Legal Aid, Courtworker, and Public Legal Education and Information Needs in the Yukon Territory: Final Report
Although there are plans to expand the use of Justice of the Peace (JP) courts, the number of charges for JP court cases declined from 5507 in the year 1999 to 4970 in 2000, and to 3668 in 2001. A significant majority of the charges (60-68 percent) are territorial and municipal. Charges related to the administration of justice e.g., breaches, failure to attend, escapes) at 9-14 percent and impaired driving at 6 percent are other significant categories.
As shown in Table 14, over 90 percent of recorded pleas in JP court are guilty pleas, with a slightly higher ratio of guilty pleas in the communities than in Whitehorse. Without knowledge of individual cases, it is not possible to interpret whether this apparently high rate of guilty pleas is indicative of a need for increased assistance for individuals in JP court.
Another approach in considering the need for representation is to consider the consequences for individuals facing charges in JP court. Table 15 presents a variety of indicators of seriousness of disposition. It shows that:
- 9-12 percent of overall dispositions result in fines of $100 or more.
- 13 percent of overall dispositions result in jail sentences, the vast majority of which are under three months.
- 7-10 percent of overall dispositions result in probation orders, a majority of which are for six months or more.
- 3-4 percent of overall dispositions and slightly less than half of impaired cases result in a driving prohibition order.
For many individuals these consequences would be significant. Although they represent a small percentage of overall cases, in combination with the high rate of guilty pleas, the data would suggest an ongoing need for duty counsel and courtworkers to monitor representation needs of accused persons in the JP court. It is likely that the majority of the cases shown in Table 15 were heard in Whitehorse, and that clients received assistance from duty counsel and/or courtworkers. However, these data should also be considered in relation to respondent feedback presented in Section 5.3, especially in regard to plans for the expansion of the JP system.
In JP court in Whitehorse, duty counsel will assist any accused person on first appearance. They will also help any persons on subsequent appearances to obtain an adjournment to seek counsel. They may also be assigned as counsel for accused with more serious charges that are likely to be heard by a judge after first appearance. Involvement of legal aid in show cause hearings is described in Section 7.0. Duty counsel also assist clients in JP court in Watson Lake the day prior to the regular circuit court.
Anecdotally, 30 percent of accused in Criminal Code matters are unrepresented at first appearance in JP courts, mostly on first-time impaired driving charges. In territorial Motor Vehicle Act cases, 90 percent of litigants are unrepresented. These cases are not covered by legal aid.
Depending on their skill level and confidence, courtworkers will assist clients in JP court on plea, speaking to sentence and, in some cases, trials on motor vehicle and other territorial offences (e.g., Wildlife Act, Liquor Act).
Opinion was divided among legal professionals on the need for increased representation in JP courts. Slightly over half the respondents felt that the level of representation was satisfactory. A minority expressed significant concerns about the lack of representation. These concerns were based on their perceptions of the court, including impressions that some JPs lack skills commensurate with their responsibilities; that JPs are inclined to agree with Crown or RCMP; that serious offences are sometimes heard in JP court; that there is a lack of training of RCMP to properly perform a prosecution role in JP court; and that there is a tendency for JPs to detain persons even on minor charges so that they will plead guilty.
Concerns about the adequacy of representation should also be considered in relation to plans to expand the use of JPs as part of capacity building at the community level. There are current plans to do so in Watson Lake, Dawson City and Haines Junction, and, in the longer term (one year or more), to all communities. Where these plans involve dockets on the day prior to circuit court, YLSS could provide defence counsel as part of current circuit activity. Where they involve interim days (i.e., approximately half way between circuit dates), it would require additional legal aid funding to provide representation. The purpose of the JP court between circuits would be to deal with first appearances and pleas, and to set over matters that will require trial or more complex sentencing for the regular Territorial Court circuit.
It was suggested that a mid-circuit JP hearing need not necessarily involve a legal aid lawyer appearing in person. Duty counsel in Whitehorse could be connected by telephone or teleconference with the client and courtworker. The courtworker would, ideally, be with the client in the client's community, but could also be connected by phone from a third community.
The feasibility of this type of arrangement is obviously dependent on technical capacity and appropriate facilities in each community. Lawyers have also expressed concerns about the adequacy of assistance by telephone in regard to show cause hearings (see Section 6.2).
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