The New-Brunswick Aboriginal Duty Counsel Project

19. AFTER FIRST APPEARANCE

The subject of this research was the Aboriginal Duty Counsel project. This was a more intensive duty counsel project in the sense that it was designed to allow for better communication between Aboriginal clients and the Aboriginal duty counsel lawyer. However, the project was a conventional duty counsel service. The duty counsel lawyer did not attempt to dispose of cases as with the expanded duty counsel model.[10]  The duty counsel lawyer did not also take legal aid certificates. Thus there was no opportunity for continuity of service between duty counsel and trial level representation. It was of interest to determine what happened to the Aboriginal clients after the duty counsel stage.

The list of clients who entered not guilty pleas was matched with legal aid files to identify those who subsequently applied for legal aid. Adjournments were not included since it was uncertain whether these would subsequently become guilty or not guilty pleas.

The 172 guilty pleas did not represent 172 separate individuals. Some were repeat clients. Thirty repeat offenders accounted for 57 separate duty counsel contacts. This yielded a count of 115 unduplicated individuals. However, offenders could apply for legal aid more than once.

A total of 46 Aboriginal Duty Counsel clients applied for legal aid. Twenty-eight people, 60.8 %, received legal aid. Eight people, representing 17.3 % were refused service, and 10 applicants, 21.7 %, did not return after the initial application.

Table 19.1: Applications for Full Legal Aid Service
Application Status Number Percent
Accepted 28 60.8 %
Refused 8 17.3 %
Withdrawn 10 21.7 %
TOTAL 46 100.0 %

The overall rate of refused/withdrawn applications for Legal Aid New Brunswick was 35.5 % in 1998-1999.[11]  The combined percentage for refused and withdrawn applications for this group is about the same level at 39 %.

Most of the applicants who were refused or who withdrew applications were male. Twelve applicants, 66.7 % were male and 6 applicants, 33.3 %, were female. Among the eight refused applications, three were not financially eligible, four were rejected on the basis for coverage, and one application was refused on the basis of "abuse of the system". The latter designation normally means more than three certificates per year result in a conviction have been made by the same individual.

The offences committed by applicants who withdrew applications or who were refused service are shown in the table below. The distribution of offences seems similar to the overall distribution of offences. Minor offences such as assault and mischief are the most commonly occurring offences.

Table 19.2: Offences by Refused and Withdrawn Applicants
Offence Number Percent
Break and Enter 2 11.1 %
Assault 7 38.9 %
Mischief 4 22.2 %
Sexual Assault 2 11.1 %
Breach of Probation 1 5.6 %
Uttering Threats 2 11.1 %
TOTAL 18 100.0 %

Twenty-eight people received a legal aid certificate.  All 28 were adult offenders.

In terms of age, five of the twenty-eight were 24 years of age. Otherwise, ages ranged from 19 to 53 with no more than two persons falling into the same single year of age.

Seventeen males, 60.7 %, received certificates. Eleven females, or 39.3 percent received certificates. Females made up 32.5 % of all contacts in the Aboriginal Duty Counsel project. Males comprised 67.5 %. The proportions eventually receiving full legal aid service are similar.

Table 19.3: Duty Counsel and Full Legal Aid Service by Gender

Full Service
Male Female
No. % No. %
17 60.7 % 11 39.3 %
Duty Counsel
Male Female
No. % No. %
146 67.8 % 99 32.4 %

More than half of the people who received certificates were charged with assault. Others were charged with more serious offences.

Table 19.4: Most Serious Offences For People Receiving Legal Aid Certificates
Offence Number Percent
Homocide 1 3.6 %
Break and Enter 4 14.3 %
Assault 15 53.6 %
Fraud/False Pretense 1 3.6 %
Mischief 2 7.1 %
Possession of Weapon 1 3.6 %
Sexual Assault 1 3.6 %
Obstructing Peace Officer 1 3.6 %
Uttering Threats 2 7.1 %
TOTAL 28 100.0 %

At the time that the data were collected, only half of those having received legal aid certificates had their cases completed.

Table 19.5: Dispositions of Aboriginal Legal Aid Clients
Disposition Number Percent
Convicted 8 28.6 %
Acquitted/Withdrawn 4 14.3 %
Client Changed Plea W/O Representation 1 3.6 %
Certificate Cancelled 1 3.6 %
Not Concluded 14 50.0 %
TOTAL 28 100.0 %