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

2. How Court Structure, Geography and Culture Impact the Demand for Legal Services, Pattern of Service Delivery and Quality of Services

2. How Court Structure, Geography and Culture Impact the Demand for Legal Services, Pattern of Service Delivery and Quality of Services

This research was defined initially in the July 2001 meeting of territorial legal aid representatives (see Section 1.1) in relation to possible impacts of the single-level Nunavut Court of Justice. However, it was felt that in each of the three territories there were defining characteristics at the nexus of geography, culture and court structure that established the parameters of legal aid delivery. In the Northwest Territories these characteristics appear to be:

  • A large territory with one moderately sized town (Yellowknife, with a population of 17,195, according to the 1996 Census) and 31 small communities. While, in the south and west, most communities are connected by road, access to many communities in the north is predominantly by plane. Of these smaller communities, five ranged in population from 1255 to 3555, according to the 1996 census. The rest were under 1000, and five were under 100.
  • Although there is a minority Aboriginal population in Yellowknife (20 percent), in three other communities and in the NWT as a whole (48 percent), there is a majority Aboriginal population in the remaining 28 communities (1996 Census).
  • There are resident courts in Yellowknife, Hay River and Inuvik. The rest of the territory is served by circuit courts.
  • An expanding role for Justice of the Peace Court, dealing with territorial offences and many summary criminal matters, especially on guilty pleas. This is seen as a way of making the courts accessible to smaller communities throughout the territory, and of ensuring timely processing of cases.

Some of the impacts of these issues are addressed in greater detail in Section 3 (circuit court issues), Section 4 (JP courts), Section 6 (civil law) and Section 10 (cost drivers).

2.1 Data on Court Cases and on Clients Receiving Legal Aid Services

Tables 2 and 3 present data on criminal charges in territorial courts from January 2000 to June 30, 2002. Table 4 shows criminal legal aid applications approved by the Legal Services Board (LSB). In addition to representation of clients where applications have been approved, the LSB provides duty counsel who also serve clients by way of presumed eligibility, as shown in Table 3.

The tables should be considered in relationship to each other to develop a sense of the reach or impact of legal aid within the territorial court system. However, there are several limitations in doing so:

  • Court data are for two and a half calendar years, whereas Legal Services Board (LSB) data are for three fiscal years.
  • Court data in Table 3 are for charges, whereas LSB data in Table 4 are for cases. However, court data in Table 2 are for cases.
  • Presumed eligibility statistics may involve repeat contacts with clients assisted on successive appearances.
  • The categories for court and LSB data are not identical.
  • 1999–2000 LSB data include Nunavut cases.
  • Three years of data (or two and a half years for courts) are insufficient to establish trends.

Despite these caveats, some broad observations are possible:

  • If one adds the 441 legal aid clients (Table 4) and approximately 2620 criminal presumed eligibility clients (Table 5) for 2000–2001, and compares the total (e.g., approximately 2700, since presumed eligibility and legal aid clients may not be mutually exclusive) with the 3500 criminal court cases for calendar year 2001 (Table 2), the legal aid system is servicing approximately 70–75 percent of criminal cases in the territories. The client activities of Courtworkers (reported in Section 4) would augment this total, as Courtworkers in some instances assist clients not helped by legal aid lawyers or duty counsel.
  • The percentage of youth cases among total criminal cases in the courts is 14–16 percent (Table 2) and youth cases represent 8–10 percent of approved criminal legal aid applications (footnote 6 in Table 4). In addition, between 28 and 30 percent of presumed eligibility services in criminal matters are directed toward youth (Table 5).
  • The overall volume of criminal cases in the territorial courts has remained fairly constant in the two-and-a-half-year period reported in Table 2, although youth cases rose significantly in 2001 over the previous year. This pattern is mirrored in relatively constant numbers of criminal legal aid approvals over the three-year period in Table 4 (adjusting for Nunavut cases in the first year), and a slightly higher proportion of youth legal aid approvals.
  • Offences against the person comprise approximately 62–64 percent of legal aid client cases, versus 32–36 percent of overall charges in territorial courts. This is a clear reflection of the fact that these offences are likely to involve greater consequences for accused persons than other offence categories, thus making the accused eligible for legal aid.

Other patterns of change that have been noted anecdotally by respondents include:

  • There are more spousal assault cases because of mandatory charge policies for spousal assault. A “robust” defence is necessary because penalties on second or third conviction can be very severe.
  • There has been an increase in the number and size of drug cases, due to Controlled Drugs and Substances Act changes.

There was generally little comment or complaint about the effectiveness of the system of presumed eligibility. One respondent stated that clients tend to show less responsibility under the system, by simply turning up in court and “feeling entitled” to service, rather than contacting the Legal Services Board in advance. However, this was an isolated comment.

2.2 Judge Alone vs. Judge and Jury Trials

A legal aid cost driver identified by many legal professional respondents was the high proportion of elections for jury trials in Supreme Court. Preparation for jury trials is more demanding than for judge alone trials, and trials tend to be longer, so cost is commensurately greater. Table 6 shows that, from January 1, 2000 to June 30, 2002, almost three quarters of elections have been for jury trials.

Reasons advanced for this high frequency of jury trials are:

  • A perception among defence counsel that juries are more likely to acquit accused persons.
  • A perception that Crown counsel, for policy reasons, proceed with “weak” cases (especially in the area of sexual assault and/or spousal assault) and proceed by indictment rather than summary conviction. In this situation, defence tends to elect trial by jury.
  • A perception that judges convict readily.

Table 6: Supreme Court Criminal Trials, by Trial Type

2.3 Needs in Territorial Court

Several needs at the Territorial Court level were identified. In all instances these points were raised by a minority of respondents, even within particular categories of respondents. Concerns include the following:

  • Several respondents noted that there is too small a pool of lawyers to draw from. This applies to criminal matters also, but is especially serious in relation to family law (see Section 6.0). There is a constantly increasing potential for conflict of interest when serving small communities. This situation requires that the LSB be able to draw from a larger pool of lawyers to act as second counsel on circuit. Legal aid work is fast-paced, especially on circuits, and requires experienced practitioners. A second staff criminal lawyer is required in Inuvik, but, despite three separate posting procedures, the clinic has not been able to find an appropriate candidate (see also Section 10.1).
  • Some respondents felt there is a problem with legal aid coverage for the working poor. They felt that individuals often do not qualify for legal aid financially but still cannot afford to hire a lawyer when living in a remote community. The rate of unrepresented litigants was felt to be increasing. Table 7 shows that denials of adult criminal applications have ranged between 10 percent and 13 percent, and between 6 percent and 10 percent for youth. These figures, while low, do not take into account the extent to which public knowledge of financial eligibility cut-off points may “dry up” demand for legal aid, i.e., potential clients do not apply because they think they will be rejected. However, the fact that civil and family denial rates are considerably higher than criminal would suggest that the prospect of rejection does not play a large role in the decision to apply, i.e., people still apply even if they think they might be rejected. At the same time, the higher denial rates for family and civil are in themselves noteworthy and underscore that meeting family and civil needs is a major problem in the NWT (see Section 6).
  • Several lawyers felt that fees under the tariff are inadequate in comparison with rates that are charged for private clients.
  • Three respondents felt there are insufficient funds to cover expert witness review time if case records are extensive. However, another specifically stated that there are ample funds for expert witnesses. This difference in opinion likely stems from the fact that this type of approval is made upon review by the executive director of the LSB, depending on the merits of the case.
  • The legal aid tariff only covers 10 hours for appeals. The necessary review of transcripts, witness statements and judges’ charges cannot be done in that time. Again, the executive director has the discretion to increase the time covered.
  • There are inconsistencies in legal aid coverage, e.g., one respondent noted that consumption of alcohol by youth is covered, but issues of greater seriousness under the Motor Vehicle Act are not.

Table 7: Legal Aid Application Denials

2.4 Federal and Territorial Contributions to the Delivery of Legal Aid

Table 8 provides data on federal and territorial contributions for the operation of legal aid, Courtworkers and PLEI. Actual funding for the NWT only can be reliably determined for the past three years because, prior to fiscal 1999–2000, the federal and territorial contributions included funds for what is now Nunavut. (Even though Nunavut was created in April 2000, the budget for the pervious year was calculated for both territories.)

The table does not show GNWT contributions for each of the three parts of the program because. in the past four years, the GNWT portion has simply made up the difference between the federal contribution and overall expenditures. Even though the pre-1999–2000 figures include present-day Nunavut, it is readily apparent that federal contribution to overall costs in the past five years has remained, with the help of “one-time” injections, consistently between 39 and 42 percent.

Table 8: Federal and Territorial Contributions to Legal Aid, Native Courtworkers and PLE

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