|
 |
Nunavut Legal Services Study
Final Report
October 16, 2002
Previous Page | Table
of Contents | Next Page
EXECUTIVE SUMMARY
INTRODUCTION
The Nunavut Legal Services Study was commissioned by the Department of Justice
Canada in order to gain an insight into the state of legal service provision
in Nunavut; the challenges faced by legal services providers (including the
Nunavut Legal Services Board - NLSB); the cost drivers associated with legal
service provision; the areas where unmet need for legal services exists; the
impact of this unmet need on the individuals and communities involved; and the
ways in which these challenges can be addressed.
The study focused on 10 issues, arrived at jointly by representatives from
Justice Canada, the Nunavut Department of Justice, and the NLSB:
- The impact of court structure, geography, and culture on the demand for
legal services, pattern of service delivery and quality of services
- Impacts of circuit courts on clients
- The increased role of Courtworkers
- Unmet needs for legal representation in Justice of the Peace Court
- Unmet needs in family and other civil matters
- Unmet needs prior to first appearance or first instance
- Interplay between the criminal and civil spheres in the generation of legal
needs
- Public legal education and information needs
- Factors driving legal representation costs
- Impacts of key federal legislation, policies, and resource allocation decisions
on cost per case and territorial allocations of legal aid resources
A team of researchers from IER and Dennis Patterson conducted the Nunavut Legal
Services Study. The study made use of a variety of methodologies, both quantitative
and qualitative, in order to examine the issues:
- Interviews - Over 40 interviews were conducted (in person and by
telephone) with a broad range of stakeholders in legal service provision.
- Document review - The research team was provided with documents from
a number of different sources, including Justice Canada and the NLSB, which
were reviewed as part of the study.
- File-based research - Legal aid applications and client files from
prior to July 2000 and legal aid applications from after July 2000 were reviewed,
along with the final and concluded dockets for circuit courts in Nunavut.
File-based research was completed in Yellowknife and in Gjoa Haven.
- Workshops - Workshops were conducted in Iqaluit and Cambridge Bay
in order to seek further input from community members and to validate, where
possible, the study's preliminary findings.
- Client interviews - Fourteen clients were interviewed by staff from
the Maliiganik Tukisiiniakvik clinic, in order to gain insight into the experience
of clinic users, a key stakeholder group.
BACKGROUND INFORMATION: NUNAVUT AND THE NUNAVUT LEGAL
SERVICES BOARD
Nunavut
The population of Nunavut is distinct from that of the rest of Canada in many
ways. These distinctions form the context in which legal services are provided.
They have an impact on the demand for legal services, the types of legal services
required, and the ways in which those services can best be provided. Key socio-economic
issues include:
- Population size and distribution by age group - Nunavut has the smallest
population of any jurisdiction in Canada. The population is very young, with
the majority of individuals less than 14 years of age in 1996 (Census 1996).
The population is distributed among 28 communities and several outposts, many
very remote and difficult to access.
- Family structure - Family structure in Nunavut is more diverse than
in other parts of Canada. Common-law and one-parent families make up half
of all families, the highest proportion in Canada.
- Housing and living arrangements - Some 57 percent of Nunavut's families
live in rental housing, while the remainder own their homes. The average number
of people per household (3.9) is higher than in any other Canadian jurisdiction.
- Education - In 1996, almost half of the population of the NWT (which
then included Nunavut) over the age of 15 did not have a degree, certificate
or diploma, and only 13 percent had a high school graduation certificate.
- Language and ancestry - The majority of the population of Nunavut
are Inuit and speak Inuktitut as their mother tongue.
- Crime and policing - Since Nunavut was established in 1999, the number
of police officers has been increasing relative to the population. Nunavut
has the third highest number of police officers per person in Canada (only
the NWT and Yukon have more). Nunavut has one of the highest overall crime
rates in Canada and the highest violent crime rate in the country.
- Employment - The average unemployment rate across all regions of
Nunavut is 17.4 percent. The main sources of employment are the territorial
government, local government, construction, and tourism (in some communities).
Many people from smaller communities list their main source of employment
as "traditional activities."
- Fetal Alcohol Syndrome and/or Effect (FAS/E) - Several workshop participants
identified FAS/E as a significant problem in Nunavut. Unfortunately, no statistics
were available to validate this perception. Children with FAS/E experience
difficulty recognizing the consequences of their actions and may lack the
capacity to make decisions about right and wrong, and to solve problems effectively.
Nunavut's legal system
Nunavut's legal system is unique in Canada due to the Nunavut Court of Justice
(NCJ), a unified court that replaces the dual court model (Territorial/Provincial
and Supreme) used in the rest of Canada. This model was intended to improve
service to residents of Nunavut by improving access to the court (by increasing
the frequency and length of visits to communities) and simplifying the legal
system. Another important characteristic of the Nunavut legal system is the
practice of presumed eligibility, which means that individuals do not have to
complete a legal aid application in order to receive the services of a duty
counsel while in court. Only if the individual wishes to plead guilty (in a
criminal case) or if the case becomes very complex will a formal legal aid application
be required.
Nunavut's legal system is also a reflection of the process through which Nunavut
was created. This process led to a commitment to decentralization of government
services (and the benefits of employment and infrastructure development associated
with providing those services) and Inuit involvement in decision-making on all
issues, which is also reflected in the organization of the legal system and
of the NLSB.
The legal system in Nunavut is highly complex and interdependent. All of the
components of the legal system interact and influence one another. This posed
a challenge for the research team in isolating issues related to the NLSB from
those related to other parts of the system. It also resulted in the need to
discuss other parts of the system in order to gain insight on how issues that
at first appeared separate from the NLSB could, in fact, be linked back to concerns
over costs and service provision.
The Nunavut Legal Services Board
The NLSB has three primary roles: to provide legal aid services; to manage
the Courtworkers program; and to provide public legal education and information
(PLEI). The Act governing the NLSB indicates that these objectives must be accomplished
to the best of the Board's ability.
The Board has a budget of $3,362,000 in 2002/03. There are four clinics: one
in Cambridge Bay (Kitikmeot Region); one in Rankin Inlet (Keewatin Region);
one in Iqaluit (Baffin Region); and one in Pond Inlet (the High Arctic office,
which is also in the Baffin Region). The NLSB employs eight staff lawyers, with
the services of an additional four private lawyers on a contract basis to supplement
staff lawyers as necessary, and fourteen Courtworkers (through the regional
clinics), three of whom are full-time.
Demand for the Board's services, as measured by the number of legal aid applications
received, is increasing steadily. The Board denies very few of the applications
it receives for legal aid. The majority of denied applications are in the areas
of family or other civil law. When an application is denied, it is not usually
because the applicant is financially ineligible or because of the type of case
involved. Rather, the most common reason for denial of an application is that
the applicant does not provide all of the information necessary to process the
application. The second most common reason for denial is that the Board believed
that the case is unlikely to result in any benefit for the applicant.
SERVICE DELIVERY: DEMAND, PATTERN, AND QUALITY
The demand for legal services and the pattern and quality of legal services
provided by the NLSB are affected by a number of different factors, including
court structure (including both the NCJ circuit courts and the Justice of the
Peace courts), geography, culture, and human resource constraints.
Court structure - Circuit courts
Respondents indicated that the circuit court structure is marked by long intervals
between visits to communities and short times spent in the communities. This
structure is believed to cause:
- Large court dockets, which result in a very heavy workload for all members
of the court party while in the communities, and concerns about the quality
of service provision.
- The extensive use of deputy judges, who do not provide the continuity and
familiarity with Nunavut and particular communities that a resident judge
provides (this issue will be somewhat alleviated by the recent appointment
of a third NCJ justice).
- Concerns regarding the handling of spousal and sexual assault cases. Some
respondents indicated that Victim Impact Statements are being taken by RCMP
officers, but may not be presented to the court. They also reported that many
non-Aboriginal members of the justice system (at all levels), out of a desire
to be culturally sensitive, may be condoning attitudes towards women and violence
against women that negatively affect those women in their communities.
- Difficulties in gaining access to clients, who often do not take advantage
of the opportunities provided to meet with their counsel before they are required
to appear in court. This is aggravated in the 13 communities (out of 28) where
there are no resident Courtworkers to encourage attendance. There are rarely
any consequences for individuals who fail to meet with the defence counsel
before the court session, and this often contributes to delays and adjournments,
as well as to the workload of defence counsel during the court's visit to
a community.
- Pressures to clear cases from the docket, in order to meet the NCJ's goal
of providing faster, more accessible justice. In some cases, this results
in cases being returned to the JP court system, which in some respondents'
opinions is not always appropriate.
- Delays during circuit courts, which can be attributed to a number of factors,
geographical (e.g., weather) and structural (e.g., length of docket, lack
of opportunity to consult with clients, etc.). The general perception is that,
while delays and adjournments occur too frequently in all cases, family law
and other civil law cases bear the brunt of these problems as they are always
last on the docket, after the criminal law cases. In turn, this means that
the burden of delays may be borne disproportionately by women, who are more
frequently the clients in family law matters.
- Discontinuity in defence counsel, which places stress on clients (for obvious
reasons), but also on counsel, who must bring themselves up to speed on the
cases they are not familiar with as well as address the client's frustration
at the change in counsel. Respondents indicated that, although they support
the practice of presumed eligibility, they believe that it contributes to
discontinuity in defence counsel when combined with the overall constraints
on human resources available to the NLSB.
Court structure - Justice of the Peace courts
Justice of the Peace (JP) courts in Nunavut are intended to hear a wider range
of cases than is common in the rest of Canada, in order to relieve some of the
burden on the NCJ. However, although a significant effort is taking place to
train all JPs to carry out these expanded duties, at the time of writing the
JP courts have not yet been able to take up all of the slack resulting from
the elimination of the Territorial Court. As a result, the NCJ is dealing with
a significantly increased workload of cases that might otherwise have been heard
in JP court, in addition to facing increasing demand due to the overall socio-economic
situation, which exacerbates some of the problems discussed above.
Geography
The geography of Nunavut, and, particularly, the scattered, remote nature of
its communities, affects legal service provision in a number of ways:
- It makes it more difficult for the NLSB counsel to go to the community beforehand
to meet with clients.
- It makes it more difficult for the court to adhere to its schedule of visits
to communities.
- It affects the perceived independence of NLSB counsel, as they must often
travel on the same chartered airplane as the rest of the court party.
- It results in a very high cost of travel, which, in turn, can trigger a
physical and emotional disconnect between clients and their representatives.
(For example, civil clients often have their entire case dealt with without
ever meeting their lawyers, and criminal clients in show cause hearings are
usually interviewed over the telephone.)
- It causes infrastructure difficulties that compound communications problems
(for example, limited Internet access) and make research more difficult. The
lack of appropriate remand facilities in local communities also means that
many accused are transferred to the Baffin Correctional Centre in Iqaluit
to wait to speak to a lawyer or to go to court. This is very difficult for
the client.
Culture
A number of respondents recognized that the justice system in Nunavut is making
efforts to be more culturally sensitive. However, culture and cultural differences
continue to have a negative impact on legal service provision and the ability
to represent clients effectively. Such problems include:
- Language issues - Most Inuit do not have English as their first language.
Translating and understanding the concept at hand, as well as the actual words
used to represent that concept, are often extremely difficult. Some of the
clients interviewed during the study indicated that they did not understand
what was happening during the proceedings because of language issues. Others
indicated that they only understood because the Courtworker explained to them.
- Cultural disconnects and pressures - In many ways, Inuit culture
differs from the southern Canadian culture that underlies the justice system.
For example, many Inuit are reluctant to plead not guilty if they did commit
the crime and are susceptible to subtle pressures from authority figures.
In family law and civil law, there are also a number of disconnects. For example,
the practice of custom adoption (where a family member adopts the child if
the birth parent cannot care for it) does not match up easily with the concept
of child support payments.
- Literacy and education - Illiteracy, or low levels of literacy, in
English and in Inuktitut may also be issues that make it more difficult to
provide effective services to clients.
COST OF SERVICE PROVISION
A number of drivers have a significant effect on the cost of legal service
provision in Nunavut. They include:
- Geography - NLSB counsel must travel to perform their duties in circuit
court, and staff from the NLSB headquarters in Gjoa Haven must travel frequently
to perform administrative duties. Given the difficulties of travel in Nunavut,
geography implies significant additional costs for service provision.
- Socio-economics - Language issues and the level of formal education
of clients increase the amount of time and effort needed to service individual
clients. The socio-economic characteristics of Nunavut also contribute to
higher overall demand for legal services.
- The public-sector economy - The government of Nunavut is the territory's
largest employer and the largest economic force in Nunavut. Therefore, it
is essential that the NLSB remain completely independent of the government
in order to be able to provide independent legal advice to those who wish
to challenge a government institution.
- Decentralization and participation - The commitment to decentralization
and Inuit participation on the part of the government of Nunavut results in
the NLSB head office being located in Gjoa Haven and the need to administer
and support three regional clinic boards, as well as the NLSB.
- Difficulty in obtaining and retaining human resources - The NLSB must invest
considerably in recruitment and retention activities, while managing the impacts
of a chronic lack of human resources.
- Federal legislation - New legislation often entails increased demand
for the NLSB's services. Respondents also indicated that new legislation is
also developed without adequate consideration of the effects on Nunavut, and
does not address the social problems leading to crime in the territory.
- Federal policies - Policies that affect the actions of the RCMP and
Crown counsel (for example, zero tolerance for spousal assault), the actions
of judges (for example, the "return back to court" policy that requires
offenders to reappear in court on a given date), and PLEI activities (that
encourage demand for NLSB services) all place additional stress on the justice
system and on the NLSB.
- Federal resource allocation decisions - There appears to be an imbalance
in resource allocation between the NLSB and the Crown, such that the NLSB
is "out-gunned." Furthermore, as the NLSB is unable to raise any
revenues to support its own activities, it is not in a position to attempt
to address funding concerns on its own.
THE EXTENT OF UNMET NEED FOR LEGAL SERVICES
There was unanimous agreement among workshop participants and interviewees
that there is unmet need for legal services in Nunavut. However, when discussing
this topic, it became clear that some respondents defined unmet need as "lack
of representation" (i.e., no counsel or Courtworker available), while others
considered unmet need to also include "lack of quality representation."
It also became clear that the nature and extent of unmet need vary from region
to region and between smaller and larger communities in any given region.
Unmet need in the area of family and other civil law matters is clearly a case
of lack of representation. Although the NLSB is mandated to provide service
in these areas, criminal cases take priority over civil law matters. (This is
also the case on court dockets, where family and civil law matters are frequently
adjourned for lack of time.) There are also practical limitations on service
provision in this area, foremost of which is the lack of non-NLSB practitioners
to represent the "other side" of the dispute. There are unmet needs
in nearly all areas of civil law in Nunavut. With respect to family law, key
areas of need are child welfare, child support, property distribution after
divorce, alternative dispute resolution, and issues related to custom adoption.
In circuit courts, given the system of presumed eligibility and the Courtworker
program, lack of representation appears to be less of an issue. However, given
the structural issues associated with circuit court work (see discussion above)
and the limited human resources at the NLSB, this is an area where respondents
raised concerns over the quality of representation being provided.
In JP courts, the degree of unmet need seems to vary across the jurisdiction.
In some areas, Courtworkers provide the majority of representation in JP courts.
In other areas, NLSB lawyers provide representation (although this was considered
to be a fairly rare occurrence when Courtworkers were available). However, in
general, respondents indicated that if an individual is unrepresented in JP
court it is of their own volition. Many JPs indicated that they would refuse
to go ahead with an unrepresented accused. However, questions about the adequacy
of the current Courtworker training program (which is being revised and improved)
and the monitoring of JP courts did cause some respondents to raise concerns
about the quality of the representation being provided in these courts.
With respect to unmet need during show cause or bail hearings (the most common
situations where representation is required prior to first appearance), respondents
noted that these duties are primarily fulfilled by Courtworkers, but that, occasionally,
duty counsel serve as representatives. Several respondents, including Courtworkers
and representatives of the NLSB, indicated that there are situations where the
accused is unrepresented prior to first appearance because neither a Courtworker
nor a duty counsel is available to represent them. In addition, the concerns
raised about the training of Courtworkers with respect to JP court representation
were also raised with respect to representation prior to first appearance.
Finally, with respect to prisoners on remand in Baffin Correctional Centre
(BCC), it is clear that there is insufficient representation available. The
BCC typically houses 30 prisoners on remand (it was designed for a maximum of
15). These individuals are waiting to see a lawyer or to go to trial. Respondents
from the corrections system indicated that the most significant factor affecting
the number of prisoners on remand at BCC is the lack of criminal defence lawyers
in Nunavut.
THE IMPACT OF UNMET NEEDS
Respondents made very clear the devastating effects of unmet need for legal
services on all parties involved: the accused, the victim, the community, and
NLSB staff. This was one topic where the follow-on effects of unmet need in
one area of the legal system clearly had an impact on other areas, including
the NLSB.
The accused
The NLSB's inability to meet the needs of the accused has a significant impact
on that individual's well-being. For example:
- Discontinuity in defence counsel affects the quality of service received
and the extent of delays in processing the case.
- Unmet need in JP courts may result in the accused pleading guilty to offences
they did not commit, or receiving unduly onerous or inappropriate sentences.
- Unmet need prior to first appearance may result in individuals being remanded
to BCC in Iqaluit, where they face a further wait to speak to a defence lawyer.
All of these issues - combined with the lack of local support systems (such
as addictions counselling), the socio-economic situation, and the effects of
previous emotional traumas - were considered by respondents to put the accused
at risk of depression and suicide, specific incidences of which they were able
to provide as examples.
The victim
Victims are also negatively affected by delays in the justice system. Delays
increase the potential for re-victimization, particularly in cases of assault,
and leave the victim to face the accused on an ongoing basis for several months
until the court returns to their isolated community.
In family law matters and other civil cases, the overall lack of civil law
practitioners in Nunavut may result in a situation where one party obtains representation
through the NLSB and the other cannot. Furthermore, delays in addressing family
law and civil matters may result in one party becoming the victim of a criminal
act by the other party as frustration over underlying issues increases.
The effect of unmet need on the victim is often compounded by the lack of Victim
Services workers in many communities.
The community
Community members are affected by unmet need for legal services in several
ways:
- Through frustration and cultural disconnects that occur due to delays and
adjournments in circuit courts.
- Emotionally, through their ties to the accused and/or the victim.
- Through the increasing demands placed on community-level structures to interact
with and take over responsibilities from the legal system.
The NLSB staff
NLSB staff are acutely aware of the extent of unmet need, and experience a
great deal of stress, anxiety, and frustration as a result. These pressures
lead to frequent burn-out and a high rate of turnover, which in turn has a negative
impact on the remaining staff.
The legal system as a whole
The issue of unmet need is one where the impacts on one area of the legal system
can quickly and easily spill over into other areas. For example:
- The unwillingness of NLSB counsel to represent the accused over the telephone
in JP courts, combined with limited Courtworker services in each community,
hampers the ability of JP courts to hear those cases, and sometimes causes
the case to be moved up to the NCJ, adding to the workload of that court.
- When the accused is poorly represented in circuit court, the result may
be an inappropriate sentence. It falls to probation officers in the community
to conduct follow-up visits for house arrests and conditional sentences. If
the accused is required to report back to court, the probation officer must
then appear in court with the offender to report on his or her behavior.
- There may also be a relationship between unmet need for family law representation
and the demand for criminal representation. Respondents who support this theory
argued that individuals become frustrated because they are either unaware
that family law remedies exist for their situation or are unable to access
those remedies. Eventually, their frustration becomes so great that they engage
in a criminal act, such as assault.
COURTWORKERS
Courtworkers' responsibilities include assisting the client and the client's
family to interact meaningfully with the justice system and, where necessary,
NLSB counsel. They work closely with counsel to ensure that clients understand
their rights and the situation. Courtworkers also provide a valuable interface
between the community and the justice system, and often counsel community members
and provide PLEI services. In some cases, Courtworkers may also be involved
in alternative justice programs. Courtworkers' responsibilities vary widely
from community to community, and are somewhat related to the extent of their
training and whether there is a JP court in their community.
Courtworkers experience a great deal of pressure to expand their role and services,
as well as pressures due to their relationship with the RCMP and Crown counsel
during proceedings. Community members can be another source of pressure for
Courtworkers, who must often explain the court's decisions and actions once
it has left the community.
Courtworkers also face a number of barriers when delivering their services.
These barriers include a lack of infrastructure and resources (such as offices,
telephones, and fax machines), an unfair and inadequate compensation system
(Courtworkers are paid through the regional clinics, so there are discrepancies
between the regions in terms of pay scale), and a lack of recognition for their
work.
Nonetheless, Courtworkers have the potential to meet a number of unmet needs
in the justice system in Nunavut, including areas such as family law, youth
justice, PLEI, community and alternative justice, and JP courts. In order to
fulfill this potential, Courtworkers will require improved training (which is
currently being developed by the NLSB and will be tied to the three-tier JP
training program), improved compensation (to encourage recruitment and retention),
greater support from other members of the justice system, and improved infrastructure.
In addition, more Courtworkers (and more in full-time positions) will be required
to meet the additional demand.
PUBLIC LEGAL EDUCATION AND INFORMATION
Public legal education and information (PLEI) serves a number of important
purposes, including promoting the informed use of legal institutions, encouraging
the informed management of the individual's legal affairs, supporting educated
citizenship, and avoiding confrontation with the law. There are a small number
of PLEI activities currently underway in Nunavut, but the majority of respondents
believed that unmet need for PLEI exists in the areas of civil law, family law
matters, criminal law, rights-based law, administrative tasks, and the functioning
of the NLSB.
Respondents indicated that PLEI delivery could be improved through better co-ordination,
a broader definition of PLEI users (to include more than just the victim and
the accused), different methods of PLEI delivery, improved training for PLEI
providers, and increased funding for PLEI provision.
However, it should also be noted that some respondents raised concerns about
increasing PLEI activities, as they felt that this might result in an enormous
increase in demand that the NLSB would be unable to meet.
PROPOSED SOLUTIONS
In order to address the high level of unmet need for legal services in Nunavut
and the effects of the factors described in the preceding sections, the research
team has identified proposed solutions. These solutions relate to the need to
ensure adequate funding for a wide range of improvements to the NLSB's human
resource capacity, in order to address unmet need for services. They also relate
to the need for the broader Nunavut justice system to focus on addressing those
issues that have a significant impact on the functioning of the NLSB as a result
of the high degree of inter-dependence of the various parts of the Nunavut justice
system.
The proposed solutions for stakeholders of the NLSB are as follows:
- Existing family law and criminal law positions should be built into the
core funding formula for the NLSB and an ongoing mechanism should be established
to review the adequacy of staff lawyer positions based on caseloads, legal
aid applications, and the available private legal aid panel.
- Adequate funds should be provided to give NLSB lawyers rough parity of
benefits with Crown counsel.
- Adequate funds should be provided for adequate office space for regional
legal services clinics.
- A funding base should be established to permit broader coverage of legal
aid services in the family law and non-family civil law areas, and a mechanism
should be developed to allow recovery from clients who can afford to contribute
to legal services (to be credited to the Legal Aid Plan).
- Funds should be provided to continue an intensive and ongoing training
program for Courtworkers.
- Funds should be provided to ensure that Courtworkers and office support
staff in the Legal Aid Plan have salaries and benefits comparable to other
community public servants in Nunavut.
- Funds should be provided to maintain the independent database and communication
system now being implemented by the NLSB.
- There must be adequate funds for PLEI, including for adequate human resources.
The proposed solutions for the broader Nunavut justice system are as follows:
- The NCJ should consider whether there are ways by which court circuits
and flights could be scheduled so as to utilize more Mondays and Fridays for
court sittings.
- The NCJ should continue to review, in consultation with the Crown and the
NLSB, whether court circuits could be scheduled differently, so as to maximize
court time available in communities.
- Funds should be provided to encourage appropriate government offices, the
NLSB, Aboriginal organizations and private firms to establish articling positions
ultimately aimed at increasing the number of resident members of the Nunavut
Law Society.
- A program should be established to hire and train local process servers.
- The Crown office in Nunavut should be encouraged to develop the capacity
to assist RCMP or lay prosecutors to review charges before they are laid at
the community level.
- The RCMP should be provided with resources to identify and train lay prosecutors
to replace RCMP court officers in the communities.
- Resources should be provided to permit the Crown office to decentralize
prosecutor positions to regions.
- Alternative justice measures should be encouraged and fostered.
- In developing and implementing all aspects of alternative justice measures,
great care must be taken to ensure that the human rights of women and victims
are safeguarded and respected against societal pressures, which are sometimes
oppressive.
- The Nunavut Law Society should consider how best to deal with ethical issues
raised by potential conflicts arising because there is a small pool of lawyers.
Previous Page | Table of Contents
| Next Page
|
