Nunavut Legal Services Study

1. INTRODUCTION

• 1.1 PURPOSE
• 1.2 METHODOLOGY
• 1.3 EFFECT OF INTERACTIONS IN THE NUNAVUT LEGAL SYSTEM
• 1.4 FORMAT OF THE FINAL REPORT

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1. INTRODUCTION

1.1 PURPOSE

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 service providers (such as the Nunavut Legal Services Board, counsel, Courtworkers, and public legal education and information [PLEI] providers); the cost drivers associated with legal service provision; the areas where unmet need for legal services exists; and, finally, the ways in which these challenges and unmet needs could be addressed

The request for proposal issued by Justice Canada contained a list of 10 issues to be examined by the research team. These issues and the questions associated with them were arrived at jointly by representatives from Justice Canada, the Nunavut Department of Justice, and the Nunavut Legal Services Board (NLSB). The 10 issues were:

• 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 courts
• 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

1.2 METHODOLOGY

The Nunavut Legal Services Study was carried out by a team of researchers from IER and by Dennis Patterson. The study made use of a variety of methodologies, both quantitative and qualitative, in order to examine the issues raised by Justice Canada. The methodologies used were:

• Interviews
• Document review
• File-based research
• Workshops
• Client interviews

The details of these methodologies and a discussion of any challenges faced by the research team in their application are provided in the following sub-sections.

Maintaining confidentiality

Maintaining the confidentiality of individual NLSB clients has been a key concern throughout the project. Every effort has been made by the research team to respect confidentiality. In particular:

• A Confidentiality Undertaking was signed by each member of the research team and provided to research sites and participants as requested.
• No files or other sources of data were removed at any time from the offices of the Legal Services Board in Yellowknife or the Legal Services Board office in Gjoa Haven.
• Comments made by individuals during the interview process and workshops are not attributed in this document or any other documents produced by the research team.
• The client interviews were carried out by staff of the Maliiganik Tukisiiniakvik Clinic (Baffin Region), preserving the integrity of existing client/staff relationships and ensuring that there was no direct contact between the research team and NLSB clients.

1.2.1 Interviews

Over 40 interviews were conducted, both in person and over the telephone (some key individuals were interviewed several times). Interviewees represented a broad range of stakeholders in legal service provision, including:

• The Executive Directors of the Nunavut and NWT Legal Services Boards
• The Directors of all legal aid clinics in Nunavut
• NLSB staff counsel
• Members of the Legal Aid Service Board
• The RCMP
• The Justice of the Peace Courts Administrator
• Nunavut Court of Justice Senior Judge
• Justices of the Peace
• Courtworkers
• Members of the private bar
• Representatives of social justice organizations

The questions used during the interview process were based on the questions posed in the original Request for Proposal for the project (these questions are provided in Appendix A). The interview questions and the selection of interviewees were vetted and agreed to by Justice Canada and by the NLSB. A complete list of interviewees is provided in Appendix B.

The interviews were transcribed and then, for key interviews, returned to the interviewees for amendments and revisions in order to ensure that they accurately reflected the respondents' opinions and views.

It should be noted that the original research protocol included interviews with representatives of the Nunavut Social Development Committee (NSDC). However, this organization was disbanded in February 2002, just as the research team was beginning to schedule interviews, and Nunavut Tunngavik Incorporated (NTI) assumed its responsibilities. Representatives of NTI were invited to participate in the workshop in Iqaluit (see Section 1.2.4) in order to ensure that their opinions were solicited and included in this report.

1.2.2 Document review

A number of documents were also reviewed by the research team. Documents were suggested and provided by a number of different sources, including Justice Canada and the NLSB. The following documents were reviewed by the research team:

• Final Report of the Aboriginal Women's Justice Consultation, September 26-29, 2001, Ottawa
• Steps Into the Future: Inuit Court Worker Training and Certification Workshop Report, March 20-22, 2001, Iqaluit (by Lois Moorcroft)
• Does Your Husband or Boyfriend Beat You? Nunavut Edition 2001, produced by Pauktuutit
• Consultation on Violence Against Women: A Report on the Recommendations made to the Minister of Justice Canada, June, 1996
• Inuit Women and the Administration of Justice: Phase II Final Report, submitted by Pauktuutit Inuit Women's Association to the Department of Justice Canada
• Towards Justice That Brings Peace, Nunavut Social Development Council Justice Retreat and Conference, Rankin Inlet, Nunavut, September, 1998
• Presentation to the Special Joint Committee on Child Custody and Access, June 10, 1998, Ottawa, Pauktuutit Inuit Women's Association
• Nunavut Community Profiles (draft), Research and Statistics Division, Department of Justice Canada, August 1999.
• Family Law Report for the Nunavut Department of Justice, 2000, by Kelly Gallagher MacKay
• Environmental Scan, July 2001, RCMP.
• Executive Director's Report, February 2001, to the NLSB.
• Legal Aid Bulletin 96-1, June 5, 1996, produced by the NWT Legal Services Board.
• Nunavut Court of Justice Annual Report, 2001.
• Consolidation of Legal Services Act (Nunavut)
• Nunavut Legal Service Board Main Estimates, 1999/2000 through 2002/2003.
• Justice Canada in Nunavut Budget, 1998/1999 through 2001/2002
• Nunavut Economic Outlook: An Examination of the Nunavut Economy, Conference Board of Canada, 2002
• Inuusirmut Aqqusiuqtiit/ Pathfinder Pilot Program Overview, April, 2002, Eldridge & Associates, Ottawa

1.2.3 File-based research

A file-based research process was designed in order to answer those questions in the request for proposal that were of a more quantitative nature. As with the interview questions, the questions assigned to the file-based research process were vetted and agreed to by Justice Canada and the NLSB.

The following files were reviewed during course of the study:

• Legal aid applications and client files in Yellowknife (for information from before July 2000) and legal aid applications only in Gjoa Haven (for information from after July 2000)
• Final dockets for circuit courts in Nunavut
• Concluded dockets for circuit courts in Nunavut

Client Files

The initial file-based research process assumed that the research team would have access to the files of clients of the NLSB (and of the NWT Legal Services Board for material prior to July 2000). However, during discussions with Clinic Directors about accessing these files, it became apparent that there were significant concerns on the part of some Directors relating to the confidentiality of client files and the appropriateness of making them available to the research team. In order to address these concerns, and forward the research in a timely manner, alternative sources of data were considered. Upon further examination, the legal aid applications completed by clients were perceived to contain the bulk of the information required. The legal aid applications had the added benefit of being available in two offices (Yellowknife, for those files opened prior to July 2000, and Gjoa Haven for files opened after July 2000), thus facilitating the research process.

The perception of the research team that adequate information could be obtained from the legal aid applications themselves was validated by the team's experience at the NWT Legal Services Board in Yellowknife. In Yellowknife, the team had access to the applications and to the related client files and found that the applications contained all of the relevant data, while the remainder of the client files consisted primarily of transcripts and memos from counsel relating to administrative aspects of the case. Therefore, the team felt confident in basing their research on the legal aid applications rather than on the client files, as originally intended.

Legal aid applications

Several challenges became apparent during the review of legal aid application files. Some of these relate to the transfer of the files from Yellowknife to Gjoa Haven that occurred in the summer of 2000, once the NLSB had been established and was ready to receive them:

• Potential for overlap - There was a potential that files that were open during the transfer period would be counted and reviewed both in Yellowknife and in Gjoa Haven, as they would appear in both systems. In order to avoid overlap as much as possible, only files opened after July 1, 2000 were counted in Gjoa Haven, as the transfer took place in June 2000.
• Closing of files - The majority of files reviewed in Yellowknife did not contain case closing sheets (in many cases, this was due to the file being open during the transfer period). In Gjoa Haven, the vast majority of files were still open, and therefore they, too, did not contain case closing sheets. For this reason, the information that the case closing sheets would contain - for example, information on the disposition of the case, any changes in counsel that took place, and any adjournments - could not be retrieved from the files as originally expected.

Another challenge faced by the researchers was the volume of files to be reviewed and the lack of an adequate database system to produce the necessary statistical information. In Nunavut there is no equivalent to the Legal Aid Information System (LAIS) used by the Legal Services Board in Yellowknife. The original intent of the researchers was to review all of the legal aid application files in Yellowknife and use a sampling protocol to determine the number of files to be reviewed in Gjoa Haven. However, on arrival in Gjoa Haven, it became apparent that a manual ledger system is in place to manage the filing system. This ledger system tabulates all files opened by type of legal aid requested (criminal, family law, civil, or youth) and indicates whether or not legal aid was denied. Cross-referencing is possible, based on the applicant's name, to a series of summary sheets that indicate why legal aid was denied and what charges were involved. Through use of the ledgers, it was possible to review all of the files in Gjoa Haven, rather than a portion, improving the validity of the data.

Finally, in some cases, the information presented in the legal aid application files was not complete or was unclear. In other cases, assumptions had to be made in order to draw conclusions from the data available. All such concerns and assumptions are noted in the discussion of findings, as and when necessary.

Circuit court dockets

The research team reviewed the final dockets and concluded dockets for Nunavut circuit courts, copies of which are held at the NLSB office in Gjoa Haven. These dockets address only the criminal charges before the court, and therefore did not provide information relating to the provision of services in the areas of civil and family law. The circuit court dockets were only available from September 2000 onwards, as it was at that time that Bonnie Tulloch became Executive Director of the NLSB and began the practice of keeping copies of the dockets in Gjoa Haven. Two concerns exist with respect to the data gathered from the final and concluded court dockets:

• The collection of dockets may be incomplete. Fewer dockets are available for some communities than for others. This may be a reflection of fewer court sittings in those communities. However, it is also possible that, in some cases, dockets were not provided to the NLSB in Gjoa Haven, even after September 2000. If that is the case, the data gathered from those dockets is incomplete.
• Consistency in docket descriptions. A coding system is used in the final and concluded dockets to indicate the reason for an individual's appearance on a particular charge. For example, the charge may be coded as a first appearance, a preliminary hearing, or a sentencing hearing. However, the coding system does not appear to be uniform across the collection of dockets, perhaps as a result of dockets being prepared by different people. Therefore, there is a small possibility that some charges may have been mis-coded or that codes may have been misinterpreted during the data retrieval process. This would affect the validity of data presented on "normal" and "unusual" reasons for adjournment, and on work done by the NLSB under presumed eligibility as opposed to work done as a result of an application for legal aid.

Justice of the Peace (JP) Court dockets

The research team had initially hoped to conduct a review of the Justice of the Peace (JP) court dockets similar to the review of circuit court dockets described above. However, the team was unsuccessful in obtaining copies of the JP court dockets, even after several attempts. An analysis of the JP court dockets would have been particularly useful in validating the information provided by respondents with respect whether the cases being heard in JP courts are increasing in seriousness. It would also have been useful in identifying the training required to prepare Courtworkers, who are active in JP courts, to play an expanded role.

1.2.4 Workshops

The research team conducted two workshops after the Preliminary Findings Report was completed and presented to Justice Canada. The workshops were held in Iqaluit on June 20, 2002, and in Cambridge Bay on July 3, 2002.

The purpose of the workshops was:

1. To explain the Nunavut Legal Services Study
2. To seek general input on the provision of legal services in Nunavut
3. To validate preliminary findings (contained in the Summary of Preliminary Findings)

Ten or more people attended each workshop, representing a wide variety of interests and points of involvement with the Nunavut justice system and with legal service provision. Participants included lawyers for the NLSB and the Crown, Courtworkers, justice committee members, elders, counsellors, probation officers, RCMP officers, social workers, representatives from NTI, and representatives of the Nunavut Department of Justice. Well over half of the attendees at each workshop were women. Young people also attended each of the workshops, and raised particularly concerns with respect to youth and the justice system. Attendance lists for both workshops are provided in Appendix C.

The workshop proceedings and results were recorded through the use of flip charts and note-takers. Participants were able to provide input on all of the topics being researched, and their comments are incorporated throughout this document.

1.2.5 Client interviews

The research team, Justice Canada, and representatives from the NLSB and the Nunavut Department of Justice discussed several ways in which to gather input from actual clients of the NLSB with respect to the user perspective on legal service provision. The primary considerations in evaluating the various methods (face-to-face interviews, workshops, etc.) were the need to maintain the privacy of the individual, the confidentiality of the information obtained, and the existing relationship between the client and the clinic's personnel. The method chosen was a series of client interviews, which were conducted by the staff of the Maliiganik Tukisiiniakvik, under the direction of Debra Ram, Clinic Director.

Fourteen clients were interviewed by the clinic staff, using a series of simple, open-ended questions developed by the research team, focusing on the user experience. These questions are provided in Appendix D. Of the clients interviewed, eight were from Igloolik and the remaining six from Iqaluit. Three of the people interviewed were female. The clients had been involved with the Maliiganik Tukisiiniakvik for a number of different reasons:

• Seven for criminal law cases
• Two for family law issues
• One each for Youth Court and Justice of the Peace Court
• Two for support in changing a name
• One who was in custody in Iqaluit for a show cause hearing, but who is not from Iqaluit

The transcripts of the client interviews were provided to the research team and the results have been incorporated throughout this document, under the appropriate subject headings.

1.3 EFFECT OF INTERACTIONS IN THE NUNAVUT LEGAL SYSTEM

The Nunavut legal system is a complicated entity, made up of many different parts, all of which have their own purpose and objectives. These components include, but are not limited to the NCJ, the JP courts, the RCMP, Courtworkers, NLSB counsel, Crown counsel, private practitioners, corrections officers, community justice participants, the RCMP, and Victim Witness Assistants.

All of these components interact with one another and have an influence on each other in a way that makes it very difficult to discuss any one part of the system in isolation. However, the mandate of the Nunavut Legal Services Study is to focus on legal service provision exclusively. Maintaining this focus has proved to be an ongoing challenge to the research team, because of the high degree of interaction between the various parts of the legal system in Nunavut.

Therefore, although every attempt has been made to focus on legal aid provision, Courtworker management, and PLEI, there are sections of this report that deal with the Nunavut legal system as a whole, or with parts of the system other than the NLSB. In these cases, the team has tried to make the link back to the NLSB as explicit as possible.

1.4 FORMAT OF THE FINAL REPORT

The final report on the Nunavut Legal Services Study has been organized in a different way from the Preliminary Findings Report. Rather than discuss each of the 10 issues separately, the issues and their component questions have been grouped together into broader sections. This format was chosen in order to avoid repetition, to present the findings in the clearest way possible, and to make explicit the connections between the different issues.

The final report is organized into the following sections:

• Section 2.0 - Background information: Nunavut and the NLSB - provides demographic information on the social and economic realities of Nunavut, which have an impact on the need for and delivery of legal services. It also includes a short history of legal services provision in Nunavut and a discussion of the NLSB's mandate and current level of resources.
• Section 3.0 - Service delivery: Demand, pattern, and quality - addresses the impact of various factors, including court structure, culture, and geography, on the provision of legal services in Nunavut.
• Section 4.0 - Cost of service provision - discusses the cost drivers affecting the provision of legal services in Nunavut and attempts to quantify, where possible, the effect of those drivers.
• Section 5.0 - Unmet need for legal services - contains a detailed description of the areas where unmet need for legal services exists in Nunavut, as well as a look at the effect of unmet need on the individuals and communities involved.
• Section 6.0 - Impact of unmet needs - identifies a range of impacts of unmet needs on victims, on communities and on the justice system
• Section 7.0 - Courtworkers - examines the current role of Courtworkers in legal service provision and identifies ways in which their role could be expanded to meet some of the needs identified in Section 5.0. The resources Courtworkers will require if they are to take on this expanded role are also discussed.
• Section 8.0 - Public legal education and information (PLEI) - discusses the PLEI activities currently being carried out in Nunavut, as well as the unmet need for PLEI. Suggestions are provided for ways in which PLEI provision could be improved.
• Section 9.0 - Proposed Solutions - presents the solutions proposed by respondents to the issues under discussion.
• Section 10.0 - Conclusion - summarizes and reviews the key findings of the Nunavut Legal Services Study.

At the end of each section, with the exceptions of Sections 9.0 and 10.0, a table has been provided, summarizing the key points associated with that section.

The report also contains a number of Appendices, as follows:

• Appendix A - Questions from the Terms of Reference
  
• Appendix B - List of Interviewees
  
• Appendix C - Workshop Attendance Lists
  
• Appendix D - Client Survey Questions

The majority of the information provided in this report is the result of activities carried out by the research team. All information from other sources has been cited, either in the body of the document or in the footnotes.

Quotes from the interviewees and workshop participants are interspersed (anonymously) throughout the document. They are highlighted alongside the appropriate sections of this report.

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