The New-Brunswick Aboriginal Duty Counsel Project


In 1996-97 there were 723 duty counsel contacts at the Richibucto court. About 26.9 % of all duty counsel contacts involved Aboriginal people. In 1997-98 there were 565 duty counsel contacts at that court location. 24.8 % of the duty counsel contacts in that year involved Aboriginal people. The percentage of Aboriginal people appearing in court for both years was well above the 7.4 % of Aboriginal people in the general population of the county.

The nature of the problem that was identified by Legal Aid New Brunswick becomes clear when pleas entered by accused persons is examined. Table 4.1 shows that compared with non-Aboriginals, a much larger number of Native people were likely to be granted an adjournment.

Table 4.1: Plea Entered by Aboriginal Status: Regular Duty Counsel Service
  1996-1997 1997-1998
Aboriginal Non-Aboriginal Aboriginal Non-Aboriginal
Plea No. % No. % No. % No. %
Guilty 70 36% 199 38% 47 29% 167 41%
Not Guilty 33 17% 141 27% 40 25% 108 27%
Adjourned 83 43% 161 30% 74 46% 113 30%
Other 8 4% 27 5% 0 0% 16 2%
TOTAL 194 100% 529 100% 161 100% 405 100%

In 1996-97, 43 % percent of Aboriginal accused had their cases adjourned, and in 1997-98 46 % had cases adjourned. This compares with 30 % of non-Aboriginal accused in each of those years. This confirms the perception, and is the apparent consequence, of Legal Aid New Brunswick that sufficient time was not available for an exchange of information and an explanation to the client of the options available, and the court process.[5]

A second aspect of the data presented in Table 4.1 is also of particular interest. A smaller percentage of Aboriginal people entered guilty pleas compared with non-Aboriginals. In 199697, 36 % of Aboriginal accused compared with 38 % of non-Aboriginals. The difference was even greater for 1997-98. In that year, 29 % of Aboriginal people entered guilty pleas at first appearance, compared with 41 % of non-Aboriginals.

This finding is somewhat surprising. The conventional wisdom about the experience of Aboriginal people in the criminal justice system is that they tend to plead guilty "to get it over with". This is usually explained in terms of the alienation that Aboriginal people feel toward the justice system, the mistrust that they feel toward White lawyers, and the confusion that arises out of a lack of understanding of how the justice system works. The lack of understanding may also arise from a language barrier. Aboriginal people may understand or speak English or French poorly, and thus are limited in their ability to communicate with lawyers about complex legal issues.

Finally, some traditional Aboriginal cultures do not have the same concept of guilt that is embodied in the Euro-Canadian justice system. The literature contains accounts of Aboriginal people pleading guilty to an offence, when they are merely acknowledging that they committed an act. Culpability and intent are not part of the concept in Aboriginal culture. Thus, the incident that resulted in a charge being laid may be not viewed by the Aboriginal accused as one for which he or she should, in fairness, to be punished.

The higher percentage of adjournments for Aboriginal people may be reflected in the lower percentage of both guilty pleas and not guilty pleas. The presiding judge at the Richibucto court has the reputation of scrupulously attempting to assure that the Aboriginal people appearing in his court are aware of the nature of the charges and of the justice process. He has a reputation for encouraging Aboriginal people who have not consulted the duty counsel lawyer to do so before proceeding.[6] This is no doubt a major reason for the larger number of adjournments and the lower number of pleas, including guilty pleas. It probably reflects in a general way the positive impact of a decade or more of judicial sensitization initiatives that have resulted from an increasing awareness of the problems faced by Aboriginal people in the justice system.

Finally, one is led to wonder about the impact of a specialized Aboriginal duty counsel program. Perhaps the number of adjournments can be reduced, and a justice system objective of increased efficiency can be achieved. The rate of guilty pleas is already lower for Aboriginal people than for non-Aboriginal accused.