Legal Service Provision in Northern Canada
Summary of Research in the Northwest Territories, Nunavut, and the Yukon

3. BACKGROUND INFORMATION

3.1 SOCIO-ECONOMIC ISSUES

3.2 SYSTEMS FOR THE PROVISION OF LEGAL SERVICES

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3. BACKGROUND INFORMATION

Although the three northern territories are often perceived as homogeneous by the rest of Canada, there are differences between them that have an impact on the demand for and provision of legal services. This section provides background information on socio-economic issues and on the existing systems for the provision of legal services in the three territories.

3.1 Socio-economic issues

3.1.1 Demographics

The demographic issues that most affect legal service delivery (demand and type) are population age, family structures, education, and language and ancestry.

• Population age - All three jurisdictions have young populations in comparison with the rest of Canada,¹ and the N.W.T. and Nunavut have younger populations than the Yukon. As younger people are more likely to require legal services than older people, this affects the demand for legal services. Nunavut has the youngest population of the three territories, which is currently affecting demand for legal services for young offenders. As this population bulge ages, demand for legal services for adults is also expected to rise.
   
• Family structures - The Yukon has a higher divorce and/or separation rate than any other Canadian jurisdiction,² which has implications for the demand for family law services. All three jurisdictions also have a higher number of single-parent families than the rest of Canada, with Nunavut having the greatest number.³ While this does not directly affect demand for legal services, it does exacerbate the impact of unmet need. For example, if a lone parent is remanded out of his/her community while waiting for a bail hearing, or is sentenced to a longer jail term due to under-representation, his/her children experience greater disruption than children of families with two parents.
   
• Education - All three jurisdictions have lower rates of basic educational attainment than the rest of Canada. For example, 23 percent of Canadians have attained only a high school diploma. The comparative figures for the Yukon and the N.W.T. (including Nunavut) are 18 percent and 13 percent, respectively.⁴ Individuals with a lower level of educational attainment may require additional explanations of the legal process and of any documentation involved, which adds to the workload of counsel and courtworkers.
   
• Language and ancestry - There are significant differences between the three jurisdictions in terms of the ancestry and mother tongue of the populations. The majority of the population of Nunavut are Inuit (22,720 inhabitants out of approximately 29,000), with Inuktitut or Inuinnaqtun as the language used in the home for 65 percent of Nunavut Inuit.⁵ Approximately half of the population of the Northwest Territories is Aboriginal (48 percent), and Aboriginal people are the majority in 28 of the 31 communities outside of Yellowknife (Yellowknife's population is primarily non-Aboriginal). However, the majority of the population of the Northwest Territories have English as their mother tongue. The Yukon is 20 percent Aboriginal, with Aboriginal people the majority in seven of the 13 smaller communities outside of Whitehorse (Whitehorse's population is primarily non-Aboriginal). Again, the majority of the population have English as their mother tongue. In jurisdictions and communities where the majority of the population have English as a second language, there are often additional requirements for translation and interpretation that affect the delivery of legal services. Also, in some cases, significant additional efforts must be made by legal services personnel to cross the cultural divide and ensure that the accused understand the substance of the process, as well as the words used to describe it.

3.1.2 Geography and access

All three jurisdictions have large, sparsely populated land areas in comparison with the rest of Canada. Access to communities, which has a significant impact on the method of legal service provision and associated costs, varies among the jurisdictions:

• In the Yukon, the majority of communities are accessible by road.
   
• In the Northwest Territories, some communities can be accessed by road, but the smaller communities in the northern part of the territory are generally accessible only by plane.
   
• In Nunavut, all communities are accessible only by air. In some cases, these communities are extremely remote and very difficult to reach.
  

3.1.3 Alcohol and FAS/E

Respondents in all three jurisdictions highlighted alcohol consumption or fetal alcohol syndrome/effect (FAS/E) as issues affecting the demand for legal services:

• The Northwest Territories has the highest alcohol consumption rate in Canada (133.8 percent of the Canadian average).⁶
   
• The Yukon also has a very high alcohol consumption rate (119 percent of the Canadian average).⁷
   
• The incidence of FAS/E is believed to be above average in all three jurisdictions,⁸ but was specifically identified as an issue by respondents in Nunavut.

Excessive alcohol consumption can trigger additional demand for legal services, as alcohol is often a contributing factor in criminal behaviour such as assault.⁹ FAS/E is also believed to affect the demand for legal services, as individuals affected by FAS/E often lack the capacity to understand the consequences of their actions; may behave impulsively; and can have difficulty resolving problems and understanding right and wrong or complex issues.¹⁰

3.1.4 Crime and policing

The three northern territories have significantly more police officers per resident than any other jurisdiction in Canada.¹¹ The three territories also lead the country in crime rates.¹²

• The Northwest Territories has the highest crime rate in Canada, followed by Nunavut and the Yukon, which were tied for second place.
  
• Nunavut has the highest violent crime rate in Canada, followed by the Northwest Territories and the Yukon.
  
• Nunavut has the highest rate of assault in Canada (5,419.2 per 100,000 people in 2001, compared with 769.5 per 100,000 people for the country as a whole), followed by the Northwest Territories (4,234 per 100,000 people) and the Yukon (3,212.3 per 100,000 people).¹³
  
• Nunavut has the highest rate of sexual assault in Canada (788.4 per 100,000 people in 2001, compared with 78.6 per 100,000 people for the country as a whole), followed by the Northwest Territories (359.8 per 100,000 people) and the Yukon (254.3 per 100,000 people).¹⁴
  

3.1.5 Lack of services at the community level

Respondents in all three jurisdictions also identified the lack of services at the community level as an important contextual issue. Among the primary concerns raised were the lack of remand facilities, the lack of counselling facilities (for example, for substance abuse issues or anger management), and the lack of mediation services and other non-litigious alternatives to the justice system.

3.2 Systems for the provision of legal services

3.2.1 Court structures

The court structures in place in the Northwest Territories and the Yukon are very similar, while that of Nunavut is significantly different.

The Northwest Territories and the Yukon have court structures similar to those of other Canadian jurisdictions, including a Territorial Court, a Supreme Court, Justice of the Peace (JP) courts, and a separate court for young offenders. Both jurisdictions have a combination of resident and circuit courts. In the Northwest Territories, there are resident courts in Yellowknife, Hay River, and Inuvik, and in the Yukon there is a resident court in Whitehorse. The role of JP courts differs somewhat among the territories. In the Northwest Territories, JP courts play a significant role in addressing territorial offences and summary criminal matters. In the Yukon, the current role of JP courts appears to be less extensive in communities outside Whitehorse. However, there is an intention to increase the role of JP courts to relieve pressure on the legal system and to build capacity in communities.

The court structure in Nunavut is unique in Canada, in that there is only one level of court, the Nunavut Court of Justice (NCJ). The NCJ deals with all offences: territorial, supreme, and young offender. There is a resident court in Iqaluit - all other communities are served by circuit courts. JP courts currently play a significant role in the Nunavut legal system, and this role is expected to expand in order to relieve pressure on the NCJ.

3.2.2 Resources and methods for legal service provision

Each jurisdiction has an organization responsible for legal service provision. However, the responsibilities and mandates of these organizations differ somewhat between the jurisdictions, as do their structures and resources (both human and financial). The mandates of these organizations are summarized in Table 3.1.

• The Northwest Territories - Legal aid services are provided by the Legal Services Board (LSB), which has two offices, with headquarters located in Yellowknife and other clinic in Inuvik. The LSB is responsible for the provision of legal aid, the management of courtworker (CW) services, and the provision of public legal education and information (PLEI).
   
• Nunavut - Legal services are provided by the Nunavut Legal Services Board (NLSB), which is headquartered in Gjoa Haven and has four additional offices in three different regions (each region has its own Board structure, in addition to the territorial Board). The NLSB is responsible for the provision of legal aid, the management of CW services, and the provision of PLEI.
   
• The Yukon - Legal services are provided by the Yukon Legal Services Society (YLSS), which has one office, in Whitehorse. The YLSS is responsible for the provision of legal aid. CW services are provided by some of the individual First Nations in the territory and by the Council of Yukon First Nations (CYFN), a significant difference between the Yukon and the other two Northern jurisdictions. PLEI is provided by the Yukon Public Legal Education Association (YPLEA), a separate organization.

Table 3.1 - Legal Service Organization Mandates

Organization (Jurisdiction)	Legal Aid Provision	Courtworker Management	PLEI
LSB (N.W.T.)	Yes	Yes	Yes
NLSB (Nunavut)	Yes	Yes	Yes
YLSS (Yukon)	Yes	No	No

Table 3.2 compares the human and financial resources available to the legal service provision organizations in each jurisdiction.

Table 3.2 - Resources for Legal Service Provision

Jurisdiction	Human Resources (2002-2003)	Total Budget (2001-2002)**
Northwest Territories	5 staff counsel 9 full-time and 2 part-time CWs	$3,892,668
Nunavut	8 staff counsel 11 part-time CWs 3 full-time CWs	$3,390,000
Yukon	5.5 staff counsel 2 full-time and 5 part-time CWs*	$1,374,541

* Courtworkers in the Yukon are employed by First Nations organizations. The Council of Yukon First Nations employs 2 full-time courtworkers. The CYFN courtworkers are based in Whitehorse. Five other First Nations employ courtworkers on a part-time basis to serve five communities.
** Salaries and operating expenses

3.2.3 Demand for legal services

The only statistical measure available to assess demand for legal services is the number of legal aid applications received. Table 3.3 presents the number of approved applications for legal aid (youth, family and civil, and criminal) for each jurisdiction from 1999 to 2002. It should be noted, however, that, as a measure of demand, legal aid applications are not ideal and may substantially underestimate overall demand for services. The primary reason for this underestimation is the practice of presumed eligibility (in Nunavut and the N.W.T.) and "practical service delivery" (in the Yukon). This significantly reduces the need for clients to complete legal aid applications, as the majority of legal services are provided by duty counsel during circuit court sittings without requiring that a legal aid application be filled out. (See subsection 3.2.4 for a detailed explanation of the effect of these practices.)

Table 3.3 - Approved Applications for Legal Aid (1999-2002 inclusive)

Jurisdiction	Youth	Family/Civil Law	Criminal
Northwest Territories	134	1,086	1,438
Nunavut	55	497	916
Yukon	88	782	2,344

3.2.4 Limitations on legal service provision

The limitations placed on legal service provision differ between the three jurisdictions.

• Presumed eligibility - A policy of presumed eligibility is in place in the Northwest Territories and Nunavut. Presumed eligibility is based on the assumption that all persons are financially eligible for circuit and duty counsel services. Therefore, "circuit and duty counsel services may be provided without consideration of financial eligibility, i.e., without application and approval for legal aid."¹⁵ In practice, presumed eligibility means that duty counsel represent all accused persons who appear in court and wish to be represented up until the point where they decide to plead not guilty, at which point they complete an application form for legal aid. The Yukon does not have a policy of presumed eligibility. However, there is an informal policy of "practical delivery," where duty counsel provide representation to all accused persons in circuit court unless they are clearly financially ineligible.¹⁶ It should be noted that, while presumed eligibility theoretically applies to family and other civil law cases as well as to criminal cases, in practice the vast majority of services provided under presumed eligibility or "practical delivery" are for criminal charges, as these make up the majority of cases heard in circuit courts.
   
• Family and other civil law services - Both the LSB and NLSB are intended to provide legal services in the areas of family and other civil law, as well as criminal law, with some exceptions. However, in practice, the amount of legal aid available for family and other civil law cases is extremely limited due to lack of resources in many parts of the legal system. In the Yukon until 2001, coverage of family and other civil law issues was limited to child protection proceedings, interim proceedings (where children are involved), and proceedings under the Mental Health Act. Since then, the YLSS has begun to provide more funding, particularly in the area of family law, on a case-by-case basis. The extent of unmet need in family and other civil law is discussed in greater detail in Section 8.0.

The percentage of applications denied by the LSB, NLSB and YLSS, and the reasons for denial, also provide some clarity on limitations to legal service provision. This information is provided in Table 3.4. However, it should be noted that data on applications denied does not necessarily provide a true indication of the extent of unmet demand for services, as individuals are likely aware that certain services are not offered and, therefore, will not submit an application. In particular, it is expected that the unmet demand for family and other civil law services would be underestimated based on legal aid applications and denials.

Table 3.4 - Applications Denied (Number and Percentage of Received) and Primary Reasons for Denial (2000-01)

Area of Service	Northwest Territories	Nunavut	Yukon*
Criminal Law (adult)
Applications Denied	50 (10 percent)	1 (less than 1 percent)	18 (2 percent)
Primary Reasons for Denial	Failure to provide necessary information. Financial eligibility.	Failure to provide necessary information. Perceived lack of benefit to client.	Financial eligibility.
Family Law
Applications Denied	316 (47 percent)	2 (less than 1 percent)	70 (18 percent)
Primary Reasons for Denial	Failure to provide necessary financial information. Financial eligibility.	Type of case . Failure to provide necessary information. Perceived lack of benefit to client.	Financial eligibility. Type of case. Perceived lack of benefit client.
Other Civil Law
Applications Denied	31 (62 percent)	3 (19 percent)	70 (18 percent)
Primary Reasons for Denial	Type of case.	Type of case. Failure to provide necessary information. Perceived lack of benefit to client.	Financial eligibility. Type of case. Perceived lack of benefit client.

* Note that the statistics on applications denied for family and other civil law cases in the Yukon were not broken out into the two components. Therefore, the same information is provided for both areas.

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¹Statistics Canada Web site (http://www.statscan.ca).

²Drawn from the source report for the Yukon.

³Statistics Canada Web site (http://www.statscan.ca).

⁴Statistics Canada Web site (http://www.statscan.ca).

⁵Statistics Canada, 2001 Census: Analysis Series: Aboriginal Peoples of Canada: A Demographic Profile (January 2003). Note that this information has been updated from that contained in the original source report.

⁶Canada Community Health Survey and 1996 Alcohol and Drug Survey (GNWT Bureau of Statistics).

⁷Canada Community Health Survey.

⁸Based on FAS/E information for Alaska provided in: Fetal Alcohol Syndrome Surveillance Network. "Fetal Alcohol Syndrome - Alaska, Arizona, Colorado, and New York, 1995-1997," Morbidity and Mortality Weekly Report, Centers for Disease Control and Presentation, May 24, 2002 (vol 51:20, pp. 433-435).

⁹Alcohol consumption is also implicated in driving under the influence charges. However, legal aid is not available to individuals accused of driving under the influence.

¹⁰Health Canada FAS/E Web site (http://www.hc-sc.gc.ca/hppb/childhood-youth/cyfh/fas/whatisfas.html).

¹¹Statistics Canada Web site (http://www.statscan.ca).

¹²CBC News North Web site (http://www.north.cbc.ca).

¹³Statistics Canada Web site (http://www.statscan.ca).

¹⁴Ibid.

¹⁵LSB, Legal Aid Bulletin #97-1, July 25, 1997.

¹⁶It is not clear from the source report whether "practical delivery" ends at the point of a not guilty plea, as does presumed eligibility in Nunavut and the Northwest Territories.

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