Legal Aid, Courtworker, and Public Legal Education and Information Needs in the Northwest Territories
Thus far, themes concerning circuit courts have emerged with considerable consistency compared to other issues.
The primary feature of circuit courts that affects legal aid delivery to clients is the speed at which all processes occur. Lawyers described dockets in small communities of 20–30 cases, many of which included trials, that had to be completed in one day. The main impact of such a compressed schedule is that lawyers have less time to talk with clients and prepare their cases. While some respondents felt that this seriously compromises the quality of representation, the impact articulated by more respondents is that clients receive less support and explanation about the process, and their experience is often one of alienation and loss of confidence in a system they can’t understand. This can be exacerbated by the perception that the legal aid lawyer and Courtworker, arriving in the community at the same time as the rest of the court party, are simply all part of the same foreign system that has no intrinsic interest in their welfare.
One respondent specifically stated that confidence in the justice system would be increased if there were more Aboriginal representatives in the legal system (as lawyers or judges), but also felt that, for the most part, Courtworkers and translators can bridge the gap between Aboriginal clients and the non-Aboriginal delivery system. Most respondents, however, felt that the main cause of a lack of confidence in the justice system is the lack of time its representatives spend in the communities. As one respondent noted, spending time in the community is
“not just to do court, but to build familiarity with and respect for the court.”
A JP also emphasized the need for advance preparation by Courtworkers and legal aid lawyers in order to make the court-sitting as non-intrusive and as comfortable as possible for all parties:
“Embarrassment is the single biggest cause of facts not being relayed to the court. When everyone is prepared, on time and comfortable with each other, much more information is relayed to the court and adversarial situations avoided, with sentencing solutions agreeable to all.” At the same time, some respondents noted that, even if the Courtworker and/or lawyer arrive early, the client is sometimes not available. It is not uncommon for clients simply to appear in court on the court date, having made no attempt to contact the lawyer or Courtworker after being charged.
Courtworkers play an important role in locating and interviewing the accused and witnesses, and in helping with explanations that lawyers have no time to give. However, the Courtworkers are also under significant time constraints themselves. On circuit, they often have no privacy in which to interview clients and, in some instances, have used their hotel rooms, where it was feasible. In other respects, circuit is easier for Courtworkers because there is less of a requirement to do work in court on behalf of the client, as a lawyer is always present.
The main recommendations for addressing the compressed time schedule are:
- Have the Courtworker and lawyer arrive in town the day before the rest of the party.
- Have a part-time Courtworker resident in some of the smaller communities.
- Have a second lawyer on the circuit.
These recommendations would involve increased expenditures for legal aid. There are also logistical difficulties in flying lawyers or Courtworkers into a community a day early if the circuit comprises several communities on consecutive days and only one lawyer. That is, the lawyer could only go early to the first community. Furthermore, most of the flights are by a charter that carries the entire court party. It is a significant expense to charter a flight for only one person. Nonetheless, the Legal Services Board has flown a lawyer into a small community one day in advance to prepare for a significant case. In one example, the respondent said,
“It cost an extra $1000, but it avoided a frustrated judge, a poorly served client, and one or more adjournments.”
In one way, quality of service may be superior on circuits compared to resident court. Defence usually receives disclosure information in advance of the circuit, whereas in resident courts it is usually not available until just before first appearance.
A small number, in several categories of respondents, suggested that some private lawyers
“play the system” by asking for (unnecessary) adjournments, and/or by charging to the case cap even if not all time is used. Clearly, to the extent that such practices exist, clients receive a lesser quality of service.
In general, respondents felt that delays are not a significant factor in circuit cases. Even though, when clients plead not guilty in a circuit court, the case is usually adjourned to the next circuit date, most respondents felt that the court’s policy is to minimize adjournments. In fact, this policy can also create significant pressure on the lawyers and Courtworkers to complete the case in one sitting (or, where a trial is involved, two sittings). Respondents did not speak to the possibility that this could also create pressure on the accused to plead guilty. Several lawyers stated that Courtworkers are reluctant to undertake representation on behalf of clients in the pressured context of circuit courts because of what some respondents felt were impatient attitudes of some judges toward Courtworkers. These attitudes were considered, in part, to be related to the judges’ desire to avoid adjournments in circuit communities.
It was widely perceived that there are more adjournments and appearances in resident courts, simply because they have less impact on case delay (e.g., a few days or a week) compared to circuit courts (six or seven weeks).
Table 9 lends support to these perceptions, especially in regard to adult cases in Territorial Court. It shows that:
- Adult cases on circuit have generally been completed faster than cases in resident court, and their average completion time has always been shorter than those in the resident court in Yellowknife.
- Youth cases tend, on average, to take only slightly longer in circuit courts than in resident courts (by only as much as 20 percent longer in the current year). This is likely explained by the requirement for pre-disposition reports for youth in some cases, which would delay sentencing until the next circuit.
- In Supreme Court cases there is more of a delay problem for circuit cases than in Territorial Court. Although circuit court cases were, on average, only two days longer than resident court cases in 2000, they were 41 days longer in 2001, and 16 days longer in 2002.
In general, continuity of counsel was seen to be handled well under current arrangements. That is, either staff counsel act as defence for prescribed circuits, or contracts for circuits are held by private counsel on an extended basis. When second counsel is necessary, for reasons of conflict or volume of cases, there is less continuity.
Continuity of counsel is seen as a benefit to the communities and clients, as defence counsel come to know the communities, local issues, families and even clients themselves. A small minority of respondents felt that this familiarity may also breed cynicism because of the frequency of repeat offending.
3.4 Other Issues
Occasional mention was made of the following points:
- The RCMP have influenced in subtle ways – by, for example, picking up the circuit party at the plane. In one instance, the RCMP refused to give the defence counsel a lift back to the plane because of the dynamics in the court.
- Extra costs can be incurred, for example, if an individual is incarcerated in Yellowknife and has to be flown back to a circuit community to enter plea on a second offence.
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