The New-Brunswick Aboriginal Duty Counsel Project
This project was clearly successful in reducing the number of clients requiring adjournments to move them through the first appearance or pleading stage. This most likely was the result of improved communication between the Aboriginal duty counsel lawyer and the Aboriginal clients. However, this is an inference surmised from the reduction of adjournments, rather than from direct evidence.
The amount of time that the Aboriginal duty counsel lawyer spent with clients was not recorded. Therefore, it is not possible to measure with precision whether the reduction in the number of clients requiring adjournments representsa cost saving. The reduction in the number of adjournments would, on the surface, suggest a cost saving in both legal aid and court expenditures.
However, the reduction in the number of adjournments appears to have led to an increased number of pleas of not guilty. This could possibly lead to greater down stream costs. There was a small number of legal aid certificates issued to clients of the Aboriginal duty counsel project. It is not known if this represents an increase over the previous years, and therefore, if this represents a potential cost increase. Similarly, it is not known how many of the people pleading guilty would eventually appear un-represented in court and increase court time and costs that might be required to deal with un-represented accused. This would impact on judge’s time, Crown prosecutor's time, and other costs related to potentially longer proceedings.
Un-represented accused also raises the possibility that the judge will order representation to be provided. There may be costs related to court-appointed counsel. A thorough evaluation of this project should address these issues.
The reduced number of adjournments resulted mainly in an increased number of clients entering pleas of not guilty, rather than guilty pleas. This is a clear indication that the project duty counsel lawyer was acting in the interest of her clients. This is not a trial court and we do not know whether the increased number of clients who entered not guilty pleas at first appearance eventually entered guilty pleas at provincial trial court, and whether they were subsequently convicted or acquitted. The larger number of not guilty pleas indicates that interests of justice in the conventional sense were served at first appearance court.
A large percentage of the Aboriginal people who were served by the duty counsel project reported that they either spoke English poorly or not at all. The data from the project do not show a greater tendency on the part of people with limited English language skills to plead guilty at first appearance. This may have been because of the presence of the Aboriginal lawyer who spoke the Mi’ Kmaq language. Unfortunately, data on linguistic ability are not available for the comparison groups from the regular duty counsel service.
A large percentage of the Aboriginal duty counsel clients were women, about twice as many as among non-Aboriginal people. There was some evidence to support the claim that women committed a greater number of less serious crimes, and have fewer prior convictions. It would therefore be less likely to receive criminal legal aid service. This is not a critique of conventional criminal legal aid. However, it will be revisited below in another part of the discussion.
A change already proposed for the second year of the Aboriginal duty counsel project is that the project lawyer will accept legal aid certificates for Aboriginal clients. It was determined that the 305 duty counsel contacts from the project represented 146 individuals. Forty-six of these people, 31.5 %, applied for legal aid. Of the 46 applicants, about 60 % received certificates. The extension of the project to accept certificates will allow those receiving legal aid certificates to receive the services of an Aboriginal lawyer.
However, there remain a number of people who are not receiving service. Combining those who did not apply with those who were refused or withdrew their applications, as many as 87 people did not receive legal aid service. Sixty-nine of these people entered not guilty pleas. Many of these people may not have met the basic coverage provision of risk of incarceration. The majority of those who entered guilty pleas were charged with relatively minor offences such as assault, mischief, and motor vehicle offences. Other service delivery responses might be useful. One idea might be to expand the normal range of work of the duty counsel lawyer to provide limited assistance to people who wish to plead not guilty but will not receive legal aid. These clients may have to represent themselves at provincial trial court. Advice from the lawyer could be combined with basic written material on the criminal justice process. It might be argued that representing one's self in a criminal proceeding is never a good option. However, research on assisted self-representation carried out in British Columbia indicated that clients who were refused criminal legal aid benefited from both printed material and advice from duty counsel lawyers in understanding their situation and in considering the options available to them. It was noted above than many Aboriginal clients do not speak or read English or French well. This would have to be taken into account in any limited assistance project of this sort.
Forty clients served by the Aboriginal Duty Counsel project entered guilty pleas. This represents 27 % of all persons served by duty counsel. This suggests that the duty counsel lawyer might take an approach similar to the expanded duty counsel concept. Expanded duty counsel is a "disposition model" of duty counsel in which the objective is to remove simple cases from the docket as early as possible in the criminal justice process, while seeking the best disposition for the client. One of the main elements of the expanded duty counsel approach is already present with the Aboriginal duty counsel. The duty counsel lawyer is assigned to the same court on a continuous basis. This continuity enables a prolonged period of contact with the client in order to allow the duty counsel lawyer sufficient time to become familiar with the facts of the case. This usually involves interviewing the client and considering any evidence presented by the police. A second element of the continuity is that the duty counsel lawyer has time to discuss the matter with the Crown Prosecutor, and to negotiate the best outcome for the client. Unless financial eligibility were considered, this would have the effect of extending legal aid service to those Aboriginal people who will appropriately plead guilty, providing for them some limited service that they would not otherwise receive.
The data showed that there is a very high level of offending among the Aboriginal population served by this project. The self-report data indicated that 40 % of the duty counsel clients indicated that this was their first offence. This suggests a way in which legal aid might be able to play a part in addressing the problem of over-representation of Aboriginal people in the justice system. This would be to avoid the first turn of the revolving door syndrome by trying to avoid the first conviction. Even if a first time offender would not normally meet the legal aid coverage provisions, this would be a worthwhile aspect of legal aid service. Legal aid duty counsel service is strategically positioned in the justice system to undertake this sort of intervention.
However, to make the leap from the traditional core of case advocacy in legal aid to providing holistic justice services, the legal aid organizations requires partners. Those partners are the diversion programs and the related community services to which clients could be referred. This is an issue that policy makers in other parts of the justice system should consider seriously. Legal aid policy and delivery system development must occur within the broader framework of justice policy.
Community-based services that deal with anger management, drug and alcohol abuse, and parenting skills, as well as other community service activities, were used quite frequently in dispositions. No data were gathered on the extent to which alcohol or other substance abuse was an element of the offences committed by this client population. Similarly, no data were gathered on the personal histories of offenders that might indicate the extent to which anger control issues were related to the offences committed. drug abuse, anger management issues, and domestic violence. These are the kinds of community services that would be important aspects of a broader, holistic justice approach if the project were to evolve toward more intensive and comprehensive duty counsel services.
During the first year, the Aboriginal Duty Counsel lawyer did not attend first appearance court on all court days. Aboriginal clients who received the regular duty counsel service during 1998-1999 experienced adjournments at a much higher rate than the clients served by the project, and at about the same rate as they did overall prior to the project. This suggests that the project should be extended so that the Aboriginal duty counsel lawyer could deal with all Aboriginal accused. This might require some assistance, such as a paralegal worker.
It seems as if the Aboriginal lawyer was the key to the success of this project. This is, at the same time, the "Achilles heel" of the project. The project is vulnerable to the Aboriginal lawyer leaving. The number of Aboriginal lawyers is small, and a suitable replacement might be very difficult to find. Some consideration should be given to finding a way to reduce the vulnerability of the project to idiosyncratic factors. An Aboriginal paralegal, working with a non-Aboriginal lawyer who is known and respected in the Aboriginal community, is a possibility.
In recent years, increasing attention has been paid to the importance of duty counsel services in the overall service delivery system. This duty counsel project can be seen within the broader trend of providing more intensive duty counsel services to address a number of service delivery issues. The project was designed to improve service delivery to Aboriginal people in one part of New Brunswick with a particularly high concentration of Aboriginal people.
This preliminary assessment indicates that the project appears to have addressed the problem first identified by Legal Aid New Brunswick. The presence of the Aboriginal duty counsel lawyer significantly reduced number of adjournments experienced by Aboriginal people. Although there is no direct evidence at this stage of the research, this appears to have resulted from better communication between the duty Aboriginal lawyer and the clients.
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