Nunavut Legal Services Study
Community members are affected by unmet need for legal services in several ways:
- Through frustration and cultural disconnect that occur because of delays and adjournments in circuit courts.
- Emotionally through their ties to the accused and the victim.
- Through the increasing demands on community-level structures to interact with and take over responsibilities from the legal system.
These delays, which seem inherent in the circuit court system despite the best efforts of all participants, can leave communities as a whole frustrated, particularly if the accused re-offends while waiting for the initial charge to be heard. In some cases, the community may seek to address the situation on its own. Other respondents have observed that, in very difficult and stressful cases, some delay may be healthy, in allowing emotions and anger to cool before a matter comes to court.
Nonetheless, Inuit respondents have observed that promptly dealing with transgressions within a community is an important traditional and cultural value, which often gets displaced by overloaded court circuits. Previous research has shown that:
… in discussing how conflicts were traditionally dealt with, …certain values continue to be important. Traditionally, a confession to wrongdoing was considered very important and in fact, not admitting to wrongdoing was often a more serious crime than the original wrongdoing. … It was felt that to hide guilt created sickness in the individual. Within time, this sickness would be felt by others around him or her… and they would become sick or dysfunctional. Then the wholea community would be infected with this sickness. … It is important to deal with issues as soon as possible. To put off an issue was to allow someone to live without confessing and dealing with the issues. To put this off too long brings about feelings of hurt, guilt, fear confusion etc. … It is therefore expected and familiar that people own up to their actions and share their breaches of rules with others so that the community could remain healthy. This should be done without delay.21
Even though respondents indicated that delays in circuit courts are typically less than in southern courts, Inuit may be less tolerant and understanding about delays than southern Canadians because of their desire to take the traditional approach and resolve matters quickly and locally.
Some respondents also pointed out that an adjournment in a circuit court has a much greater effect than an adjournment in a residential court. In a residential court, an adjournment might mean waiting a week. In a circuit court, it might mean waiting several months or, in some cases once weather is taken into account, half a year.
Community members see the effect of unmet need for legal services on the accused and on the victim, or on both parties to a family law or civil law dispute. In small communities, which are the norm in Nunavut, nearly all members of the community have had some personal involvement with the justice system, if not as the accused or the victim, then as the family of someone in either of those positions. Community members are aware first-hand of the impacts of unmet need, which results in a number of community-wide issues:
- Community members are often confused by what has happened during the circuit court hearings or JP court. They may not necessarily understand the reason for a particular ruling or for a delay in processing the case. Eventually, this confusion results in a distrust of the justice system, which appears difficult to understand and irrational.
- The confusion and distrust felt by community members may eventually result in disrespect for the justice system as a whole, and an unwillingness to become involved in this system in any way.
- The limited availability of service in family law and civil law may lead to a perception that the justice system is only about criminality and punishment, rather than as a possible way of solving problems, gaining restitution and restoring peace.
The uncertainties and delays associated with the justice system are difficult to bear for people who have generally experienced a great deal of trauma in their lives already. Nunavut is particularly afflicted with very high rates of suicide, alcohol and drug dependency, assault, and sexual assault. Having to deal with these concerns on a daily basis leaves little community capacity for patience and flexibility in response to a justice system that is not seen to be meeting their needs or reflecting their circumstances.
Community members are also increasingly being asked to take part in the justice system as elders, members of Community Justice Committees (CJCs), Youth Community Justice Committees (YCJCs), and other alternative justice projects. In general, respondents supported these initiatives and believed they are an important part of developing a justice system that is more responsive to traditional Inuit values and needs. However, many respondents also indicated that taking part in these systems is beginning to take a toll on the community members involved. These respondents felt that, in some cases, community members are being taken advantage of and not being properly remunerated or respected for their efforts.
A good example of the negative effects on community members of trying to bridge some of the gaps in the existing justice system is the case of CJCs and the early release of individuals from jail. When an inmate comes up for early release, the local CJC is sometimes asked for input on whether this would be appropriate. In some cases, being asked to make such a decision makes the members of the CJC uncomfortable, particularly since they must face the victim of the crime every day and may not feel able to explain to that individual why the offender has been given early release. If the offender re-offends, the CJC members feel guilty because they agreed to the early release. If the CJC recommends denying early release, they must justify this to the offender's family members, who likely also reside in the community. All of these situations place CJC members in uncomfortable positions, which may eventually result in reluctance to take part in any further justice initiatives.
Respected community members also serve as an informal referral service to the NLSB for members of the community who find themselves in trouble with the law. Of the twelve clients interviewed who were seeking criminal representation, three were referred to Maligaanik Tukisiiniakvik by a community member or a relative who was familiar with the NLSB.
NLSB counsel, Courtworkers, and administrators are acutely aware of the extent of unmet need for legal services in Nunavut and are severely affected by the shortfall in service provision.
Both Courtworkers and staff counsel have very heavy workloads and are often unable to provide help to everyone who needs it. Courtworkers provide their services under sub-optimal conditions, particularly with respect to infrastructure (please see further discussion on the needs of Courtworkers in Section 7.0). Staff counsel face punishing travel schedules while on circuit, and often work evenings, nights and weekends in an effort to prepare properly and provide quality representation for their clients.
NLSB staff are also emotionally affected by unmet need. Knowing that they cannot help those in need results in frustration for both Courtworkers and staff counsel. Courtworkers often face an additional burden as the representative of the justice system in the eyes of the community. Resident Courtworkers are required to pick up the pieces when the court leaves the community, and are often asked to justify the court's actions and decisions to family and community members, as well as to the accused and, sometimes, to the victim.
The pressures experienced by NLSB staff as a result of unmet need lead to frequent burnout and a high rate of turnover for both Courtworkers and counsel. This turnover only worsens the situation for the Board's remaining staff, however, as it further reduces the NLSB's capacity to meet existing need.
Unmet need in one part of the legal system can result in a chain reaction that places stress on other aspects of the legal system. Three examples of this are the effect of lack of representation for the accused in Justice of the Peace courts, the effect of lack of representation in circuit courts on probation officers, and the effect of unmet need in family law on demand for criminal representation.
In Justice of the Peace courts, the unwillingness of NLSB counsel to represent the accused over the telephone - combined with the limited availability of Courtworkers in each community - hampers the ability of the court to hear those cases as JPs are often extremely reluctant to proceed with an unrepresented accused. In some of these cases, the case is then moved up to the NCJ. Hearing these cases at the NCJ level is more time-consuming and less efficient than hearing them at the Justice of the Peace court, although it does ensure that the accused is represented by counsel. The costs associated with the additional time required and reduction in efficiency are borne, in part, by the NLSB, which must provide that representation.
When the accused is unrepresented in circuit court (either through lack of counsel or through difficulties providing high quality service to clients as a result of the circuit court context), the result may be an inappropriate sentence. Many of these sentences have the effect of increasing the workload of probation officers in the community. For example, probation officers must do follow-up for house arrests and conditional sentences. The requirement to report back to court when the circuit is next in the community also places an additional burden on probation officers to appear in court with the offender and report on their behavior.
With respect to the impact of unmet family law need on demand for criminal representation, some respondents believed that there is a link between the two issues, while others did not.22
"I believe there is a connection between the criminal and civil spheres in the generation of legal needs. When you don't give people access to services to protect themselves, you put them in positions where they have to defend themselves. If you put a barrier between people and the resources they need … there are consequences."
Those who perceived a link argued that individuals become frustrated because they are either unaware that family law remedies exist for their situation or unable to access those remedies. Eventually, their frustration becomes so great that they engage in a criminal act, such as assault. Others argued that, particularly in the case of women in abusive relationships, there is a link because these women are not aware of or able to access their rights under family law and, therefore, remain in a violent situation, which results in criminal charges against their spouse. These respondents provided anecdotal evidence of the link between the two issues, citing:
- A man who assaulted his former partner after he tried to leave the relationship and take their child with him and she wouldn't let him.
- A man who was charged with assault and uttering threats after trying to prevent his spouse from leaving the community with their child before the issues of custody and visitation rights had been resolved.
- Women who do not have access to family law advice and therefore are not aware that they have a right to remain in their home if they are separating from their partner. These women may stay in the home, even with an abusive partner, rather than leave, because housing is so scarce. The woman is often re-victimized as a result and the spouse is charged with assault.
"Take the example of someone who comes home to find his or her spouse in bed with someone else. Even if that person is aware that they can access legal services to get a divorce and address child custody and support issues, they will probably still hit their spouse in the head with a carving in the heat of the moment."
Some respondents believed that addressing unmet family law and civil law needs would reduce the demand for criminal law services. On the other hand, one respondent indicated that there may be a link between the two issues, but that this does not imply that addressing civil and family law issues will automatically reduce the demand for criminal legal aid, because criminal charges are usually the result of a spontaneous response to a problem.
Regardless of their opinion on the reliability of the link between the two issues, none of the respondents were able to estimate the extent of the problem. However, one respondent did indicate that, as 30-40 percent of the criminal charges in his region are spousal assault charges, family violence is a major issue and at least some of that violence must be tied to unresolved family law issues.
The following table summarizes the key points relating to Section 6.0.
Impact of Unmet Needs
- The inability of the NLSB to meet the needs of accused in many different situations has a significant and negative effect on the accused's well-being. In some cases, the sense of helplessness brought on by unmet need has resulted in the accused committing suicide. Accused being un-representated may also result in a greater tendency to plead guilty and/or in unduly onerous and sometimes inappropriate sentences.
- Some respondents believed that unmet need in the area of family and civil law may be resulting in increased demand for criminal legal services, as individuals take matters into their own hands.
- Unmet need also has a negative impact on the victim (or other party to the dispute). These individuals are also affected by delays in the justice system and the inability to obtain their own legal representation (due to the overall shortage of lawyers in Nunavut).
- Community members are also affected by unmet need. They are frustrated due to the delays and adjournments in circuit courts. They feel culturally disconnected from the justice system. They are affected emotionally, through their ties to both the accused and the victim, especially in small communities. They are also increasingly being asked to interact with and take over responsibilities from the legal system as elders, Justice Committee members, and as participants in alternative justice projects.
- NLSB staff are acutely aware of the extent of unmet need and experience a great deal of stress, frustration, and anxiety as a result. These pressures lead to frequent burnout and a high rate of turnover, which in turn has a negative impact on the remaining staff.
- Unmet need in one part of the Nunavut justice system also has an effect on service provision in other areas, causing system-wide problems.
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