Legal Service Provision in Northern Canada
Summary of Research in the Northwest Territories, Nunavut, and the Yukon
13. FEDERAL AND TERRITORIAL LEGISLATION AND POLICIES
Respondents from all three jurisdictions reported that federal and territorial legislation and policies have a significant impact on aspects of service provision - on demand, quality of service, and cost. In some cases, there were commonalities among the jurisdictions in terms of the legislation and/or policies identified. However, there were also many issues unique to each jurisdiction. Finally, all three jurisdictions identified resource allocation decisions as having a strong impact on service delivery.
13.1 Federal and territorial legislation
The following federal and territorial legislation were identified as having a significant impact on service provision by increasing the time required to manage cases:
- The Northwest Territories
The Canadian Charter of Rights and Freedoms (increased awareness of individual rights and increased complexity of other cases); the new Youth Criminal Justice Act (YCJA) (increase in jury trials, maximum penalties, conditional sentences); drug-related legislation (interception of communications, search warrants, confiscation of funds, and higher penalties for marijuana cultivation); and uttering threats (now a separate charge).
- The Yukon
Federal firearms legislation and forensic DNA analysis legislation.
Federal firearms legislation and the YCJA. Also, in general, a lack of consultation on the part of the federal government when developing legislation, which can have severe impacts on service provision in Nunavut, given its unique court structure and cultural differences.
Respondents in the Yukon also identified two changes in legislation that reduced the defence time required. Changes to the Criminal Code increased the RCMP's options for releasing offenders (reducing the number of show cause hearings) and the Young Offenders Act increased the level of diversion, decreasing the need for defence counsel in Youth Court.
13.2 Federal and territorial policies
The following federal and territorial policies were identified as having a significant impact on service provision by increasing demand for services and the time required to provide services.
- The Northwest Territories
Policies such as zero tolerance for spousal assault and the territorial policy of laying a
"failure to appear"charge in response to non-appearance in traffic offences were felt to increase overall demand for legal services. Policies such as community-based alternative justice measures, creative conditional sentencing, and the territorial policy towards community courts (as opposed to a central resident court) were felt to increase the time required to provide services.
- The Yukon
Policies such as zero tolerance for spousal assault were felt to increase overall demand for legal services. Policies such as the use of alternative sentencing procedures, Domestic Violence Treatment Option (DVTO) court, youth justice panels, and Crown case assignment and handling procedures (lack of consistency, late disclosure, etc.) were felt to increase the time required to provide services.
Policies such as zero tolerance for spousal assault, failure by the Crown and RCMP to make use of alternative justice measures, lack of prosecutorial oversight on the part of the Crown, and the extent of undertakings and conditions in sentencing were felt to increase overall demand for legal services. Policies such as the Crown electing to proceed by indictment more than strictly necessary were felt to increase the time required to provide services.
Respondents in Nunavut also pointed out that PLEI activities undertaken by the federal government at the national level could have a significant impact on demand for legal services (for example, recent initiatives on child support).
13.3 Resource allocation
Respondents in all three jurisdictions reported that there is an imbalance in resource allocation between legal services organizations and the Crown. As a result, the Crown "outguns" the legal services organizations - Crown prosecutors are able to prosecute cases far more intensively than the legal services organizations are able to defend them. The Crown also finds it easier to recruit and retain employees, as the opportunity to transfer from jurisdiction to jurisdiction is available and the Crown is able to provide housing and other benefits.
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