advice by lawyers to courtworkers is generally on a reactive basis rather than a proactive one. Furthermore, most respondents in the legal profession had little knowledge of what training courtworkers were receiving, if any.

There was a strongly expressed feeling from most legal professionals that there should be more formal co-ordination between the courtworker structure and YLSS. Although this suggestion was not formally raised in the courtworker interviews, it is clear that the community-based courtworker delivery and administrative structure described in Section 4.1 evolved out of strong political convictions about cultural and community control. It is thus likely that any formal intent that would reduce the independence or perception of independence of courtworkers as community-based roles would be resisted.

The conviction held by both legal professionals and courtworkers about the need for more courtworker training is a more fruitful starting point for increased collaboration. This was also emphasized in the focus group, which rated the training of courtworkers as a top-level need. Annual training is usually co-ordinated by the Whitehorse courtworker office for all courtworkers, focussing on topics that are seen as mutually beneficial. In the current year, training funds were pooled to allow most of the courtworkers to attend the March conferences of the National Aboriginal Courtworkers Association, where the last three days were devoted to training. One courtworker from the Whitehorse office also attends annual training sessions conducted for justices of the peace. Courtworkers from outlying communities have also been invited to this training, but have reportedly been unable to attend for lack of travel funds. The Whitehorse office offers a one-week job-shadowing arrangement for new courtworkers from outlying communities at no cost, but has no mandate, nor funds, to develop more formal training procedures.

Several respondents advanced the idea that courtworkers could be trained and certified to undertake court work either in terms of specified levels (e.g., courtworker level 1, level 2, level 3) or of functions (e.g., speaking to sentence, plea discussions, show cause hearings). This would clarify the roles that they have been trained to undertake in court (as opposed to the bridging roles described in Section 4.3); provide other justice personnel with greater confidence in their ability to assume those roles, and provide incentive and reward to the courtworkers themselves. It would also help in transitional periods of staff turnover. A new courtworker replacing a courtworker level 2 or 3 might start as a courtworker level 1. This designation would help limit the expectations of activities he/she could perform, reduce the pressure to perform beyond his/her competence, and allow time to consolidate skills before receiving training for a higher level.

In the focus group from this study, it was also suggested that crown counsel and/or a legal aid lawyer could train individual courtworkers in their own communities on a periodic (e.g., quarterly) basis. This approach could supplement other approaches, but would have the advantage of addressing specific needs and skill levels of the individual courtworker. It was felt that this could be feasible if crown or legal aid lawyer travelled to the circuit community a day earlier.

Development of systematic training should also be coupled with a clearer shared vision of the role courtworkers are expected to play. Again, this will be a complicated task, given potentially different visions within each First Nation. Some courtworkers already feel the need to respond to requests from unrepresented criminal and civil litigants who are ineligible for legal aid. If the JP court activity increases in the future and there are no resources for legal aid or duty counsel at this level, there may be more pressure on courtworkers to respond to requests for in-court assistance.

Date modified: