Legal Aid, Courtworker, and Public Legal Education and Information Needs in the Northwest Territories
7. Unmet Needs Prior to First Appearance
7. Unmet Needs Prior to First Appearance
7.1 Data on Frequency of Show Cause Hearings
Court Services does not record data on the frequency of show-cause hearings. The Legal Services Board only reflects show cause activity in presumed eligibility activity statistics recorded by legal aid lawyers. These data are shown in Table 5 (Section 2.1): 119 show causes hearings were recorded for 1999–2000, 67 for 2000–2001, and only 11 for 2001–2002. Unfortunately, no show cause hearing data are recorded for Courtworkers or for lawyers other than duty counsel. It is not possible, therefore, to determine if this major decline means clients are increasingly unrepresented in these hearings.
7.2 Barriers
There was considerable variance in practices, experiences and identification of the extent of problems from respondent to respondent, and from community to community. For persons who are released after arrest and charge, the main barriers to effective legal advice and support, as perceived by respondents, are:
- The majority of clients do not contact a lawyer or Courtworker. Respondents felt that RCMP should routinely provide charged persons with information about Legal Aid and whom to contact.
- Charged persons are often transient (especially in Yellowknife) and many lack telephones. It can be difficult to prepare for the case, and these results in long docket days.
- Several lawyers felt that even if individuals are released by a JP, many frequently agree to conditions that are unreasonable, from a legal standpoint, and that would not likely be imposed, or would be more flexible, if the person were represented. One respondent noted that the danger of agreeing to unrealistic conditions (e.g., an alcoholic agreeing not to drink) is that it sets the accused up for a likely breach of the conditions.
The main barriers for persons detained after arrest are:
- Two thirds of the RCMP respondents said it is extremely difficult to contact a lawyer in the evenings or at night. Estimates of non-availability ranged from 5 percent to 40 percent of cases. Some lawyers and JPs corroborated this viewpoint, and many in both respondent groups felt there should be a 1-800 “hotline” for detained persons to reach counsel after working hours. The LSB regularly updates and distributes a list of lawyers who are willing to be contacted “collect” by persons detained in cells. LSB also gives a cell phone number for an on-call staff lawyer, but detained individuals still complain of not being able to get through to the lawyer(s).
- Most lawyers agreed that it is difficult to assess a client's ability to understand instructions on the phone. Frequently, clients are intoxicated, thus exacerbating communication problems. A third of the JPs said that cultural factors also exacerbate problems in effectively using the phone, i.e., that accused are wary of opening up to a stranger on the other end of the line and may be bewildered by the justice system. Language barriers were seen as a less prevalent problem (one RCMP respondent estimated 10 percent of cases) but, nonetheless, regardless of language, one RCMP officer estimated that 50 percent of individuals don't really understand what the lawyer is trying to communicate to them by phone.
- Courtworkers appear to field fewer calls from detained persons (estimates ranged from one per month to 10 per month), but several respondents felt that Courtworkers could play a useful role at this stage because of their knowledge of the community and the reliability of the accused if released.
In terms of show cause hearings, the vast majority are held in JP courts, unless a Territorial Court is sitting on circuit and it would be more expeditious to hear the matter before a judge. Although the intent of JP courts is to have more matters heard in local communities, all show cause hearings for the Beaufort Delta area are held in Inuvik to ensure more effective representation for clients. Bail hearings are held in JP court in Hay River, and cases may be referred from other communities if there would be a time delay without such a transfer. Similarly, show cause hearings originating in other regions may be referred to Yellowknife. The main reasons are that the local community may lack a JP who can hear the case, the proximity of the community to Yellowknife, and the refusal by some defence lawyers to participate in a bail hearing by phone.
The main issues in regard to show causes hearings are:
- Lawyers feel they (and their clients) are at a disadvantage in telephone show cause hearings because they are unable to consult with clients; unable to assess their circumstance and capacity; lack any advance notice (they are sometimes called by RCMP on less than an hour's notice); and are unable to get contextual clues (e.g., by reading the body language of the client, the JP and the RCMP).
- Several respondents felt that video-conferencing, if technically feasible, would be an improvement. One respondent said video-conferencing is technically feasible in two communities. In the focus group, participants put the concept of videoconferencing in a wider perspective, urging the LSB to explore and embrace technological approaches to a number of issues. This would likely require collaboration with other departments or agencies that could be multi-purpose users. It was also emphasized that the main value of a technology such as video-conferencing would be in the many small communities without a resident court rather than in the larger sub-centres such as Inuvik or Hay River.
- Approximately half the Courtworkers felt reasonably confident appearing for a client in a show cause hearing. Others felt less confident because of the infrequency with which they are required to do it, or because they lacked training.
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