Legal Aid, Courtworker, and Public Legal Education and Information Needs in the Northwest Territories

10. Cost Drivers

10.1 Factors

10.  Cost Drivers

This section focuses on factors that drive costs of providing legal aid in the Northwest Territories. One component of these factors – federal and territorial legislation and policies – is dealt with separately in Section 11.

10.1  Factors

The following factors were identified repeatedly by respondents. Except where noted, almost all factors are either unique to, or affect the Northwest Territories disproportionately compared to southern jurisdictions.

Geography

Service delivery involves Yellowknife and 31 small communities in an area approximately one eighth the overall size of Canada. Since the policy of the Territorial and Supreme Courts is to bring justice and the courts to the community, overhead costs of travel and accommodation are enormous. For example, the non-fee expenditures for circuits alone amounted to 18 percent of the overall legal aid budget in fiscal 1999/2000. Witnesses in trials may have to be flown in from distant communities in the Northwest Territories, and medical or expert witnesses may be from outside the jurisdiction.

Alcohol consumption and abuse

Respondents consistently identified alcohol abuse as a major factor that impacts crime and criminal justice costs. A March 2000 release by GNWT Health and Social Services cited a 1996 Alcohol and Drug Survey by the GNWT Bureau of Statistics that showed an indicator of heavy alcohol consumption in the Northwest Territories to be three times that of Canada as a whole.

Canadian Community Health Survey data from September 2000 to November 2001 reveals that, on two primary alcohol consumption indicators, NWT residents are highest of all Canadian jurisdictions. The Canadian average daily alcohol consumption is 0.52 drinks. The NWT average is 0.70, or 133.8 percent of the Canadian average. The Canadian average for number of drinks consumed in the past week (when the survey was taken) is 3.88. The NWT average is 5.03, or 129.7 percent of the Canadian average. The incidence of FAS/FAE is considered anecdotally as being extremely high. One lawyer estimated that alcohol drives 95 percent of the criminal caseload; another estimated that one half of any given docket comprises individuals with FAS or FAE. In a CBC interview on April 11, 2002, an RCMP staff sergeant said that, in Yellowknife alone, RCMP deal with 100 drunks each night. It is estimated that as much as 40 percent of the adult population displays some symptoms of FAS, and the proportion of inmates in the correction system similarly affected is 65 percent.

Other social factors

Residential school syndrome is also seen as a factor that has driven a high rate of family violence and dysfunction. There is an extremely high level of financial need among persons charged with criminal acts. This fact led in large part to the implementation in 1996 of the system of presumed eligibility. Employment rates among Aboriginals are low (48 percent, compared to 80 percent for non-Aboriginals in 1999), and this is also reflected in lower employment in communities compared to Yellowknife. Unadjusted unemployment rates were high in December 2001 at 9.4 percent, compared to Canada as a whole at 7.6 percent. However, rates improved in the spring and summer months, and stood at only 5.7 percent in August 2002, compared to 7.7 percent for Canada as a whole.

Crime and detection

According to the RCMP report cited above, the rate of sexual assaults in 1999 (49 per 10,000) is over six times the national average (8 per 10,000).

Statistics Canada crime rate data for 1995–2000 (based on a compilation by the Yukon Bureau of Statistics, but including all Canadian jurisdictions) show that:

  • The NWT led all Canadian jurisdictions in overall reported crime rate, ranging from 24 to 29 incidents per 100 residents. The Yukon ranged from 20 to 25 incidents, and the next closest, BC and Saskatchewan, ranged between only 12 and 15 incidents. The NWT's clearance rate for these incidents, at approximately 59 percent, was the highest in Canada for the five-year period. Nunavut clearance rates, recorded only for the last two years of the period, were only slightly higher.
  • The NWT led all Canadian jurisdictions except Nunavut in the rate of reported violent incidents (at approximately 5 incidents per 100 residents, compared to a range of 1 to 1.7 per 100 residents for the provinces). The NWT average clearance rate for those incidents, 68–85 percent, was comparable to that of most provinces and territories.
  • The NWT was third after the Yukon and B.C. in rates of reported property incidents, ranging from approximately 5.8 to 7.7 per 100 residents, compared to less than 6 for most jurisdictions. Clearance rates, averaging approximately 36 percent, were higher on average than all Canadian jurisdictions except Nunavut.
  • The NWT was third after the Yukon and Saskatchewan in the rate of reported Criminal Code traffic incidents, at approximately 1.05 per 100 residents, compared to less than 0.7 for the remaining jurisdictions.
  • The NWT led all jurisdictions in reported “other Criminal Code incident rates, ranging from 10 to 17 incidents per 100 residents, compared to less than 5 incidents for all jurisdictions except Nunavut and Yukon. Clearance rates for these incidents were higher than for all other jurisdictions.

In so far as these incident rates and (in most cases) high clearance rates lead to charges and possible jail sentences, there are increased demands on the legal aid system. Respondents in this study felt that the higher detection and clearance rates in the NWT (and Yukon and Nunavut) are in large part due to the high policing ratios relative to population in smaller communities. One respondent also felt that the turnover rate of RCMP officers in smaller communities impacts charge rates, as inexperienced constables tend to charge more until they acquire more knowledge of community dynamics.

Jury trials

As reported in Section 2.2, there is a high rate of jury trials, unique to the Northwest Territories. Jury trials are more expensive for legal aid than judge alone trials because they are longer and more complex.

Corporate factors

The costs of running a law practice in the Northwest Territories were estimated by one respondent as being 25–30 percent higher than in a southern jurisdiction. It is difficult for a private lawyer to run a predominantly legal aid practice without operating from home. As noted in Section 6.0, there is a serious shortage of family law lawyers. Private lawyers can earn approximately twice as much on a private retainer as they can on a legal aid funded family case. There is thus increasing pressure within larger firms for lawyers not to take legal aid cases. Recruitment costs are approximately $20,000 to panel a prospective lawyer. The Inuvik clinic attempted three times to fill a vacancy, but the position remains unfilled. Thus, the Legal Services Board is caught in the squeeze between the relative lack of profitability for tariff cases, ongoing difficulty in recruiting new skilled staff lawyers, and unabated caseload pressures.

It is important to maintain a skilled bar not only in terms of the quality of representation for clients, but also in terms of containing costs. Cases are more likely to be appealed and incur further costs if the quality of either the staff or private bar is not high.

Lack of options in family law

Several respondents emphasized that the current model for resolution of family law matters in the Northwest Territories lacks any of the alternative resolution procedures commonly available in some southern jurisdictions. An orientation based on litigation is generally more expensive than alternative models.

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