Legal Service Provision in Northern Canada
Summary of Research in the Northwest Territories, Nunavut, and the Yukon

9. ACTIVITIES PRIOR TO FIRST APPEARANCE

9. ACTIVITIES PRIOR TO FIRST APPEARANCE

The method of service delivery to clients prior to first appearance varies between the three northern jurisdictions. However, concerns over access to representation prior to first appearance and provision of service by telephone are common to all three jurisdictions.

9.1 Method of service delivery prior to first appearance

The method of service delivery prior to first appearance differs significantly between the three jurisdictions.

The Northwest Territories

LSB counsel provide the vast majority of service prior to first appearance. CWs report only very infrequent requests to provide service in this area.

The Yukon

YLSS-funded counsel provide the majority of service prior to first appearance, although CWs also provide services in cases where the accused cannot or will not consult a lawyer. Service prior to first appearance is generally provided by duty counsel.

Nunavut

Service prior to first appearance is primarily provided by CWs. Service provision by NLSB counsel is very infrequent.

9.2 Concerns relating to service delivery prior to first appearance

9.2.1 Access to legal advice

Respondents in all three jurisdictions raised concerns over access to representation prior to first appearance.

The Northwest Territories

The majority of clients do not contact counsel prior to first appearance. Some respondents felt that the RCMP is not providing the accused with adequate information to contact counsel. The RCMP reported that it is very difficult to contact counsel in the evenings or at night, when demand is highest.

The Yukon

Service prior to first appearance is generally provided by the duty counsel. Respondents in the Yukon also reported difficulty contacting duty counsel for service prior to first appearance during the day (as the counsel are normally in court).

Nunavut

There were conflicting opinions with respect to access to legal advice prior to first appearance. JPs reported that the vast majority of accused do have access to advice unless they choose otherwise. However, the NLSB and CWs reported that some accused are unrepresented because of lack of access to counsel or a CW. The remand facility in Nunavut (the Baffin Correctional Centre in Iqaluit) typically holds approximately 30 individuals on remand (it is built to hold 15), and lack of access to counsel was reported as the most significant factor affecting the number of prisoners on remand.

9.2.2 Service by telephone

Respondents in all three jurisdictions raised similar concerns with respect to providing legal services prior to first appearance over the telephone. It was felt that communicating by telephone is not sufficient for the CW or counsel to adequately represent the client - due to language barriers, difficulty assessing the client's degree of comprehension, disclosure issues, and concern over interaction between the RCMP and the JP (for example, passing written messages that the counsel or CW is unaware of).

The difficulties inherent in providing service over the telephone are significant enough to have an effect on quality of service, to the point of unmet need. As a result, many counsel refuse to deliver service prior to first appearance over the telephone. However, in situations where local counsel or CWs are not available to provide these services in person, refusal to provide service over the telephone also results in unmet need.

9.3 Unmet needs prior to first appearance

Table 9.1 summarizes the extent and nature of unmet need prior to first appearance in the three northern jurisdictions.

Table 9.1 - Unmet Need Prior to First Appearance
Jurisdiction Unmet Need
Northwest Territories
  • Majority of clients do not contact counsel prior to first appearance, therefore unmet need for service exists.
  • CWs provide few services in this area.
  • Significant difficulties are encountered providing service over the telephone, but some telephone hearings are conducted, despite concerns over quality of representation.
Nunavut
  • Majority of clients receive service from CWs.
  • Unmet need for representation exists, particularly in communities with no resident CW or legal services office.
  • Difficulties encountered in providing service by telephone are such that telephone hearings are unusual.
Yukon
  • Service is provided by duty counsel in court. There is some unmet need that results in some unmet need for types of cases not covered by the YLSS (approximately 30 percent of accused in Criminal Code cases are unrepresented at first appearance).
  • CWs provide some services in this area.
  • Approximately 10 percent of hearings are conducted by telephone, although difficulties are encountered in providing quality representation.