Legal Service Provision in Northern Canada
Summary of Research in the Northwest Territories, Nunavut, and the Yukon
- 6.1 COURTWORKER SERVICE PROVISION
- 6.2 CONSTRAINTS FACING COURTWORKERS
- 6.3 CURRENT ROLE OF COURTWORKERS
- 6.4 PRESSURES ON THE ROLE OF COURTWORKERS
- 6.5 UNMET NEED FOR COURTWORKER SERVICES
There are significant differences in the way in which CW services are delivered across the northern jurisdictions. These different approaches result in some differences in the constraints facing CWs in carrying out their responsibilities, although there are also constraints that are common to all. Despite these differences, the role currently played by CWs and the anticipated pressures to expand that role are very similar in all three territories. Each of these issues is discussed in a separate subsection. Subsection 6.5 contains a table summarizing the extent and nature of unmet need for CW services.
The provision of CW services differs considerably among the three jurisdictions. These differences are summarized in Table 6.1.
|Jurisdiction||Responsible Body||Location of Courtworkers*||Type of Position|
|Northwest Territories||LSB||Fly-in and drive-in; and resident.||Part-time and full-time|
|Nunavut||NLSB||Resident and non-resident||Part-time and full-time (one full-time position in each region)|
|Yukon||CYFN||Some First Nations Resident and non-resident||Part-time and full-time (three full-time positions in total)|
* Note that "resident" refers to courtworkers who live in the community they serve, "non-resident" refers to courtworkers who serve several communities, and "fly-in" refers to courtworkers who visit the community only with the rest of the circuit court party.
The primary constraint for CWs across the three northern jurisdictions is lack of training. A number of areas were identified where increased training would greatly improve the CW services available, including procedural issues, substantive legal issues, and issues related to working with clients on an interpersonal basis (for example, if the clients are unable to accept responsibility, if they appear to be lying, or if they appear to be suffering from FAS/E).
However, a number of other constraints were also identified that, in some instances, could be unique to each jurisdiction.
- In the N.W.T., respondents identified the part-time nature of the work as a constraint. . The fly-in/drive-in nature of many CW locations in the territory also creates a constraint with respect to interview space while on circuit. CWs have no offices in the communities, so they are sometimes forced to interview clients in their hotel rooms.
- In Nunavut, respondents identified disparities in compensation across the territory as a significant issue affecting the hiring and retention of CWs. They also felt that the workload is too great for part-time positions, especially since there are communities that do not have a resident CW and must therefore be covered by a CW from another location. CWs in Nunavut also identified a lack of tools as a constraint. CWs lack offices (and must therefore sometimes interview clients in their homes), dedicated phone lines, fax machines, and storage space for confidential files.
- In the Yukon, the constraints facing CWs, beyond the need for training, were less clear, as the individual CW's situation appears to vary considerably from location to location.
In many ways, the core role of CWs is similar in all three jurisdictions. This role has been described as a
"bridging role" between the mainstream legal system, with its primarily non-Aboriginal employees, and Aboriginal clients. The bridging role includes translating and interpreting for the client and counsel, preparing the client for court, explaining court proceedings to the client, providing support to the client's family, interviewing the client and possibly other witnesses, providing counsel with background information on the community, and assisting clients with the completion of legal aid forms.
However, there are also differences in the role of CWs in the three jurisdictions. These differences are related to the courts that CWs are involved with and the nature of the CWs' relationship with the local government.
- In the N.W.T., CWs are active in both circuit courts and JP courts. They are involved with both criminal and civil cases, although their role in criminal cases is more extensive. Courtworkers can represent people in criminal cases. Normally they take legal aid applications only for civil matters. However, CWs in the N.W.T. appear to have less of a role with alternative justice programs and other local justice-related activities than CWs in the Yukon (see below). The source report does not provide an explanation for this difference. However, it seems likely that a combination of the potential for conflict of interest (see discussion with respect to Nunavut CWs) and the fact that many N.W.T. CWs fly into the community with the court party, rather than being full-time residents of the community, may play a role.
- In the Yukon, CWs are active in both circuit courts and JP courts, primarily with criminal cases. They also report more responsibilities with respect to alternative and community-based justice activities than their counterparts in the N.W.T. and Nunavut. CWs in the Yukon also report that they are sometimes required to serve the victims of crime, as well as the accused, in order to support the overall process. In contrast with CWs in Nunavut, CWs in the Yukon did not report concerns about conflict of interest due to their broader responsibilities. CWs also provide some PLEI in their communities.
- In Nunavut, CWs are active in both circuit courts and JP courts, where they are often the only representation for the accused. CWs have primarily been involved in criminal cases, although, as the extent of NLSB service provision for family and other civil law cases is increasing, so is the role of CWs in these areas. CWs in Nunavut are occasionally involved in local alternative justice programs, although the tendency is to avoid such involvement because of the opportunity for conflict of interest. CWs also provide PLEI in their communities.
The key pressure to expand the role of CWs across the northern jurisdictions originates in the desire to expand the role of JP courts. As discussed in Section 7.0, the role of JP courts is expected to expand in all three jurisdictions, with the hope of relieving pressure on other aspects of the legal system. In Nunavut, this will have a direct and immediate impact on the role of CWs, as CWs are the primary source of representation for clients in JP courts. In the Northwest Territories and the Yukon, the effect will be less immediate, as legal services counsel are also engaged in representing clients at the JP court level. However, as the demand for JP court representation increases, it is expected that CWs in the N.W.T. and the Yukon will be required to carry more of the burden of service provision in JP courts, as there will not be enough counsel available to meet the demand.
Table 6.2 summarizes the extent and nature of unmet need for CW services across the three jurisdictions.
* Note that the management of courtworkers is also somewhat decentralized in Nunavut, as they are managed from the regional legal services clinics rather than from the NLSB head office. However, the effects of decentralized management were not raised as a concern in the Nunavut study.
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