The New-Brunswick Aboriginal Duty Counsel Project

1. PROJECT BACKGROUND AND RATIONALE

This project was implemented by Legal Aid New Brunswick to develop more effective ways of meeting the needs of Aboriginal clients. The project was intended to address difficulties being encountered with a large number of Aboriginal people appearing at the regional court at Richibucto on their first appearance. Communication between the Aboriginal accused and the regular duty counsel lawyers was not sufficient to move many cases through the plea stage without what was thought to be too many adjournments. The perception was that Aboriginal people often did not understand the nature of the court process and the charges. It was thought that the unusually large number of adjournments reflected the fact that there was not "sufficient time for an exchange of information and an explanation of what options may be available so that the accused is prepared and understands what will happen on plea day".[1] The project involved hiring an Aboriginal lawyer to deal with Aboriginal people appearing at first appearance court in an area of the province with a heavy concentration of Aboriginal people, Kent County in the northwestern part of the province.

Three First Nations communities are located in that area. Big Cove is by far the largest with a population of about 2210. There are two smaller communities, Indian Island with a population of about 140 and Buctouche with a population of about 80 inhabitants.

Aboriginal people represent a high proportion of the population Kent County overall. The total population of the county was about 33,000 according to the 1996 census. About 7.4 % of the population is made up of Aboriginal people. By way of comparison, about 1.4 % of the population of the province (729,630) identified themselves as Aboriginal (10,250) in the most recent census.

Data made available by the Royal Canadian Mounted Police confirmed that Aboriginal people were coming into conflict with the law in disproportionately large numbers in the RCMP District in which Big Cove is located, and for the community of Big Cove itself.  Table 1.1 reports the RCMP data for a six-month period preceding the development of the project.

Table 1.1: Criminal Code Offences and Charges Proceeding to Court

Criminal Code Offense Files Opened
Total For District 5 Total For Big Cove
1584 416 (26%)
Charges Proceeding to Criminal Court
Offence Type Total For District Five Total For Big Cove
Offences Against The Person 92 44 (48%)
Offences Against Property 104 18 (17%)

These data reflect the extent of over-representation of Aboriginal people in the Canadian justice system, a problem that is by no means unique to New Brunswick. Recall that the Aboriginal population of Kent County is about 7.4% of the total population. The percentage of criminal code offence files opened on Aboriginal people is just under four times their proportion in the population. The percentage of Aboriginal people charged with an offence against the person is about seven times their representation in the population. The experience of legal aid lawyers in New Brunswick was that Aboriginal clients were more difficult to serve well because of language difficulties. The over-representation of Aboriginal people in the justice system magnifies what would be a problem in any case.

Over-representation is a problem that effects legal aid delivery. However, the project was not conceived as a part of the solution to over-representation. Over-representation of Aboriginal people in the Canadian justice system is a complex problem. Explanations for over-representation are still the subject of debate. LaPrairie has identified four possible causes of overrepresentation: differential criminal justice system processing as a result of culture conflict and racial discrimination, higher Aboriginal offending rates, commission by Aboriginal people of offences more likely to result in carceral sentences, and criminal justice policies and practices that have a differential impact on Aboriginal people due to their socio- economic conditions.[2] Whatever the complex set of causes that leads to them to the over-representation syndrome, Aboriginal people tend to appear in court in relatively large numbers. The over-representation of a client group that presents special needs is a significant service delivery problem.

Language was also perceived to be an issue with regard to service delivery. Exact numbers were not known. However, it was perceived that a significant minority of Aboriginal accused persons from the area spoke the traditional Mi' Kmaq (pronounced Mic Mac) language, and understood Mi' Kmaq better than English or French. This posed a problem for communication with the court and legal aid duty counsel lawyers.

The proposed solution was to employ an Aboriginal lawyer as duty counsel in first appearance court. The lawyer represents Aboriginal accused at first appearance court, where plea is entered and bail is arranged. An office for the lawyer was established at the band council office on the Big Cove reserve. An office located on the reserve was intended to make contact with accused persons not held in custody easier. As well, the on-reserve location served to more firmly identify the lawyer with the Aboriginal community.

The Aboriginal duty counsel lawyer attended court two half days per week. Later in the project an additional half day was added to cover youth court. Aboriginal people appearing on the other two days received service from a regular duty counsel lawyer.

The project was funded by Legal Aid New Brunswick with a contribution from the Department of Justice, Canada. The project was administered through a local law firm that provided support to the duty counsel lawyer. An office for the lawyer was established at the band council office on the Big Cove reserve.

The project commenced in December 1998. This report covers the first year of operation of the duty counsel project, up to December 1999. The project is still in operation.



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