Legal Service Provision in Northern Canada
Summary of Research in the Northwest Territories, Nunavut, and the Yukon
Justice Canada commissioned three studies into legal service provision in Northern Canada, one each in the Northwest Territories (N.W.T.), Nunavut, and the Yukon, which were carried out between March and August 2002. The studies examined ten issues:
- The impact of court structure, geography, and culture on the demand for legal services, pattern of service delivery, and quality of services.
- The impact 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.
- The interplay between the criminal and civil sphere in the generation of legal needs.
- Public legal education and information (PLEI) needs.
- Factors driving legal representation costs.
- The impacts of key federal legislation, policies, and resource allocation decisions on cost per case and territorial allocations of legal aid resources.
This report summarizes the results of the three studies.
The studies were carried out using both quantitative and qualitative research methodologies, including interviews, focus groups or workshops, the review of documents, and the review of files or other sources of statistical information.
Several of the questions posed by Justice Canada required the research teams to assess the extent of unmet need for legal services in particular areas. Through the research process, it became apparent that there were two different definitions of unmet need among respondents. The first was unmet need resulting from lack of representation and the second was unmet need resulting from low-quality representation, referred to as under-representation in this report. It also became apparent that accurate means of measuring unmet need (either quantitative or qualitative) are not in place at this time. As a result, the extent of unmet need is likely under-reported.
There are contextual differences between the three territories that affect the provision of legal services.
- Legal services in the three jurisdictions are provided by different organizations. The mandates of these organizations are not identical. The greatest difference is between the mandate of the Yukon Legal Services Society (YLSS), which is limited to the provision of legal aid, and the mandates of the Legal Services Board (LSB) of the N.W.T. and the Nunavut Legal Services Board (NSLB), which encompass legal aid, courtworker management, and the provision of PLEI.
- The legal systems in place in the jurisdictions differ. The unified court system in Nunavut is significantly different from the court systems in the N.W.T. and the Yukon, which follow the standard Canadian format (Territorial Court, Supreme Court, and Youth Court).
- The limits on legal service provision differ. In the N.W.T. and Nunavut legal services are intended to be available for family and other civil law cases, as well as for criminal cases. Legal service availability for family and other civil law cases is very limited in the Yukon, although the extent of service has slowly been increasing since 2001.
- There are some socio-economic differences between the jurisdictions. The most significant of these is that Nunavut has a far higher percentage of Aboriginal population (in this case, of Inuit) and a far higher percentage of individuals who do not speak English as their first language.
There are also some contextual similarities among the three territories, including the circuit court structure, the practice of presumed eligibility or
"practical delivery," the vast distances between communities, relatively youthful and undereducated populations, a high rate of alcohol and Fetal Alcohol Syndrome/Effects issues, very high crime rates (including violent crime and sexual assault), and the frequent lack of local resources such as remand centres, counselling facilities, and mediation services.
Impact of geography and culture
The impact of geography on service provision appears to be related to the degree of difficulty experienced in accessing communities. As a result, the N.W.T. and Nunavut reported greater impacts than the Yukon. Geography has an impact on:
- Preparation time
- Schedules and workload while in communities
- Access to communities
- Extent of support infrastructure (e.g., telephones, internet access)
- Access to remand facilities and other resources such as process servers, sheriffs, and expert witnesses
- Access to local programs and services (e.g., mediation services or counselling)
The impact of culture, and particularly language, differs fairly significantly among the jurisdictions - in relation to the composition of the population. Jurisdictions with greater Aboriginal populations experience higher impacts. Culture has an impact on the pattern of service delivery (for example, the role of courtworkers in bridging cultural gaps); the quality of service delivery (for example, cross-cultural communication issues may result in de facto under-representation); and the demand for service (if services are not culturally appropriate, demand may be low and not reflective of the underlying unmet need).
All three jurisdictions reported under-representation as a result of geography and culture, with Nunavut reporting significant issues related to culture, and both Nunavut and the N.W.T. reporting greater concerns related to geography than the Yukon.
All three jurisdictions have circuit courts as well as resident courts. The circuit court structure affects:
- The quality of service provision
Circuit courts are characterized by heavy dockets, compressed schedules, time pressures and, particularly in the N.W.T. and Nunavut, difficulty in accessing clients beforehand for case preparation.
- Delays in service provision
Respondents in Nunavut perceived that circuit courts cause frequent and substantial delays in service provision, particularly in the Baffin region. Respondents in the N.W.T. and the Yukon did not identify delays as a significant issue.
- Continuity of counsel
Respondents in the N.W.T., the Yukon, and the Kitikmeot and Kivalliq regions of Nunavut did not raise concerns with respect to continuity of counsel as systems are in place in these jurisdictions to ensure continuity. However, continuity of counsel was raised as a concern in the Baffin region of Nunavut.
Respondents in all three jurisdictions reported under-representation because of the circuit court structure on the quality of service provision, particularly in remote communities. Under-representation related to delays and discontinuity of counsel was reported only in the Baffin region of Nunavut.
Courtworker services are delivered in a variety of ways across the three jurisdictions. Some courtworkers are resident in the communities they serve; others serve several communities; and still others fly into the communities with the circuit court party. In all three jurisdictions, the primary role of courtworkers is to bridge the gap between community members and the legal system, usually by explaining the system and its processes and by interpreting for clients during meetings and court sessions. However, courtworkers in the Yukon also have responsibilities with respect to alternative and community-based justice activities, in contrast with courtworkers from the N.W.T. and Nunavut. In all three jurisdictions it is expected that there will be significant pressure to expand the role of courtworkers as the role of Justice of the Peace courts expands.
A common constraint identified by all courtworkers was a lack of training in procedural issues, legal issues, and issues related to working with clients on an interpersonal basis. Other constraints identified included lack of space for interviewing clients when they are on circuit, the part-time nature of some of the positions (in the N.W.T. and Nunavut), and disparities in compensation (among regions in Nunavut).
Respondents from all three jurisdictions felt that under-representation as a result of lack of training will likely increase as the role of JP courts increases. In some cases, they felt that under-representation currently occurs due to lack of training for both JPs and courtworkers. The practical constraints identified above were also felt to lead to under-representation in the N.W.T. and Nunavut.
Justice of the Peace courts
The current role of JP courts differs among the three jurisdictions in terms of the types of cases being heard and the method of legal service delivery. In the Yukon, both duty counsel and courtworkers play a role in JP courts, whereas in Nunavut and the N.W.T., the vast majority of clients are represented by courtworkers. However, there is a common expectation that the role of JP courts will expand in the future in order to ease the workload of other parties in the legal system. Respondents from all three jurisdictions felt that, as the role of JP courts expands, so will the need for representation and the degree of training required to provide adequate representation.
In the Northwest Territories and Nunavut, respondents felt that under-representation may occur as a result of lack of training for JPs and courtworkers. Respondents from the N.W.T. also reported that, in some communities, there is a lack of representation in JP courts. In the Yukon, lack of representation in JP courts was raised as a concern by respondents, and it was felt that plans to increase the number of JP court sittings would further exacerbate this issue.
Civil legal aid
All three jurisdictions reported that, although theoretical coverage of family and other civil law issues varies, practical coverage of these issues is insufficient and there is a lack of representation. Beyond the lack of human and financial resources to provide legal services in this area, other concerns raised included the following:
- A shortage of private family and other civil lawyers to represent the other party
- Practical limitations on service provision (for example, finding an appropriate party to serve official documents)
- The potential for unresolved family and other civil law cases to escalate into criminal incidents
- The shortage of alternatives to the legal system (for example, the lack of mediation services)
- The special requirements of family law cases (for example, the administrative burden and the acrimonious and emotional nature of the cases)
Respondents from all three jurisdictions identified a significant lack of representation in a wide range of family and other civil law matters.
Prior to first appearance
The method of service delivery prior to first appearance differs significantly among the three jurisdictions. In the Northwest Territories and the Yukon, service is provided primarily by lawyers and infrequently by courtworkers. In Nunavut, the opposite scenario is the case, with courtworkers providing the majority of services prior to first appearance.
Respondents in all three jurisdictions raised concerns about lack of representation prior to first appearance, although the concerns were more significant in the N.W.T. and the Yukon than in Nunavut. Similarly, respondents in all three jurisdictions had concerns with the quality of representation possible over the telephone. In some cases, the quality was considered to be poor enough to result in under-representation.
Public legal education and information (PLEI)
PLEI is provided differently in the three jurisdictions. In the N.W.T. and Nunavut, PLEI is one of the responsibilities of the legal services boards. In the Yukon, PLEI is the responsibility of a separate organization, the Yukon Public Legal Education Association (YPLEA). Despite these differences, respondents from all three jurisdictions identified a wide range of unmet need for PLEI in the areas of:
- Basic information on the functioning of the justice system and legal services
- Information on family law
- Information on other areas of civil law
- Information on criminal law procedures
Respondents in all three jurisdictions identified geography, socio-economic issues, and human resource and administration issues as common cost drivers. They also identified common federal and territorial cost drivers, including legislation (for example, the Youth Criminal Justice Act), policies (for example, zero tolerance for spousal assault), and imbalance in resource allocation between the Crown offices and the legal services boards.
Other cost drivers identified by respondents included the following:
- The lack of less expensive, non-litigious options with respect to family law
- High rates of unemployment and seasonal employment, which increase financial eligibility
- Addressing Aboriginal needs (for involvement, cross-cultural support, and self-government)
- The rate of jury trials (more expensive than trial by judge only) in the N.W.T.
- The number of unrepresented litigants in civil cases in the Yukon, which increases the time required to process a case
- The decentralization of government services in Nunavut, which adds to travel and infrastructure costs
A wide range of solutions were proposed in all three jurisdictions in response to the many areas and types of unmet need identified by respondents. Solutions common to the three jurisdictions include the following:
- Addressing the need for additional counsel on circuits to ease the workload
- Ensuring continuity of counsel on circuits (where this is an issue)
- Additional support for family and other civil law cases
- Improved training for courtworkers (including levels of training and certification)
- Addressing PLEI needs by developing plain language materials and communicating PLEI orally and in-person
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