Nunavut Legal Services Study

5. THE EXTENT OF UNMET NEED FOR LEGAL SERVICES (continued)

5. THE EXTENT OF UNMET NEED FOR LEGAL SERVICES (continued)

5.2 UNMET NEEDS IN CIRCUIT COURTS

5.2.1 Current level of service in circuit courts

On the surface, given the system of presumed eligibility and the Courtworker program, it would seem that there is little unmet need for representation in Nunavut's circuit courts, in that all individuals can be represented in some way. However, the majority of respondents believed that, due to the nature of circuit court work (long hours, difficulty traveling to the communities beforehand, limited Courtworkers in every community, discontinuity in counsel, delays due to adjournments, etc.),19 the quality of the representation available to clients in circuit courts sometimes suffers and, therefore, there is an unmet need for legal advice and support in circuit courts.

It should be noted that the question of unmet need in circuit courts was an area where the distinctions between different regions became quite apparent, as did the distinctions between the experiences of smaller communities (where there is no legal aid clinic) and larger communities. For example, concerns about the quality of representation on circuit courts were stronger in the Baffin Region than in the Kitikmeot Region and stronger in smaller communities, where the court must fly in together, than in larger communities where NLSB staff are available through the local legal aid clinic.

5.2.2 Resources required to improve service delivery in circuit courts

Respondents made many suggestions as to strategies and resources that could improve the quality of service provision in circuit courts. Their suggestions focused on the training of Courtworkers, increasing the number of circuits and length of stays in communities, and enabling NLSB lawyers to better meet the challenges inherent in the circuit court structure. Given the variation in experience of unmet need in circuit courts (see discussion above), some of these suggestions may be more appropriately implemented in a particular region or community rather than across the board.

With respect to Courtworkers, most respondents believed that Courtworkers require improved training in order to better support NLSB counsel when they arrive in the community with the circuit court. (A more detailed discussion of the role and needs of Courtworkers is provided in Section 7.0).

Although some respondents suggested that filling the vacant NCJ justice position for an additional judge would help to improve the number of circuits and the length of stays in communities, this is unlikely to be the case, because the NCJ has already been operating as if there were three judges, using deputy judges to fill in as necessary. Some respondents felt that bringing the number of NCJ justices up to four might help to resolve the situation. However, other respondents noted that that these benefits would not be realized if additional resources are not also provided to other participants in the justice system, particularly the NLSB and the Crown, so as to ensure that there are counsel to appear before the new judges.

With respect to enabling NLSB lawyers to better meet the challenges of circuit court, a number of suggestions were made. Most of these suggestions involve increasing, in some way, either the human or financial resources available to staff counsel and clinic directors, in order to improve efficiency and increase the amount of time that can be spent with clients in the communities. Respondents' suggestions included:

  • Resources for NLSB lawyers to visit remote communities more regularly, and prior to the appearance of the circuit court. This might entail a sort of pre-circuit circuit to ensure that all communities are visited in advance, rather than merely the first community on the list. It should be noted that resources would be required not only to cover travel costs but also to cover additional human resources to maintain clinic functions while lawyers are traveling.
  • Ensuring that two defence counsel are always sent on circuit. This would ease the workload and allow for more time with clients.
  • Developing a system to ensure a smoother hand-off of cases from one duty counsel to another. For example, Counsel A is the primary counsel on the first circuit, with Counsel B as the secondary counsel. On the second circuit, Counsel B becomes primary counsel, Counsel C is secondary counsel, and Counsel A has a break. In this way, the incentive to offload cases on to the following duty counsel would also be reduced, as would discontinuity of counsel.
  • Tendering out those circuits that are not regularly covered by staff counsel on a one- or two-year basis. In this way, the primary counsel on the circuit would be permanent, having tendered for the job, while the secondary counsel could be a rotating position, if necessary. This would allow the primary counsel to develop a good knowledge of the communities, community leaders, available resources, etc., and, again, would reduce discontinuity of counsel.
  • In communities with a regional clinic, have a "duty counsel day" ahead of docket week, in order to meet with clients and prepare for court.

5.3 UNMET NEEDS IN JUSTICE OF THE PEACE COURTS

5.3.1 Current level of service in Justice of the Peace courts

The situation with respect to representation in JP courts seems to vary across Nunavut:

  • Some respondents indicated that Courtworkers provide the majority of representation in JP courts.
  • In Iqaluit, law students or interns are sometimes involved in representing clients in JP courts.
  • In the Kitikmeot Region, workshop participants reported that some clients elect to represent themselves in JP courts.
  • In Cambridge Bay, it was reported that no one is unrepresented in the JP court, because of the presence of Courtworkers and NLSB lawyers in the community.
  • Other respondents indicated that, in their experience, representation by NLSB counsel in JP courts is an extremely rare occurrence.

In general, however, respondents believed that most people are represented in some way in JP courts unless they choose otherwise. This conclusion is borne out by JPs themselves, the majority of whom indicated that they feel uncomfortable proceeding if the accused is unrepresented, and would generally choose not to do so. A few JPs indicated that they would proceed with an unrepresented accused if this situation is the accused's choice and not due to a lack of available representation.

5.3.2 Unmet need in Justice of the Peace courts

However, there are a number of issues relating to JP courts and to the form of representation available to the accused that some respondents believed affects the quality of that representation to the point where an unmet need exists. Concerns expressed by these respondents included:

  • Very few Courtworkers are trained to a level where they can represent the accused effectively in JP courts.
  • There is an overall lack of Courtworkers, meaning that they are not present in every community and that there may not be enough Courtworkers available to meaningfully represent all of the accused.
  • JP courts are not monitored and transcripts or tapes are difficult to obtain, which means that it would be very difficult for the NLSB or the Nunavut Department of Justice to be aware of any problems relating to the quality of representation.

"In JP court, we have people untrained in the law, we have a police officer who did the investigation doing the prosecuting, the JP signs things the police put in front of him, and Courtworkers have little or no training."

The concerns expressed by these respondents are made more serious by the perception that charges of increasing seriousness (that would previously have been heard in the NCJ where the accused is generally represented by a lawyer) are now being heard in JP courts. However, it should be noted that there were divergent opinions among respondents on whether the nature of cases being heard in JP courts has changed since the creation of Nunavut, with many respondents indicating that no change has taken place. There were also a number of respondents who believed that, yes, more serious offences are being addressed in JP courts, but that this is appropriate because an enhanced JP court system is a key part of the overall unified court system. These respondents wondered who, other than respected and adequately trained JPs and Courtworkers, would be able to meet the need for service provision by Inuktitut-speaking, locally knowledgeable practitioners - given that there will never be sufficient lawyers in Nunavut to provide these services (either as Crown counsel or defence counsel).

5.3.3 Resources required to improve service delivery in Justice of the Peace courts

Respondents suggested a number of means through which representation in JP courts could be improved. These included:

  • Improving and formalizing Courtworker training in order to improve their capacity to represent the accused in JP courts and to appeal JP court decisions, if necessary.
  • Increasing the number of Courtworkers so that there is, at minimum, one Courtworker in each community with a JP court.
  • Providing resources for full-time Courtworker positions, as opposed to the part-time positions that are currently funded.
  • Allowing for NLSB counsel to travel to communities and represent the accused in JP courts, should this be warranted by the seriousness of the offence.
  • Improving the monitoring of JP courts in order to ensure that the accused is being appropriately represented, and that transcripts of the proceedings are available should they be required for the purposes of an appeal.
  • Developing a local support network for Courtworkers that would include NLSB staff counsel, but might also include members of the Community Justice Committee, for example.
  • Finding ways to include family members in the process so that they can provide support for the client through their presence.

It should be noted that Courtworkers, who bear the brunt of representing clients in JP courts, and who are the subjects of a number of the suggestions provided above, also made it very clear that there are some cases that they would not like to be involved in, regardless of the resources made available to them. These included:

  • Sexual assaults.
  • Narcotics cases.
  • Non-summary offences.
  • Show cause hearings where the victim might be harmed if the accused is released on bail. (See further discussion of the Courtworkers' role prior to first appearance in Section 5.4.)

5.4 UNMET NEEDS PRIOR TO FIRST APPEARANCE

5.4.1 Current level of service prior to first appearance

The question of an accused's need for representation prior to first appearance usually concerns bail or show cause hearings. In these instances, representation is generally provided either by Courtworkers (most frequently) or by NLSB counsel (duty counsel for that week).

Respondents indicated that Courtworkers are frequently involved in show cause or bail hearings. During these hearings, their duties include:

  • Explaining the client's rights and the system
  • Receiving instructions from the client
  • Involving the parents of young offenders in the discussion
  • Consulting with the Crown or the legal aid lawyer (by telephone)
  • Attending the RCMP lockup or JP court to address the issue

The majority of respondents indicated that duty counsel representation prior to first appearance is very infrequent. This limited involvement was attributed to several factors:

  • The duty counsel cannot always be reached by telephone, especially after hours.
  • Some duty counsel refuse to do show cause or bail hearings over the telephone.
  • Duty counsel may have difficulty contacting clients, particularly those without telephones, or communicating with clients because of the language barrier.
  • When duty counsel do agree to take part in a show cause or bail hearing over the telephone, it is very difficult for them to provide adequate advice to the client, as they cannot see the police officer and JP involved. There were several anecdotal reports of apparent collusion between the JP and the RCMP during hearings conducted over the phone.

In one case, a JP reported that, in almost all bail or show cause hearings he oversees, the accused is represented by counsel, either from the NLSB or a private practitioner.

5.4.2 Unmet need prior to first appearance

There were divergent opinions among respondents as to whether unmet need exists for representation prior to first appearance:

  • Most JPs felt that very few people are unrepresented in this situation. They reported that accused are only unrepresented if they have made a clear choice to go ahead without waiting for representation. One JP indicated that he is reluctant to proceed in such a situation, because he is uncomfortable with an accused being unrepresented.
  • Respondents from the NLSB felt that there must be cases where people are unwillingly unrepresented, because they receive calls requesting representation and are unable to meet that need. One respondent indicated that people from Nunavut are still calling the NWT in search of representation.
  • Courtworkers reported that there are cases where clients are unrepresented prior to first appearance. This occurs for a number of reasons, and usually after hours or on the weekend. Some Courtworkers indicated that the counsel who are on call do not answer their phones on Saturday nights. They also indicated that the RCMP does not always call the local Courtworker if the duty counsel is not available. In fact, they felt that the RCMP sometimes convince the accused that they do not need to call the Courtworker if the duty counsel is unavailable.

Respondents identified a number of barriers directly related to the NLSB (either counsel or Courtworkers) that have an impact on the representation of clients prior to first appearance:

  • The training and degree of experience of the Courtworker
  • The language barrier between counsel and accused, either in person or over the telephone
  • The difficulty in establishing a trust relationship with the client in such a short time and/or over the telephone
  • Limited access to NLSB lawyers for Courtworkers who require advice or assistance
  • The lack of a 1-800 number for clients to call when they need representation
  • Out-of-date lists of lawyers provided to clients by the RCMP
  • Duty counsel who are not available by phone when they are on call
  • Often the lack of a secure place (from the perspective of the Courtworker) to interview clients
  • Lack of Courtworkers in some communities

Finally, one respondent pointed out that bail and show cause hearings are not the only areas where clients go unrepresented prior to first appearance. Peace bonds20 are another area of unmet need. A respondent indicated that, in at least one detachment, RCMP officers were encouraging people to quickly sign peace bonds before a JP without explaining the full implications and without ensuring that the individual had legal representation.

5.4.3 Resources required to improve service delivery prior to first appearance

Respondents suggested a number of ways in which unmet need for representation prior to first appearance can be addressed, including:

  • Increased training for Courtworkers in the area of bail and show cause hearings, so that they can deliver better services.
  • Increasing the number of Courtworkers in larger communities, where demand is greater, and ensuring a minimum of one Courtworker in each community.
  • A rotating duty counsel list of several individuals for the week, rather than a single 24-hour on-call duty counsel, to improve telephone and in-person access to counsel. Updating the lists used by the RCMP is an important step, as seven of the twelve clients interviewed who were seeking criminal legal aid contacted their lawyer with the help of a list provided by the RCMP.
  • A 24-hour toll-free line for clients to access counsel or a Courtworker. Such a line could also be used by Courtworkers seeking advice or information in order to better represent their clients.
  • Public legal education and information materials, such as wallet cards outlining the right to remain silent, in simple, plain language and in Inuktitut.
  • Alternative venues for show cause and bail hearings, rather than the RCMP office (although it should be noted that one JP indicated that it is safer to hold these hearings at the RCMP office because the accused is then in custody).

5.5 UNMET NEEDS FOR PRISONERS ON REMAND

Informants reported that Nunavut's only corrections facility, the Baffin Correctional Centre, is crippled by significant numbers of prisoners who have been remanded in custody at any given time and are waiting to see a lawyer or have their case dealt with in court. According to respondents, the most significant factor in delays that result in large numbers of remand prisoners is that remand prisoners are having difficulties gaining access to lawyers. Although the Baffin Correctional Centre is very willing to allow inmates to see their lawyers, the problem seems to be that there is an overall shortage of criminal lawyers available to see inmates. Inmates have telephone access, but find it difficult to make contact with a lawyer or gain an appointment with a lawyer, given the overall shortage of lawyers. In many cases, remand prisoners wait a long time for a court date, are brought to court with many others in the same situation, and cannot be given adequate time to be interviewed or give instructions to a lawyer. As a result, after the long wait, a short court appearance results in an adjournment, while the accused person remains in custody.

On a typical day in recent months, Nunavut's only correctional facility, the Baffin Correctional Centre, had about 30 remand prisoners. The Baffin Correctional Centre was designed for a maximum prison population of about 60, and has facilities for only about 15 remand prisoners. In recent years, longer terms for remand prisoners have put additional pressure on available space within the BCC, requiring that these additional remand prisoners must be placed with the general population or in a special handling unit. This is an added administrative pressure for corrections staff at the BCC. Even providing exercise for remand prisoners becomes difficult. One of the consequences of these pressures is that the BCC has been forced to shoulder significant expenses - in the order of $1.5 million or more per annum - transferring remand prisoners to the faraway Yellowknife Correctional Centre.

Remand prisoners cause problems in the corrections system in other ways as well. Since remand prisoners are not eligible for correctional programs, they can end up spending significant periods of time not being helped with the problems that led them to (allegedly) commit a crime in the first place. They are often far away from family and home community, and become dispirited. Informants said that they are aware of accused persons who end up pleading guilty out of frustration with the lengthy process of waiting for legal advice and court appearances. Others endure the long waits because they know that they will get credit for time spent in remand when it comes to sentencing, since remand time is known as "hard time" within the justice system. It should be noted that, if this credit for time served is given, it further reduces the amount of time that the individual is eligible for correctional programs that might address the underlying issues.

The problem - limited capacity at the Yellowknife Correctional Centre and high costs of transfers to Yellowknife - is forcing officials to consider transferring remand prisoners outside the North. This problem is so acute that officials are presently considering the transfer of remand prisoners from Nunavut to the Ottawa Carleton Detention Centre.

Corrections informants reported that the average length of remand time is at least two months and a number of cases are three months or more. In some cases, inmates have been on remand for up to nine or ten months, even a year. Although this also includes time for trial preparation, the most aggravating factor often seems to be the lengthy periods inmates must wait before they can be interviewed and give instructions to a lawyer.

5.5.1 Resources required to improve service for prisoners on remand

Informants involved with corrections were agreed that the reason prisoners seem to lack access to lawyers appears to be the overall pressures being experienced by the small number of available lawyers in Nunavut. There are too few lawyers trying to deal with the demands of busy courts, as well as civil and family law issues. Several informants suggested that the needs of inmates have been overlooked as a result, putting additional pressures on the correctional facilities.

Since the problem is diagnosed to be a shortage of lawyers, informants suggested that the remedy required is simply making more lawyers available. Some suggested that there would be sufficient work within the corrections system to occupy a full-time lawyer. Others suggested that providing increased resources to regional legal services centres could allow staff lawyers and, in Iqaluit, private lawyers to provide adequate services to deal with the needs of inmates from all parts of Nunavut.

5.6 SUMMARY OF SECTION 5.0

The following table summarizes the key points relating to Section 5.0.

Table 5.1: Summary of Section 5.0

  • Unmet Needs in Family and Civil Law
    • Although the NLSB was originally intended to provide legal services in some areas of family and civil law, in practice these services are lacking, so individuals may lack representation in these cases.
    • There are practical limitations on family and civil law service provision, due to administrative and logistical issues, as well as to the overall lack of capacity for addressing these issues in the Nunavut justice system.
    • Respondents identified many areas of civil and family law service where they felt there are unmet needs.
  • Unmet Needs in Circuit Courts
    • Due to the system of presumed eligibility and the Courtworker program, it appears that all individuals can be represented in some way in circuit court.
    • A number of respondents expressed concern that, due to the nature of circuit court work, the quality of representation available to clients in circuit courts sometimes suffers, to the extent that unmet need exists.
    • Concerns about quality of representation were expressed more strongly in the Baffin Region than in other regions, and more so in smaller communities than in those communities with a local legal services clinic.
  • Unmet Needs in Justice of the Peace Courts
    • Respondents indicated that the extent of unmet need in Justice of the Peace courts varies considerably across Nunavut.
    • As with circuit courts, a number of respondents believed that the quality of representation available to individuals in Justice of the Peace courts is not sufficient to meet their needs. This concern is made more serious as Justice of the Peace courts increase the scope of offences they are hearing.
    • Courtworkers, who represent most clients in Justice of the Peace courts, felt a need to be better trained in order to provide better representation, but also expressed hesitation in taking on some types of cases (for example, sexual assaults and narcotics cases).
  • Unmet Needs Prior to First Appearance
    • Courtworkers frequently represent individuals during show cause or bail hearings, prior to first appearance. Duty counsel's role in representing individuals at this level appears to be quite limited.
    • Most JPs felt that very few people are unrepresented prior to first appearance. This is in contrast with the experience of the NLSB, which continues to receive calls requesting representation that they cannot provide. Courtworkers also reported cases where clients are unrepresented, usually after hours or on the weekend.
  • Unmet Needs for Prisoners on Remand
    • The Baffin Correctional Centre (the only correctional centre in Nunavut) is typically holding 30 prisoners on remand (i.e., individuals who have not yet been convicted of a crime) who are waiting to see a lawyer or to go to court. The centre is built to house a maximum of 15 prisoners on remand.
    • Lack of access to criminal defence lawyers is the most significant factor contributing to the number of prisoners on remand.
    • The situation is so extreme that some prisoners on remand are being transferred to the Yellowknife Correctional Centre.
    • While on remand, prisoners are not eligible to participate in correctional programs that might serve to address the underlying issues that led them to (allegedly) commit a crime. Furthermore, as convicted prisoners generally receive credit for the time they have already served in remand, the amount of time they spend at the correctional centre is reduced, further reducing their access to such programs.

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