Nunavut Legal Services Study

7. COURTWORKERS

• 7.1 CURRENT ROLES AND RESPONSIBILITIES
• 7.2 POTENTIAL TO MEET UNMET NEEDS
• 7.3 RESOURCES REQUIRED TO FULFILL POTENTIAL
• 7.4 SUMMARY OF SECTION 7

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7.COURTWORKERS

A strong consensus exists in the Nunavut justice system that Courtworkers are critical linchpins for the Legal Aid Plan to operate effectively in a cross-cultural environment, where the vast majority of clients are Inuit whose first and sometimes only language is Inuktitut. It has been a fundamental premise of the Legal Aid Plan in the Northwest Territories and Nunavut that Inuit Courtworkers are essential for effective communication between lawyers and their clients, case preparation and follow-up. Effective Courtworkers maximize the effectiveness of lawyers, in many ways. Also, Courtworkers working on their own, and having access to appropriate training and support, have been shown to be capable of handling significant responsibilities at the community level. Their services range from delivering legal education and information to the general public, to representing clients in show cause hearings and trials, to providing crucial assistance researching and assisting in family, youth and civil cases. As respected, well known and approachable community members, Courtworkers also give local visibility and credibility to what is still an essentially transient justice system.

Courtworkers, who are employed by the NLSB through regional legal service centres, have suffered from low and inconsistent pay and benefits, spotty training and inadequate numbers, despite their widely acknowledged, crucial role in the justice system. Many communities do not have Courtworker positions. Furthermore, where there are Courtworkers in place, they often are working without adequate or any office space for interviewing clients in safety and confidence, or for storing confidential files, limited communication capacities and supplies. This has led to turnover, burnout and frustration among Courtworkers. Recognizing the importance of remedying this situation, the NLSB is actively preparing an action plan to provide an intense, comprehensive and ongoing tiered process of training and certification. It is deemed critical that once this training program has been launched, there also be concrete recognition of the vital role of Courtworkers in delivering legal aid services, through significantly improved pay and benefits.

7.1 CURRENT ROLES AND RESPONSIBILITIES

Courtworkers' current roles and responsibilities are extremely varied and somewhat tied to factors such as the degree of training the Courtworker has received and the situation in the Courtworker's home community (for example, whether there is a JP in the community and how much responsibility that court takes on). In general, Courtworkers are expected to provide a direct link between clients and legal aid lawyers and are considered a key part of the federal and territorial governments' policy of strengthening the JP courts in Nunavut.

7.1.1 Responsibilities of Nunavut's Courtworkers

The Courtworkers interviewed identified the following responsibilities as part of their day-to-day activities:

• Interviewing clients and ensuring that they understand the process in which they are involved.
• Preparing for lawyers to come through on circuit by interviewing clients and witnesses, and arranging for clients to meet with the incoming lawyers.
• Providing interpretation for the accused and their parents or families (for young offenders) during lawyer/client interviews.
• Assisting visiting lawyers to obtain knowledge and background on the community, individuals involved in cases, and cultural and language issues that may arise in cases
• Working closely with private and clinic lawyers to provide services prior to first appearance, including ensuring that clients understand their rights and getting instructions from clients on how to proceed.
• Working closely with private and clinic lawyers to provide services to clients in response to a growing number of family and other civil law matters.
• Representing clients in JP courts on sentencing, at trials, or in family or Youth Court matters.
• Ensuring that the parents of young offenders are involved in the process and understand what is happening.
• Working with the local RCMP and court office to obtain particulars or discuss disposition of a case.
• Assisting clients to fill out legal aid application forms.
• Taking part in community and alternative justice efforts, including diversion programs and the RCMP conferencing system (see concerns raised below).
• Representing the interests of the community.
• Counselling individuals and explaining the results once the courts have left the community.
• Providing public legal education and information (PLEI) in person and, in some cases, over the radio.
• Referring individuals to other locally available services (e.g., counselling).

"We have to be counsellors. Being a counsellor is very draining. I always try to be positive. Sometimes it's just listening."

Courtworkers reported that the bulk of their time and effort is expended on interviewing clients, assisting in the completion of legal aid application forms, informing clients about the process and the system they are involved with, handling requests for information they receive from family law and criminal lawyers, and providing translation and interpretation services.

Pressures affecting Courtworkers

The pressures affecting Courtworkers can be divided into two categories: pressures to expand their role and the services they provide and pressures that result from their relationships with other players in the justice system.

Courtworkers experience pressure to expand their role and services in the areas of:

• Translation and interpretation - They may be asked to provide interpretation services to outside counsel or to the judge or the JP. This detracts from the time they have available to do other work or to provide services to their clients. Furthermore, requests to translate for a judge or JP put the Courtworker in a position of potential conflict.
• Trials - Some Courtworkers are being asked to represent accused at trials and feel that they do not have the necessary resources or training to do so.
• Alternative justice initiatives - Some Courtworkers report being asked to have a greater involvement in alternative justice initiatives, such as the Community Justice Committees. Such involvement is difficult for them because they see their role as representing the accused, their client, rather than working for the benefit of both sides of the dispute, which is the role of a Community Justice Committee member. The fact that Courtworkers are being asked to take on this role speaks to the limited community resources in Nunavut - no one else in the community is available to take on this responsibility. Nonetheless, it should be noted that Courtworkers generally support community-based justice initiatives.
• Pre-court services - Some legal aid lawyers suggested that Courtworkers could be more active in the drafting of materials and the preparation of cases.
• Post-decision services - Some respondents suggested that Courtworkers could also be involved in asking the Crown for variations of probation or undertakings.

Some respondents indicated that, overall, there is a pressure for Courtworkers to become more like lawyers. Several respondents raised concerns with this approach (discussed in more depth in the sub-section related to changes in Courtworkers' roles, below).

The primary pressure Courtworkers reported with respect to their relationships with other players in the justice system is a sense of being "looked down on" by the RCMP and the Crown counsel during the proceedings. In some cases, they are made to feel inferior to local JPs. In some communities, Courtworkers reported that the RCMP are unwilling to disclose information about charges. This attitude makes it more difficult for the Courtworkers to fulfill their mandate and serve their clients.

Courtworkers are also on the receiving end of pressure from community members. In some cases, they reported being pressured to breach client confidentiality by disclosing details of crimes, family conflicts, or related events. In other cases, they are challenged for representing accused persons, rather than victims.

Current barriers to effective delivery of Courtworker services

Courtworkers experience a number of barriers to the effective delivery of their services. Some of these barriers are related to infrastructure, others to a lack of resources or to the emotional and mental demands of the work. Barriers that were identified include:

• There is great disparity in the manner in which Courtworkers are compensated in various regions²³ and in available local facilities. Respondents also indicated that compensation for Courtworkers is inadequate.
• The workload is often too great for a part-time Courtworker to manage (the majority of Courtworkers are only part-time). Added to this is the fact that each community does not have its own Courtworker, so occasionally a Courtworker from one community must take on work in another.
• Courtworkers lack the tools to do the job. In some communities they are required to work from their homes, with little privacy, no dedicated phone lines or fax machines. They experience difficulty in making long-distance phone calls and in finding a place to interview clients that is safe for the Courtworker while still ensuring the security of the client and confidentiality. They often have no secure place to store confidential files
• A lack of recognition for their work and their importance from some actors in the court system and from the community.

"I need an office. My office is my bedroom. I am very uncomfortable if I have to interview men. I need a [dedicated] phone line. Right now, if I am interviewing someone, I need to kick out any visitors, kids, and turn off the telephone. I don't like keeping confidential files in my house."

These barriers result in a great deal of stress and frustration for individual Courtworkers. The high rate of turnover among Courtworkers can be directly tied to these frustrations, the poor compensation and benefits associated with the position, and the high degree of competition among government and Aboriginal organizations for capable and bilingual staff in communities.

Changes anticipated for Courtworkers

A number of changes are anticipated that will likely affect the roles and responsibilities of Courtworkers and, in turn, will result in changes to Courtworkers' jobs and training needs. Respondents highlighted the following changes:

• The Youth Criminal Justice Act - The Act, which will come into effect on April 1, 2003, includes a conferencing provision that will likely involve Courtworkers both as representatives of clients and as interpreters.
• A pilot project being considered by the Crown and RCMP could result in lay prosecutors in more communities (to replace RCMP prosecutors in Justice of the Peace courts). The crown is also giving consideration to giving these lay prosecutors some of the responsibilities of Victim Witness Assistants. The establishment of lay prosecutors, in conjunction with the significant efforts to train JPs to take on more responsibilities at the community level, will result in increased pressure on Courtworkers.
• The overall push to increase the ability of JPs to take on more complex issues in their courts - such as youth justice, family law, and criminal trials - will put a parallel onus on Courtworkers to have adequate training in these issues. (Currently, Courtworkers have never received any formal training in these areas, except to take legal aid applications and send them to head office.) It will also increase the need for Courtworkers, overall.

Some respondents had concerns with Courtworkers taking on more responsibilities in the areas of criminal law, family law, and civil law. Some respondents felt that Courtworkers should focus on family law and civil law, rather than criminal law, as there is a need in the communities for someone local, with Inuktitut language skills, to address these issues. Others felt that family law and civil law are much more complex than criminal law, and, therefore, that Courtworkers should remain focused on criminal law.

Finally, a number of respondents also indicated that if the role of Courtworkers is to expand and they are to become trained for and involved in activities traditionally reserved for lawyers, there is a need to develop a code of ethics for Courtworkers, similar to that which governs lawyers.

7.2 POTENTIAL TO MEET UNMET NEEDS

The pressure experienced by Courtworkers to take on more roles and responsibilities, in addition to the number of activities that they report being a part of their "unofficial" role, clearly indicates that there is an unmet need for Courtworker services in the communities.

Some areas in which respondents indicated that unmet needs exist are family law issues, youth justice issues, public legal education and information, community justice and alternative justice, and working with elders, who are now being asked to take on a larger role in the justice system as a way of incorporating traditional values and ideas.

Courtworkers and Justice of the Peace courts

A number of changes are anticipated that will likely affect the roles and responsibilities of Courtworkers and of the JP courts. Respondents highlighted the following matters:

• The pilot project being considered by the Crown and RCMP to have lay prosecutors in more communities, to replace the RCMP as prosecutors in local courts. The existence of lay prosecutors might result in increased expectations of Justice of the Peace courts to handle more cases locally. With a local JP and a local prosecutor, it will be critical that a trained local Courtworker be available to address the needs of the accused.
• Current efforts to increase the training of JPs are resulting in increased expectations for JP courts, both from the JPs and from the NCJ. JPs are being trained so they can be more self-confident and, where necessary, more assertive with respect to local authorities. The JP training program also aims to have the first JPs trained to sit as Youth Court judges (within six months), conduct preliminary hearings where the parties consent (within one year) and do more civil law work - especially child welfare cases (within two years). In all of these matters, there will be a concomitant requirement for improved training for Courtworkers.
• The RCMP's decision with respect to whether a case is sent to NCJ or to JP court. A change in RCMP policy with respect to a particular type of offence could result in a rapidly increased (or decreased) role for JP courts. This discretion can also result in significant differences in the role of JP courts from community to community, depending on decisions made by local RCMP officers.

7.3 RESOURCES REQUIRED TO FULFILL POTENTIAL

Several suggestions were made on ways in which the current pressures on Courtworkers could be alleviated and they could be better prepared to meet the challenges posed by upcoming changes in the role of JP courts:

• JPs must ensure that interpreters and translators are available, separate from Courtworkers, so that Courtworkers can focus on their primary duties.
• Increasing training for Courtworkers, including recognition and tiered certification, so that Courtworkers feel more confident taking on responsibilities at the community level when lawyers cannot be available
• Increasing the number of lawyers available so that Courtworkers are not required to take on responsibilities that would normally rest with a lawyer.
• Developing a system of lawyer mentors for Courtworkers, along with a full-time Courtworker Administrator and effective communications system, so that Courtworkers can solicit advice when needed from someone they trust. This would also serve to reduce Courtworkers' feelings of isolation.
• Certifying Courtworkers according to established standards and training levels. Certification would clarify Courtworkers' responsibilities. The Nunavut Legal Services Act allows for certification and recognition of Courtworkers by regulation.
• Promoting continuity and stability in the pool of Courtworkers by increasing the pay and benefits they receive, reflecting the level of certification they achieve, and providing office space and equipment.
• Clarifying the relationship between Courtworkers and the RCMP so that RCMP members can provide disclosure to Courtworkers and discuss the appropriate disposition of cases that are to be dealt with in the community.

A number of means for removing the barriers experienced by Courtworkers were suggested. These included:

• Improved training (specific areas where training is needed are discussed below).
• Improved compensation, in both salaries and benefits, so that they are consistent with other government workers'. This will result in increased respect for the role of Courtworkers. Although some respondents suggested making Courtworkers public servants (as was done in the NWT and which would ensure consistent pay scales and benefits on a par with other government workers), others pointed out that this option may not be appropriate for Nunavut, given the importance of ensuring that the NLSB is independent from the Government of Nunavut in all respects.
• Improved infrastructure, including offices, fax machines, telephones and phone cards, secure Internet access, paper and other office supplies. A side benefit of dedicated office space and Internet access could be the opportunity for video-conferencing, which would enable closer co-operation between Courtworkers and lawyers and would provide an opportunity for clients to see their lawyers.
• Improved telephone access to lawyers at the legal aid clinics (especially for Courtworkers in communities where there is no clinic).
• Full-time Courtworkers and an increased number of Courtworkers, so that there can be a Courtworker in each community. One respondent suggested that an effective way of recruiting more Courtworkers would be to use experienced Courtworkers as recruiters. They could visit the communities and, during their visit, take part in a local JP court session to demonstrate the attractions of the job to candidates.
• A Legal Aid Courtworker Trainer/Administrator, comparable to the Nunavut JP Administrator, who would be in charge of training and educational activities for Courtworkers - including provision/organization of manuals, mini-seminars in clinics and communities, lectures, practice courts, community justice speakers, etc. This position might initially be filled by a student on placement from the University of Victoria.
• Collaboration between the current JP training program and the new Courtworker Training Program.

Providing adequate training for Courtworkers

There is a consensus that the training that has been provided to Courtworkers to date has not been adequate for their current role. Over the years it has been sporadic, and only available when caseload pressures and budgets have permitted. Most Courtworker training, as a result, has been on-the-job training. The few senior Courtworkers in Nunavut have become qualified through experience. Courtworkers are also looking ahead, and realizing that the increased pressures they will experience, as a result of trends towards greater use of JP courts and other initiatives such as alternative justice, will also result in increased training needs. Specific areas where it was felt Courtworkers would benefit from more training include:

• Criminal law - In particular, courtroom procedure, advocacy, plea bargaining, and interviewing techniques.
• Family law and other civil law - Understanding statutes and the civil process, learning how to assist lawyers in preparation and follow-up.
• JP courts - Bail hearings, how to appeal a JP court decision, and how to obtain a transcript or tape of Justice of the Peace court proceedings.
• Professional issues - Maintaining confidentiality in difficult working situations, addressing conflict situations, assertiveness in the face of authority, and other ethical and professional responsibilities.
• Public legal education and information - Delivery techniques.

Several respondents indicated the need for a training system that builds on previous training received by Courtworkers, and is tied to an adequate pay and benefits scheme that is common to all Courtworkers across the territory.

As previously mentioned, the NLSB is in the process of developing a systematic and tiered approach to Courtworker training that will address many of the issues raised in this section. A tiered approach is particularly important so that the levels of Courtworker training available can be matched to the three tiers of JP training available, such that the Courtworker and JP working in a particular JP court have a compatible level of expertise and self-confidence. It is also hoped that tiered, formalized training will improve the relationship between Courtworkers and other players in the justice system and will improve the self-esteem and respect accorded to Courtworkers in general.

Finally, some respondents felt that improving Courtworker training, and the follow-on improvements in relationships and working conditions that would result, would be a significant means of retaining Courtworkers once they are trained.

7.4 SUMMARY OF SECTION 7.

The following table summarizes the key points relating to Section 7.0.

Table 7.1: Summary of Section 7.0

• Roles and Responsibilities of Courtworkers
  • Courtworkers are responsible for 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 an interface between the community and the justice system and counsel community members, provide public legal education and information, and participate in alternative justice programs (where they can do so without compromising their role as the advocate for the accused).
  • The roles and responsibilities of Courtworkers vary to a great degree from community to community, and are somewhat tied to factors such as the extent of their training and whether there is a Justice of the Peace court in their community.
  • Courtworkers experience a great deal of pressure to expand their role and services, as well as pressures due to their relationships with the RCMP and Crown counsel during proceedings, and with community members. It is expected that a number of pieces of new legislation and the push to increase the scope of Justice of the Peace Court activities will result in further pressure on Courtworkers.
  • Current barriers to the effective delivery of Courtworker services include a relative lack of infrastructure and resources, an unfair and inadequate compensation system, and a lack of recognition for their work.
• Potential to Meet Unmet Needs and Resources Required to Do So
  • Courtworkers have the potential to meet a number of unmet needs in the justice system in Nunavut, including in the area of family law, youth justice, public legal education and information, community and alternative justice, and Justice of the Peace courts.
  • In order to provide for these unmet needs, Courtworkers will require improved training, improved compensation, greater support from other members of the justice system (for example, translators and lawyers), and improved infrastructure. There should also be more Courtworkers, and more full-time Courtworkers in the system.
  • A number of areas were identified for increased Courtworker training. The NLSB is in the process of developing a systematic and tiered approach to Courtworker training that will match the three tiers of Justice of the Peace training currently available, and will be tied to a fair and universally applied pay and benefits scheme.

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[23] The budget for Courtworkers is administered at the local clinic level. The NLSB contributes to this budget through a contribution agreement, but the local clinic is free to allocate those funds to Courtworkers or to other resources, as it feels necessary. The NLSB has recognized the need to be more directly involved in the management of the Courtworker program, and has begun to work in tandem with the regional clinic boards and Directors on these issues.

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