The New-Brunswick Aboriginal Duty Counsel Project

Executive Summary

This project was designed to improve the level of legal aid service to Aboriginal people in New Brunswick. The project was implemented on an experimental basis in Kent County, New Brunswick to serve Aboriginal people from the Big Cove, Buctouche, and Indian Island First Nations communities.

The need for a different approach to meeting the needs of native people became apparent with the large number of adjournments required by Aboriginal people at first appearance court. It was suspected that the difficulty in moving legal matters of Aboriginal people through the court reflected a number of difficulties experienced by Natives in communicating with the non-Aboriginal lawyers providing regular duty counsel service.

In order to explore the issues more carefully, and at the same time to put in place immediate steps to address the situation, an Aboriginal lawyer was hired to provide duty counsel service for Aboriginal people in the provincial court at Richibucto. The lawyer spoke Mi'Kmaq, the Aboriginal language of the region. The project commenced in December 1998. The project was supported in part by a contribution from the Department of Justice Canada, and monitored during the first year by the Research and Statistics Division of the federal Department of Justice.

During year one the project served 146 individuals, with a total of 305 duty counsel contacts. The most significant characteristic of the population of Aboriginal clients related to language ability. Twenty-four per cent of the clients reported that they spoke English poorly. Surprisingly, 8 per cent reported that they spoke only Mi'Kmaq This would explain in large measure the difficulties experienced by the non-Aboriginal lawyers providing service to this client population.

As well, a high proportion of the clients, 32 per cent, were women. This is much higher than the percentage of women among legal aid clients generally. Compared with Aboriginal men, Aboriginal women did tend to commit less serious offences than men. However, following the duty counsel stage of the criminal justice process, Native women received legal aid certificates in about the same proportion as they received duty counsel service. This indicates that women did not experience a disadvantage in receiving legal aid service because of any tendency to commit less serious offences.

The main outcome of the first year of the project was that adjournments for Aboriginal people was significantly reduced. Data from the same court for two years prior to the project showed that 43 per cent of Aboriginal people in 1996-97 and 46 per cent in 1997-98 required one or more adjournments. This was reduced to 24 % in the Aboriginal duty counsel project during December 1998 to November 1999. Duty counsel data from court proceedings in the Richibucto court served by a non-Aboriginal lawyer during 1998-99 showed that 45 per cent of Aboriginal clients required one or more adjournments, a level very similar to the pre-project period in the court in which the Aboriginal duty counsel project lawyer worked.

It is important to note that the decrease in adjournments did not translate into guilty pleas. During the pre-project period in the Richibucto court, 17 per cent of Aboriginal clients entered not guilty pleas at first appearance in 1996-97 and 25 per cent entered not guilty pleas in 1997-98. In comparison, during the December 1998 to November 1999 period, 49 per cent of the clients of the Aboriginal Duty Counsel project entered not guilty pleas at first appearance. This compares with 28 per cent of Aboriginal people entering pleas of not guilty at first appearance in the comparison court served by the non-Aboriginal lawyer during the same time period.

The Big Cove First Nation has a number of community services such as anger management, marital counseling, and drug and alcohol counseling. These services are available to deal with issues that may be related to the actual offences committed by Aboriginal people. The Aboriginal lawyer reported that she referred clients on 71 occasions to the various community services. This signals a more "holistic" approach to the needs of Aboriginal clients than may have been the case in the past.

In conclusion, this "intensive" form of duty counsel was successful during the first year of operation. The Aboriginal Duty Counsel project achieved both client service and system efficiency objectives. The preliminary data from the first year of operation demonstrate that this project is an effective way to meet the special needs of this client population.