Nunavut Legal Services Study
The Nunavut Legal Services Study was commissioned by the Department of Justice Canada in order to gain an insight into the state of legal service provision in Nunavut; the challenges faced by legal services providers (including the Nunavut Legal Services Board - NLSB); the cost drivers associated with legal service provision; the areas where unmet need for legal services exists; the impact of this unmet need on the individuals and communities involved; and the ways in which these challenges can be addressed.
The study focused on 10 issues, arrived at jointly by representatives from Justice Canada, the Nunavut Department of Justice, and the NLSB:
- The impact of court structure, geography, and culture on the demand for legal services, pattern of service delivery and quality of services
- Impacts of circuit courts on clients
- The increased role of Courtworkers
- Unmet needs for legal representation in Justice of the Peace Court
- Unmet needs in family and other civil matters
- Unmet needs prior to first appearance or first instance
- Interplay between the criminal and civil spheres in the generation of legal needs
- Public legal education and information needs
- Factors driving legal representation costs
- Impacts of key federal legislation, policies, and resource allocation decisions on cost per case and territorial allocations of legal aid resources
A team of researchers from IER and Dennis Patterson conducted the Nunavut Legal Services Study. The study made use of a variety of methodologies, both quantitative and qualitative, in order to examine the issues:
- Interviews - Over 40 interviews were conducted (in person and by telephone) with a broad range of stakeholders in legal service provision.
- Document review - The research team was provided with documents from a number of different sources, including Justice Canada and the NLSB, which were reviewed as part of the study.
- File-based research - Legal aid applications and client files from prior to July 2000 and legal aid applications from after July 2000 were reviewed, along with the final and concluded dockets for circuit courts in Nunavut. File-based research was completed in Yellowknife and in Gjoa Haven.
- Workshops - Workshops were conducted in Iqaluit and Cambridge Bay in order to seek further input from community members and to validate, where possible, the study's preliminary findings.
- Client interviews - Fourteen clients were interviewed by staff from the Maliiganik Tukisiiniakvik clinic, in order to gain insight into the experience of clinic users, a key stakeholder group.
The population of Nunavut is distinct from that of the rest of Canada in many ways. These distinctions form the context in which legal services are provided. They have an impact on the demand for legal services, the types of legal services required, and the ways in which those services can best be provided. Key socio-economic issues include:
- Population size and distribution by age group - Nunavut has the smallest population of any jurisdiction in Canada. The population is very young, with the majority of individuals less than 14 years of age in 1996 (Census 1996). The population is distributed among 28 communities and several outposts, many very remote and difficult to access.
- Family structure - Family structure in Nunavut is more diverse than in other parts of Canada. Common-law and one-parent families make up half of all families, the highest proportion in Canada.
- Housing and living arrangements - Some 57 percent of Nunavut's families live in rental housing, while the remainder own their homes. The average number of people per household (3.9) is higher than in any other Canadian jurisdiction.
- Education - In 1996, almost half of the population of the NWT (which then included Nunavut) over the age of 15 did not have a degree, certificate or diploma, and only 13 percent had a high school graduation certificate.
- Language and ancestry - The majority of the population of Nunavut are Inuit and speak Inuktitut as their mother tongue.
- Crime and policing - Since Nunavut was established in 1999, the number of police officers has been increasing relative to the population. Nunavut has the third highest number of police officers per person in Canada (only the NWT and Yukon have more). Nunavut has one of the highest overall crime rates in Canada and the highest violent crime rate in the country.
- Employment - The average unemployment rate across all regions of Nunavut is 17.4 percent. The main sources of employment are the territorial government, local government, construction, and tourism (in some communities). Many people from smaller communities list their main source of employment as "traditional activities."
- Fetal Alcohol Syndrome and/or Effect (FAS/E) - Several workshop participants identified FAS/E as a significant problem in Nunavut. Unfortunately, no statistics were available to validate this perception. Children with FAS/E experience difficulty recognizing the consequences of their actions and may lack the capacity to make decisions about right and wrong, and to solve problems effectively.
Nunavut's legal system is unique in Canada due to the Nunavut Court of Justice (NCJ), a unified court that replaces the dual court model (Territorial/Provincial and Supreme) used in the rest of Canada. This model was intended to improve service to residents of Nunavut by improving access to the court (by increasing the frequency and length of visits to communities) and simplifying the legal system. Another important characteristic of the Nunavut legal system is the practice of presumed eligibility, which means that individuals do not have to complete a legal aid application in order to receive the services of a duty counsel while in court. Only if the individual wishes to plead guilty (in a criminal case) or if the case becomes very complex will a formal legal aid application be required.
Nunavut's legal system is also a reflection of the process through which Nunavut was created. This process led to a commitment to decentralization of government services (and the benefits of employment and infrastructure development associated with providing those services) and Inuit involvement in decision-making on all issues, which is also reflected in the organization of the legal system and of the NLSB.
The legal system in Nunavut is highly complex and interdependent. All of the components of the legal system interact and influence one another. This posed a challenge for the research team in isolating issues related to the NLSB from those related to other parts of the system. It also resulted in the need to discuss other parts of the system in order to gain insight on how issues that at first appeared separate from the NLSB could, in fact, be linked back to concerns over costs and service provision.
The NLSB has three primary roles: to provide legal aid services; to manage the Courtworkers program; and to provide public legal education and information (PLEI). The Act governing the NLSB indicates that these objectives must be accomplished to the best of the Board's ability.
The Board has a budget of $3,362,000 in 2002/03. There are four clinics: one in Cambridge Bay (Kitikmeot Region); one in Rankin Inlet (Keewatin Region); one in Iqaluit (Baffin Region); and one in Pond Inlet (the High Arctic office, which is also in the Baffin Region). The NLSB employs eight staff lawyers, with the services of an additional four private lawyers on a contract basis to supplement staff lawyers as necessary, and fourteen Courtworkers (through the regional clinics), three of whom are full-time.
Demand for the Board's services, as measured by the number of legal aid applications received, is increasing steadily. The Board denies very few of the applications it receives for legal aid. The majority of denied applications are in the areas of family or other civil law. When an application is denied, it is not usually because the applicant is financially ineligible or because of the type of case involved. Rather, the most common reason for denial of an application is that the applicant does not provide all of the information necessary to process the application. The second most common reason for denial is that the Board believed that the case is unlikely to result in any benefit for the applicant.
The demand for legal services and the pattern and quality of legal services provided by the NLSB are affected by a number of different factors, including court structure (including both the NCJ circuit courts and the Justice of the Peace courts), geography, culture, and human resource constraints.
Respondents indicated that the circuit court structure is marked by long intervals between visits to communities and short times spent in the communities. This structure is believed to cause:
- Large court dockets, which result in a very heavy workload for all members of the court party while in the communities, and concerns about the quality of service provision.
- The extensive use of deputy judges, who do not provide the continuity and familiarity with Nunavut and particular communities that a resident judge provides (this issue will be somewhat alleviated by the recent appointment of a third NCJ justice).
- Concerns regarding the handling of spousal and sexual assault cases. Some respondents indicated that Victim Impact Statements are being taken by RCMP officers, but may not be presented to the court. They also reported that many non-Aboriginal members of the justice system (at all levels), out of a desire to be culturally sensitive, may be condoning attitudes towards women and violence against women that negatively affect those women in their communities.
- Difficulties in gaining access to clients, who often do not take advantage of the opportunities provided to meet with their counsel before they are required to appear in court. This is aggravated in the 13 communities (out of 28) where there are no resident Courtworkers to encourage attendance. There are rarely any consequences for individuals who fail to meet with the defence counsel before the court session, and this often contributes to delays and adjournments, as well as to the workload of defence counsel during the court's visit to a community.
- Pressures to clear cases from the docket, in order to meet the NCJ's goal of providing faster, more accessible justice. In some cases, this results in cases being returned to the JP court system, which in some respondents' opinions is not always appropriate.
- Delays during circuit courts, which can be attributed to a number of factors, geographical (e.g., weather) and structural (e.g., length of docket, lack of opportunity to consult with clients, etc.). The general perception is that, while delays and adjournments occur too frequently in all cases, family law and other civil law cases bear the brunt of these problems as they are always last on the docket, after the criminal law cases. In turn, this means that the burden of delays may be borne disproportionately by women, who are more frequently the clients in family law matters.
- Discontinuity in defence counsel, which places stress on clients (for obvious reasons), but also on counsel, who must bring themselves up to speed on the cases they are not familiar with as well as address the client's frustration at the change in counsel. Respondents indicated that, although they support the practice of presumed eligibility, they believe that it contributes to discontinuity in defence counsel when combined with the overall constraints on human resources available to the NLSB.
Justice of the Peace (JP) courts in Nunavut are intended to hear a wider range of cases than is common in the rest of Canada, in order to relieve some of the burden on the NCJ. However, although a significant effort is taking place to train all JPs to carry out these expanded duties, at the time of writing the JP courts have not yet been able to take up all of the slack resulting from the elimination of the Territorial Court. As a result, the NCJ is dealing with a significantly increased workload of cases that might otherwise have been heard in JP court, in addition to facing increasing demand due to the overall socio-economic situation, which exacerbates some of the problems discussed above.
The geography of Nunavut, and, particularly, the scattered, remote nature of its communities, affects legal service provision in a number of ways:
- It makes it more difficult for the NLSB counsel to go to the community beforehand to meet with clients.
- It makes it more difficult for the court to adhere to its schedule of visits to communities.
- It affects the perceived independence of NLSB counsel, as they must often travel on the same chartered airplane as the rest of the court party.
- It results in a very high cost of travel, which, in turn, can trigger a physical and emotional disconnect between clients and their representatives. (For example, civil clients often have their entire case dealt with without ever meeting their lawyers, and criminal clients in show cause hearings are usually interviewed over the telephone.)
- It causes infrastructure difficulties that compound communications problems (for example, limited Internet access) and make research more difficult. The lack of appropriate remand facilities in local communities also means that many accused are transferred to the Baffin Correctional Centre in Iqaluit to wait to speak to a lawyer or to go to court. This is very difficult for the client.
A number of respondents recognized that the justice system in Nunavut is making efforts to be more culturally sensitive. However, culture and cultural differences continue to have a negative impact on legal service provision and the ability to represent clients effectively. Such problems include:
- Language issues - Most Inuit do not have English as their first language. Translating and understanding the concept at hand, as well as the actual words used to represent that concept, are often extremely difficult. Some of the clients interviewed during the study indicated that they did not understand what was happening during the proceedings because of language issues. Others indicated that they only understood because the Courtworker explained to them.
- Cultural disconnects and pressures - In many ways, Inuit culture differs from the southern Canadian culture that underlies the justice system. For example, many Inuit are reluctant to plead not guilty if they did commit the crime and are susceptible to subtle pressures from authority figures. In family law and civil law, there are also a number of disconnects. For example, the practice of custom adoption (where a family member adopts the child if the birth parent cannot care for it) does not match up easily with the concept of child support payments.
- Literacy and education - Illiteracy, or low levels of literacy, in English and in Inuktitut may also be issues that make it more difficult to provide effective services to clients.
A number of drivers have a significant effect on the cost of legal service provision in Nunavut. They include:
- Geography - NLSB counsel must travel to perform their duties in circuit court, and staff from the NLSB headquarters in Gjoa Haven must travel frequently to perform administrative duties. Given the difficulties of travel in Nunavut, geography implies significant additional costs for service provision.
- Socio-economics - Language issues and the level of formal education of clients increase the amount of time and effort needed to service individual clients. The socio-economic characteristics of Nunavut also contribute to higher overall demand for legal services.
- The public-sector economy - The government of Nunavut is the territory's largest employer and the largest economic force in Nunavut. Therefore, it is essential that the NLSB remain completely independent of the government in order to be able to provide independent legal advice to those who wish to challenge a government institution.
- Decentralization and participation - The commitment to decentralization and Inuit participation on the part of the government of Nunavut results in the NLSB head office being located in Gjoa Haven and the need to administer and support three regional clinic boards, as well as the NLSB.
- Difficulty in obtaining and retaining human resources - The NLSB must invest considerably in recruitment and retention activities, while managing the impacts of a chronic lack of human resources.
- Federal legislation - New legislation often entails increased demand for the NLSB's services. Respondents also indicated that new legislation is also developed without adequate consideration of the effects on Nunavut, and does not address the social problems leading to crime in the territory.
- Federal policies - Policies that affect the actions of the RCMP and Crown counsel (for example, zero tolerance for spousal assault), the actions of judges (for example, the "return back to court" policy that requires offenders to reappear in court on a given date), and PLEI activities (that encourage demand for NLSB services) all place additional stress on the justice system and on the NLSB.
- Federal resource allocation decisions - There appears to be an imbalance in resource allocation between the NLSB and the Crown, such that the NLSB is "out-gunned." Furthermore, as the NLSB is unable to raise any revenues to support its own activities, it is not in a position to attempt to address funding concerns on its own.
There was unanimous agreement among workshop participants and interviewees that there is unmet need for legal services in Nunavut. However, when discussing this topic, it became clear that some respondents defined unmet need as "lack of representation" (i.e., no counsel or Courtworker available), while others considered unmet need to also include "lack of quality representation." It also became clear that the nature and extent of unmet need vary from region to region and between smaller and larger communities in any given region.
Unmet need in the area of family and other civil law matters is clearly a case of lack of representation. Although the NLSB is mandated to provide service in these areas, criminal cases take priority over civil law matters. (This is also the case on court dockets, where family and civil law matters are frequently adjourned for lack of time.) There are also practical limitations on service provision in this area, foremost of which is the lack of non-NLSB practitioners to represent the "other side" of the dispute. There are unmet needs in nearly all areas of civil law in Nunavut. With respect to family law, key areas of need are child welfare, child support, property distribution after divorce, alternative dispute resolution, and issues related to custom adoption.
In circuit courts, given the system of presumed eligibility and the Courtworker program, lack of representation appears to be less of an issue. However, given the structural issues associated with circuit court work (see discussion above) and the limited human resources at the NLSB, this is an area where respondents raised concerns over the quality of representation being provided.
In JP courts, the degree of unmet need seems to vary across the jurisdiction. In some areas, Courtworkers provide the majority of representation in JP courts. In other areas, NLSB lawyers provide representation (although this was considered to be a fairly rare occurrence when Courtworkers were available). However, in general, respondents indicated that if an individual is unrepresented in JP court it is of their own volition. Many JPs indicated that they would refuse to go ahead with an unrepresented accused. However, questions about the adequacy of the current Courtworker training program (which is being revised and improved) and the monitoring of JP courts did cause some respondents to raise concerns about the quality of the representation being provided in these courts.
With respect to unmet need during show cause or bail hearings (the most common situations where representation is required prior to first appearance), respondents noted that these duties are primarily fulfilled by Courtworkers, but that, occasionally, duty counsel serve as representatives. Several respondents, including Courtworkers and representatives of the NLSB, indicated that there are situations where the accused is unrepresented prior to first appearance because neither a Courtworker nor a duty counsel is available to represent them. In addition, the concerns raised about the training of Courtworkers with respect to JP court representation were also raised with respect to representation prior to first appearance.
Finally, with respect to prisoners on remand in Baffin Correctional Centre (BCC), it is clear that there is insufficient representation available. The BCC typically houses 30 prisoners on remand (it was designed for a maximum of 15). These individuals are waiting to see a lawyer or to go to trial. Respondents from the corrections system indicated that the most significant factor affecting the number of prisoners on remand at BCC is the lack of criminal defence lawyers in Nunavut.
Respondents made very clear the devastating effects of unmet need for legal services on all parties involved: the accused, the victim, the community, and NLSB staff. This was one topic where the follow-on effects of unmet need in one area of the legal system clearly had an impact on other areas, including the NLSB.
The NLSB's inability to meet the needs of the accused has a significant impact on that individual's well-being. For example:
- Discontinuity in defence counsel affects the quality of service received and the extent of delays in processing the case.
- Unmet need in JP courts may result in the accused pleading guilty to offences they did not commit, or receiving unduly onerous or inappropriate sentences.
- Unmet need prior to first appearance may result in individuals being remanded to BCC in Iqaluit, where they face a further wait to speak to a defence lawyer.
All of these issues - combined with the lack of local support systems (such as addictions counselling), the socio-economic situation, and the effects of previous emotional traumas - were considered by respondents to put the accused at risk of depression and suicide, specific incidences of which they were able to provide as examples.
Victims are also negatively affected by delays in the justice system. Delays increase the potential for re-victimization, particularly in cases of assault, and leave the victim to face the accused on an ongoing basis for several months until the court returns to their isolated community.
In family law matters and other civil cases, the overall lack of civil law practitioners in Nunavut may result in a situation where one party obtains representation through the NLSB and the other cannot. Furthermore, delays in addressing family law and civil matters may result in one party becoming the victim of a criminal act by the other party as frustration over underlying issues increases.
The effect of unmet need on the victim is often compounded by the lack of Victim Services workers in many communities.
Community members are affected by unmet need for legal services in several ways:
- Through frustration and cultural disconnects that occur due to delays and adjournments in circuit courts.
- Emotionally, through their ties to the accused and/or the victim.
- Through the increasing demands placed on community-level structures to interact with and take over responsibilities from the legal system.
NLSB staff are acutely aware of the extent of unmet need, and experience a great deal of stress, anxiety, and frustration as a result. These pressures lead to frequent burn-out and a high rate of turnover, which in turn has a negative impact on the remaining staff.
The issue of unmet need is one where the impacts on one area of the legal system can quickly and easily spill over into other areas. For example:
- The unwillingness of NLSB counsel to represent the accused over the telephone in JP courts, combined with limited Courtworker services in each community, hampers the ability of JP courts to hear those cases, and sometimes causes the case to be moved up to the NCJ, adding to the workload of that court.
- When the accused is poorly represented in circuit court, the result may be an inappropriate sentence. It falls to probation officers in the community to conduct follow-up visits for house arrests and conditional sentences. If the accused is required to report back to court, the probation officer must then appear in court with the offender to report on his or her behavior.
- There may also be a relationship between unmet need for family law representation and the demand for criminal representation. Respondents who support this theory argued that individuals become frustrated because they are either unaware that family law remedies exist for their situation or are unable to access those remedies. Eventually, their frustration becomes so great that they engage in a criminal act, such as assault.
Courtworkers' responsibilities include assisting the client and the client's family to interact meaningfully with the justice system and, where necessary, NLSB counsel. They work closely with counsel to ensure that clients understand their rights and the situation. Courtworkers also provide a valuable interface between the community and the justice system, and often counsel community members and provide PLEI services. In some cases, Courtworkers may also be involved in alternative justice programs. Courtworkers' responsibilities vary widely from community to community, and are somewhat related to the extent of their training and whether there is a JP court in their community.
Courtworkers experience a great deal of pressure to expand their role and services, as well as pressures due to their relationship with the RCMP and Crown counsel during proceedings. Community members can be another source of pressure for Courtworkers, who must often explain the court's decisions and actions once it has left the community.
Courtworkers also face a number of barriers when delivering their services. These barriers include a lack of infrastructure and resources (such as offices, telephones, and fax machines), an unfair and inadequate compensation system (Courtworkers are paid through the regional clinics, so there are discrepancies between the regions in terms of pay scale), and a lack of recognition for their work.
Nonetheless, Courtworkers have the potential to meet a number of unmet needs in the justice system in Nunavut, including areas such as family law, youth justice, PLEI, community and alternative justice, and JP courts. In order to fulfill this potential, Courtworkers will require improved training (which is currently being developed by the NLSB and will be tied to the three-tier JP training program), improved compensation (to encourage recruitment and retention), greater support from other members of the justice system, and improved infrastructure. In addition, more Courtworkers (and more in full-time positions) will be required to meet the additional demand.
Public legal education and information (PLEI) serves a number of important purposes, including promoting the informed use of legal institutions, encouraging the informed management of the individual's legal affairs, supporting educated citizenship, and avoiding confrontation with the law. There are a small number of PLEI activities currently underway in Nunavut, but the majority of respondents believed that unmet need for PLEI exists in the areas of civil law, family law matters, criminal law, rights-based law, administrative tasks, and the functioning of the NLSB.
Respondents indicated that PLEI delivery could be improved through better co-ordination, a broader definition of PLEI users (to include more than just the victim and the accused), different methods of PLEI delivery, improved training for PLEI providers, and increased funding for PLEI provision.
However, it should also be noted that some respondents raised concerns about increasing PLEI activities, as they felt that this might result in an enormous increase in demand that the NLSB would be unable to meet.
In order to address the high level of unmet need for legal services in Nunavut and the effects of the factors described in the preceding sections, the research team has identified proposed solutions. These solutions relate to the need to ensure adequate funding for a wide range of improvements to the NLSB's human resource capacity, in order to address unmet need for services. They also relate to the need for the broader Nunavut justice system to focus on addressing those issues that have a significant impact on the functioning of the NLSB as a result of the high degree of inter-dependence of the various parts of the Nunavut justice system.
The proposed solutions for stakeholders of the NLSB are as follows:
- Existing family law and criminal law positions should be built into the core funding formula for the NLSB and an ongoing mechanism should be established to review the adequacy of staff lawyer positions based on caseloads, legal aid applications, and the available private legal aid panel.
- Adequate funds should be provided to give NLSB lawyers rough parity of benefits with Crown counsel.
- Adequate funds should be provided for adequate office space for regional legal services clinics.
- A funding base should be established to permit broader coverage of legal aid services in the family law and non-family civil law areas, and a mechanism should be developed to allow recovery from clients who can afford to contribute to legal services (to be credited to the Legal Aid Plan).
- Funds should be provided to continue an intensive and ongoing training program for Courtworkers.
- Funds should be provided to ensure that Courtworkers and office support staff in the Legal Aid Plan have salaries and benefits comparable to other community public servants in Nunavut.
- Funds should be provided to maintain the independent database and communication system now being implemented by the NLSB.
- There must be adequate funds for PLEI, including for adequate human resources.
The proposed solutions for the broader Nunavut justice system are as follows:
- The NCJ should consider whether there are ways by which court circuits and flights could be scheduled so as to utilize more Mondays and Fridays for court sittings.
- The NCJ should continue to review, in consultation with the Crown and the NLSB, whether court circuits could be scheduled differently, so as to maximize court time available in communities.
- Funds should be provided to encourage appropriate government offices, the NLSB, Aboriginal organizations and private firms to establish articling positions ultimately aimed at increasing the number of resident members of the Nunavut Law Society.
- A program should be established to hire and train local process servers.
- The Crown office in Nunavut should be encouraged to develop the capacity to assist RCMP or lay prosecutors to review charges before they are laid at the community level.
- The RCMP should be provided with resources to identify and train lay prosecutors to replace RCMP court officers in the communities.
- Resources should be provided to permit the Crown office to decentralize prosecutor positions to regions.
- Alternative justice measures should be encouraged and fostered.
- In developing and implementing all aspects of alternative justice measures, great care must be taken to ensure that the human rights of women and victims are safeguarded and respected against societal pressures, which are sometimes oppressive.
- The Nunavut Law Society should consider how best to deal with ethical issues raised by potential conflicts arising because there is a small pool of lawyers.
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