THE NEW-BRUNSWICK ABORIGINAL DUTY COUNSEL PROJECT
Ab Currie
June 2000
The present study was funded by the Research and Statistics Division, Department of Justice Canada. The views expressed herein are solely those of the author and do not necessarily represent the views of the Department of Justice Canada.
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EXECUTIVE SUMMARY
This project was designed to improve the level of legal aid service to Aboriginal people in New
Brunswick. The project was implemented on an experimental basis in Kent County, New
Brunswick to serve Aboriginal people from the Big Cove, Buctouche, and Indian Island First
Nations communities.
The need for a different approach to meeting the needs of native people became apparent with the
large number of adjournments required by Aboriginal people at first appearance court. It was
suspected that the difficulty in moving legal matters of Aboriginal people through the court
reflected a number of difficulties experienced by Natives in communicating with the non-Aboriginal
lawyers providing regular duty counsel service.
In order to explore the issues more carefully, and at the same time to put in place immediate steps to address the situation, an Aboriginal lawyer was hired to provide duty counsel service for
Aboriginal people in the provincial court at Richibucto. The lawyer spoke Mi'Kmaq, the
Aboriginal language of the region. The project commenced in December 1998. The project was
supported in part by a contribution from the Department of Justice Canada, and monitored during
the first year by the Research and Statistics Division of the federal Department of Justice.
During year one the project served 146 individuals, with a total of 305 duty counsel contacts. The
most significant characteristic of the population of Aboriginal clients related to language ability.
Twenty-four per cent of the clients reported that they spoke English poorly. Surprisingly, 8 per
cent reported that they spoke only Mi'Kmaq This would explain in large measure the difficulties
experienced by the non-Aboriginal lawyers providing service to this client population.
As well, a high proportion of the clients, 32 per cent, were women. This is much higher than the
percentage of women among legal aid clients generally. Compared with Aboriginal men,
Aboriginal women did tend to commit less serious offences than men. However, following the
duty counsel stage of the criminal justice process, Native women received legal aid certificates in
about the same proportion as they received duty counsel service. This indicates that women did
not experience a disadvantage in receiving legal aid service because of any tendency to commit
less serious offences.
The main outcome of the first year of the project was that adjournments for Aboriginal people
was significantly reduced. Data from the same court for two years prior to the project showed
that 43 per cent of Aboriginal people in 1996-97 and 46 per cent in 1997-98 required one or more
adjournments. This was reduced to 24 % in the Aboriginal duty counsel project during December
1998 to November 1999. Duty counsel data from court proceedings in the Richibucto court
served by a non-Aboriginal lawyer during 1998-99 showed that 45 per cent of Aboriginal clients
required one or more adjournments, a level very similar to the pre-project period in the court in
which the Aboriginal duty counsel project lawyer worked.
It is important to note that the decrease in adjournments did not translate into guilty pleas.
During the pre-project period in the Richibucto court, 17 per cent of Aboriginal clients entered not guilty
pleas at first appearance in 1996-97 and 25 per cent entered not guilty pleas in 1997-98. In comparison, during the December 1998 to November 1999 period, 49 per cent of the clients of
the Aboriginal Duty Counsel project entered not guilty pleas at first appearance. This compares
with 28 per cent of Aboriginal people entering pleas of not guilty at first appearance in the
comparison court served by the non-Aboriginal lawyer during the same time period.
The Big Cove First Nation has a number of community services such as anger management,
marital counseling, and drug and alcohol counseling. These services are available to deal with
issues that may be related to the actual offences committed by Aboriginal people. The Aboriginal
lawyer reported that she referred clients on 71 occasions to the various community services. This
signals a more "holistic" approach to the needs of Aboriginal clients than may have been the case
in the past.
In conclusion, this "intensive" form of duty counsel was successful during the first year of
operation. The Aboriginal Duty Counsel project achieved both client service and system
efficiency objectives. The preliminary data from the first year of operation demonstrate that this
project is an effective way to meet the special needs of this client population.
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