Nunavut Legal Services Study
This section discusses the factors affecting the cost of legal service provision in Nunavut. Some of these drivers are unique to Nunavut, while others are common to all northern jurisdictions (Nunavut, the NWT, and the Yukon). A separate sub-section details the influence of the federal government on the cost of service provision through legislation, policies, and decisions with respect to resource allocation. Finally, the effect of the Government of Nunavut on the cost of legal service provision is also addressed.
While this section identifies many factors as increasing the cost of legal service provision, it is important to note that the majority of respondents, both interviewees and workshop participants, felt that the current model for service delivery is under-resourced and, particularly, too few NLSB staff lawyers, Courtworkers, and private practitioners. These respondents felt that, if more resources were available, the current method of service delivery would function effectively.
There are several drivers that have a significant effect on the cost of legal service provision in Nunavut. Some of these drivers may be common to all Northern jurisdictions, and also to the more remote areas of southern jurisdictions. However, respondents identified these drivers as being key matters in the question of adequately resourcing the Nunavut legal system in order to meet local needs.
The cost drivers identified are geographic, socio-economic, political, or relate to difficulties in obtaining resources.
The geography of Nunavut plays a key role in driving the cost of legal service provision. Communities are far-flung and often only one option for transportation to and from those communities is available. The cost of travel has a serious effect on the cost of service provision, as NLSB counsel must travel to perform their duties in circuit court. Non-court related travel, for example from the NLSB head office in Gjoa Haven to Iqaluit, the capital of Nunavut, is also prohibitively expensive. Table 4.1 provides some examples of the historical cost of travel in Nunavut.
|Gjoa Haven - Rankin Inlet||July 2001||$1900|
|Gjoa Haven - Iqaluit||August 2001||$5056|
|Gjoa Haven - Iqaluit||October 2001||$2619||Seat sale price|
|Gjoa Haven - Edmonton||October 2001||$1878|
The population of Nunavut has a number of characteristics14 that serve to drive demand for legal services and, therefore, the cost of providing these services in the territory. For example, a younger population, a high rate of crime, and a high percentage of the population suffering from Fetal Alcohol Syndrome all contribute to demand for the NLSB's services.
The demographics of Nunavut also have an effect on the amount of time and effort needed to serve individual clients. For example, the majority of people in Nunavut do not speak English as their first language, so there may be communications difficulties and translation services may be required. As well, many people in Nunavut do not have a high level of formal education, so NLSB staff must devote time and energy to building trust with their clients, explaining the legal system, reviewing written information, and ensuring that their clients truly understand what is occurring in court. Cross-cultural training is also required for all NLSB staff recruited from southern Canada.
Some respondents pointed out that Nunavut's economy and workforce are also unique in Canada. Unlike most other jurisdictions, Nunavut still has a largely public sector economy. Therefore, the government is the largest employer and biggest economic force in Nunavut. Consequently, if a citizen of Nunavut wishes to challenge an institution of the Government of Nunavut where human or civil rights are at issue, it is essential that there be a source of independent legal advice, especially considering the high proportion of persons resident in Nunavut who could not possibly afford private legal services. Respondents observed that it is critical that the independence of the NLSB, which is established as an independent entity by statute, be reflected in all aspects of its operation. In order to maintain this independence, it is necessary that the NLSB's systems, including those for communication and information, not be linked to those of the territorial government. Establishing and maintaining this independence from the territorial government represents an additional cost burden on the NLSB.
Some respondents also highlighted the effect of lack of basic infrastructure, such as places to hold meetings, on the legal system in Nunavut. As a result, even small programs designed to address local issues require a greater amount of up-front investment if they are to get off the ground. For example, a pilot mediation project was established in Kugluktuk (in the Kitikmeot Region) in the spring of 2002. Until the fall of 2002, the project had not been able to find a permanent space where participants in the program could meet with program staff. The pilot project is to be completed in March 2003. However, this lack of local infrastructure has had a significant effect on the successful completion of the pilot project.
"If you are going to have decentralized administration and a big spider web, you've also got to have an IT system that is going to be effective, or it won't work. The costs if you don't implement that are going to go out of sight. That will cause costs to skyrocket without much corresponding progress to show for it until it's dealt with. …"
Nunavut is also unique because its creation was linked to the settlement of the Inuit land claim. The planning and implementation process that emerged from the agreement of settle the land claim and create Nunavut established policies that made the territory unlike any other jurisdiction in Canada. Early on, all three parties involved (territorial, federal, and Inuit) made a first commitment to decentralized government. This decision has had a direct impact on the cost of providing legal services in Nunavut, as the headquarters of the NLSB has been established in Gjoa Haven, a remote community in the Kitikmeot Region, distant from Iqaluit. The decision to implement decentralization by locating the NLSB office in Gjoa Haven has resulted in a number of additional costs for the NLSB, including additional travel costs and increased infrastructure costs (for example, for the establishment of a computer network). Gjoa Haven also presents a challenge for the NLSB in terms of local access to professional expertise, such as accountants or other lawyers, and the ability to recruit and retain specialized staff.
"Canada and Nunavut endorsed a decentralized model for government service delivery. Regional boards and decentralized clinics reflect political agreement at the highest levels. This is very effective [but] travel is hugely expensive."
The Inuit land claim agreement further requires that Inuit be involved in the delivery of programs and services in Nunavut (article 32). Respondents cited the three regional clinic boards, composed largely of Inuit, as examples of the necessary involvement of Inuit in the delivery of legal services, and as an important way to make the southern professionals who are presently Directors of regional legal services clinics accountable and responsive to Inuit in their regions. However, there are also administrative, travel, and per diem costs associated with the establishment and maintenance of these boards, which must be borne by the NLSB.
The difficulty in obtaining and retaining human resources in Nunavut places an additional cost burden on the NLSB. In some ways, this concern is tied to other cost drivers, in particular to Nunavut's geographic situation, which makes it more difficult to attract and retain staff from southern Canada. However, the scarcity of human resources at the NLSB also:
- Makes recruiting more difficult, as the NLSB is not able to offer the same flexibility and benefits as other employers in the legal field, both in Nunavut and in the North. For example, the federal government is able to provide more flexibility in terms of vacations and sabbaticals to its employees because it is not stretched as thin as the NLSB. Crown counsel, for example, obtain the following benefits, in contrast to their NLSB staff lawyer counterparts: two Vacation Travel Assistance trips annually (includes family members), medical and dental benefits, a generous Isolated Post Allowance, and rents of $600 per month for furnished housing. By contrast, one clinic lawyer in Iqaluit had been forced to live for five months in a local hotel, due to lack of available housing. This, in turn, makes the Crown a more attractive employer, ensuring that it never faces the scarcity of human resources that affects the NLSB.
- Makes retention of employees more difficult, as they are carrying a heavy workload in difficult conditions (particularly those counsel who travel frequently on circuit court to remote communities). The NLSB is not funded sufficiently to be able to offer perks such as subsidized housing, which would make employees' lives easier, and therefore increase retention.
"Housing is the single greatest factor in settling people up here. It's so hard to get inexpensive housing that is reasonable … Legal aid lawyers are fairly far down the line for priority … There is such an enormous cost of living. Certainly if you want to keep people up here, there's got to be a pension … With no long-term plan for [the NLSB], compared to Crown everywhere, there is not that incentive to keep someone here for 10 or 20 years."
The cost of recruitment can be significant. One respondent indicated that the most recent recruitment cost they had incurred for one position was $30,000. This amount covered advertising and flying candidates in for interviews. However, at the end of this costly process, none of the candidates decided to accept the position and it remained unfilled.
The question of human resources is a good example of the way in which the links between the different parts of the legal system in Nunavut are such that limited resources in one area can affect the entire system, and the NLSB in particular.
There are not enough defence counsel and Crown counsel to handle the workload at the NCJ level. The private bar, which has so far been located only in Iqaluit, has eroded markedly since the establishment of Nunavut and the NCJ. In some cases, private lawyers have taken up attractive opportunities within government or with Aboriginal organizations. In other cases, the high costs of office overhead and the intense pressures of circuit court work and travel have resulted in five lawyers leaving Nunavut or not being available for legal aid work.
In criminal law cases, the NLSB can and does request the support of additional counsel from the NWT. However, in family and other civil law cases, the NWT is also suffering a shortage of practitioners, and therefore no one is available to supplement the NLSB's staff counsel in this area.
The resulting severe shortage of private lawyers available for the Nunavut legal aid panel has put additional pressures on the NCJ and NLSB staff lawyers. Since cases cannot proceed without defence lawyers, even with the presence of judges and Crown attorneys, these reductions in the numbers of available private lawyers has put significant additional pressures on the new court and the Nunavut Legal Aid Plan. Also, private lawyers who remain in Nunavut are specializing in criminal law, leaving a very large gap in the family and civil law private bar.
In addition to affecting the NLSB's ability to provide legal aid services, limited human resources also affect's the Board's ability to access financial resources in order to carry out other programs. For example, funding has been made available through Justice Canada to support PLEI activities and training for NLSB staff around the Youth Criminal Justice Act. However, the NLSB has only recently been able to assign human resources to developing an application to access some of this funding.
Conflicts also create problems in a jurisdiction with a small private bar and no private lawyers located outside Iqaluit. In family cases, only one party to any dispute can be represented because there is only one clinic in each region. Whoever arrives at the clinic first receives representation and, in cases where there are both criminal and civil issues at stake, conflicts will arise, which may lead to ethical problems or allow the criminal issues to take precedence over the civil. This problem of conflicts has been one reason why two legal aid counsel must be sent on busier court circuits.
Crown counsel complain that, in some cases, trials have had to be cancelled at the last minute because of overworked and unprepared private legal aid lawyers, or circuit lawyers who were asked to take over cases on very short notice. This can result in delays or adjournments - and money wasted on travel for witnesses, including expert witnesses. These factors add to the overall costs to the justice system.
Also, many defence counsel respondents believed that, since the Crown's office in Nunavut lacks adequate resources to review charges laid by community RCMP detachments, there are many cases where too many charges, or inappropriate charges, are laid by local RCMP. Although these situations are usually sorted out by the time the matters are dealt with in court, this situation does cost extra time and adds to pressures during busy court weeks.
 These characteristics are discussed further in Section 2.1.
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