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

7. Current Scope of Activity Prior to First Appearance

7. Current Scope of Activity Prior to First Appearance

Staff and private lawyers (on contract) are assigned duty counsel responsibilities for four weeks at a time. These duties include:[5]

  • Immediate summary advice by telephone to arrested and detained persons throughout the Yukon (whether youth or adult and whether under criminal, mental health or other legislation) while on-call during week-ends (from 5:00 p.m., Friday, until 8:30 a.m. Monday), holidays (5:00 p.m. the previous day until 8:30 a.m. the following day), and weeknights (from 5:00 p.m. until 8:30 a.m.);
  • Representation of all detained persons brought before a Justice of the Peace, Territorial or Youth Court sitting in Whitehorse for hearing into the matter of judicial interim release;
  • Summary advice to all persons appearing without counsel at the Adult and Youth criminal docket of the Territorial Court sitting in Whitehorse and seeking adjournment to make application for legal aid; and
  • Summary sentencing where matters can be completed within a reasonable time frame within the parameters of Adult and Youth docket court.

Courtworkers also receive calls from detained persons who prefer to talk to a courtworker rather than a lawyer or who can't reach a lawyer. In these situations courtworkers' roles may include:

  • Explaining the charge and/or reasons for arrest and detention;
  • Explaining the purpose and process of show cause;
  • Helping clients to prepare for the show cause;
  • Referral of clients to legal aid;
  • Contacting family and friends, and explaining release conditions; and
  • Listening to clients and trying to diffuse their anger.

Although YLSS provides for a lawyer to do show cause hearings in all cases, one senior courtworker would very occasionally do a show cause hearing if the client was unwilling to work with a lawyer (she has not undertaken any such cases in 2002).

7.1 Statistical Data

Show cause hearings are not recorded as a separate activity in duty counsel reports, so these data are not available. Duty counsel assisted 587 clients in 1999-2000, 800 in 2000-2001, and 1064 in 2001-2002,[6] but no breakdown of data by client or case is available.

7.2 Issues Prior to First Appearance

Respondents identified the following issues affecting the client or representation of the client:

Contacting counsel during day hours.

As shown in Section 7.0, duty counsel are on-call in the evenings but have responsibilities in court during the day. Almost all respondents said there was almost no problem contacting counsel from cells at night, but there was frequently difficulty during the day. Often RCMP will phone another staff lawyer, or even a private lawyer during the day, but this is not a recoverable expense. Some respondents advocated a type of Brydges hotline for calls during the day.

Show cause hearings.

Although Court Services does not keep statistics on show cause hearings, respondents indicated that the vast majority of show cause hearings are heard in Whitehorse before a justice of the peace. This pattern occurs for one or more of the following reasons: 1) in a given community there is no JP who can conduct a show cause hearing; 2) there is no facility in which to detain the accused person on an around the clock basis, and/or 3) the lawyer is unwilling to conduct a show cause by phone (see below). If a telephone show cause hearing cannot be arranged and there is a strong likelihood that the person will continue to be detained, he/she will be flown to Whitehorse for the show cause. Detained persons who are subsequently released are often without resources, but have to make their way back to their communities at their own expense. This situation is clearly distressing for the charged individual, and, in some cases, is felt to lead to further crimes. The problem is still under active consideration by several parties in the social and criminal justice systems, but is largely beyond the purview of the legal aid system.

Approximately 10 percent of show cause hearings are done by a telephone conference call involving the JP (either in the community or, more frequently, in Whitehorse), RCMP, Crown, defence counsel and the accused. Some respondents felt this system was inadequate for proper representation because disclosure was often not made until moments before the call; because it was not possible to speak separately with the client; and because it was difficult to assess client comprehension by phone. One respondent said he would refuse to do telephone show causes, and would insist that the client be brought to Whitehorse.

Delay in receiving disclosure.

Several respondents claimed that Crown disclosure often occurs at the last moment, leaving defence inadequate time to consult with and receive information from clients, and necessitating an adjournment of the show cause.

Lack of summary advice.

It appears that duty counsel offer differing levels of client support to persons who may already have appeared in court (i.e., are not at first appearance). Some will offer whatever summary advice they can to any accused person who requests services, and make referrals, if appropriate, to YPLEA. They feel that if defence counsel are already in court and are able to assist an individual in other ways, they have an ethical obligation to do so (see also comments regarding the wider range of assistance offered on circuits, Section 3.2). Others take a narrower view and limit their advice and assistance to case-related matters for arrested and detained persons, representation in show cause hearings, and assistance with adjournments pending a legal aid application.

Choice of counsel.

One respondent felt that clients do not get any choice of counsel, because duty counsel will automatically follow through with clients they have served as duty counsel, even if an individual has used the services of another lawyer on a previous occasion. The YLSS executive director states that, in fact, if a client has previously used and prefers a given lawyer who does legal aid work, he/she will be assigned that lawyer whenever possible.

Lack of telephone in duty counsel room in Whitehorse.

One respondent felt that it was an impediment not to have a phone in the Whitehorse duty counsel room. It can be difficult to manage logistics, especially if the duty counsel lawyer has cases in both JP and Territorial courts.

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