Nunavut Legal Services Study
The demand for legal services and the pattern and quality of legal services provided in Nunavut are affected by a number of different factors, which are discussed in detail in this section, including:
- Court structure (both the NCJ and the JP Court)
- Limited human resources
Respondents saw the NCJ as a benefit to Nunavut because it is the territory's own court, with resident judges who are respected for the tremendous efforts they have made to understand and be responsive to the uniqueness of Nunavut. The court and its senior judge are well respected for their arduous travel, knowledge of communities and efforts made to achieve community input and involve elders in court sittings.
However, the general impressions of those directly involved in delivering legal services in the NCJ is that - while it has resulted in a more regularized circuit structure and has the advantage of being able to handle civil and family matters during community court circuits - there are still significant frustrations with the intervals between circuits and the time available to conduct court business during court circuits. There is general agreement among respondents that overall, circuit courts are taking place less frequently in the outlying communities since Nunavut was established, and that the court does not stay for long enough when it is in the community.
The NCJ reports that, in 2001, there were 46 non-jury court circuits outside of Iqaluit, as well as court in Iqaluit for at least two weeks of every month. Fifteen jury trials were also conducted by the NCJ in 2001.9
Although, towards the end of this research study, the permanent appointment of a third judge to the NCJ was announced, the court has been scheduling its circuits as if a third judge had been in place, relying on deputy judges from southern Canada to conduct those circuits. The NCJ reports that deputy judges were used 49 times in 2001.10 It is therefore not likely that circuit courts will be more frequent or have any more time in communities as a result of the appointment. The table below shows the draft circuit schedule for 2002, which assumes the presence of three NCJ judges.
|Jan. 7-11||Iqaluit/ Pond Inlet/Clyde River||Docket Non-jury|
|Jan. 14-18||Cape Dorset||Non-jury|
|Jan. 21-25||Iqaluit||Trial Week|
|Jan. 28- Feb. 1||Pangnirtung/Qikitarjuaq Kitikmeot No. 1||Non-jury Non-jury|
|Feb. 11-15||Baker Lake/Rankin||Non-jury|
|Feb. 18-22||Iqaluit/Kimmirut||Trial Week|
|Feb. 25- Mar. 1||Igloolik/Hall Beach Coral Harbour/Dorset||Non-jury Non-jury|
|Mar. 4-8||Iqaluit Kitikmeot No. 2||Docket Non-jury|
|Mar. 11-15||Iqaluit||Trial Week|
|Apr. 2-5||Cape Dorset||Non-jury|
|Apr. 8-12||Iqaluit Kitikmeot No. 1||Docket Non-jury|
|Apr. 22-26||Iqaluit Pond Inlet/Clyde River||Trial Week Non-jury|
|Apr. 29- May 3||Arctic Bay/RB/GF Arviat/Rankin Inlet||Non-jury Non-jury|
|May 21-24||Coral Harbour/Dorset||Non-jury|
|Jun. 3-7||Iqaluit Kitikmeot No. 1||Docket Non-jury|
|Jun. 10-14||Igloolik/Hall Beach Baker Lake/Rankin Inlet||Non-jury Non-jury|
|Jun. 17-21||Iqaluit||Trial Week|
|Jun. 24-28||Cape Dorset||Non-jury|
|Jul. 15-19||Iqaluit||Trial Week|
|Jul. 22-26||Kitikmeot No. 2||Non-jury|
|Aug. 12-16||Kitikmeot No. 1||Non-jury|
|Aug. 19-23||Iqaluit/Kitikmeot||Trial Week|
|Aug. 26-30||Pond Inlet/Clyde River Coral Harbour/Dorset||Non-jury Non-jury|
|Sept. 3-6||Pangnirtung/ Qikitarjuaq||Non-jury|
|Sept. 9-13||Iqaluit Inloolik/Hall Beach||Docket Non-jury|
|Sept. 16-20||Arviat/Rankin Inlet||Non-jury|
|Sept. 23-27||Iqaluit||Trial Week|
|Sept. 30- Oct. 4||Sanikiluaq||Non-jury|
|Oct. 15-18||Cape Dorset||Non-jury|
|Oct. 21-25||Iqaluit Arctic Bay/RB/GF||Trial Week Non-jury|
|Oct. 28- Nov. 1||Kitikmeot No. 2 Baker Lake/Rankin||Non-jury Non-jury|
|Nov. 4-8||Iqaluit Kitikmeot No. 1||Docket Non-jury|
|Nov. 18-22||Iqaluit Pond Inlet/Clyde River||Trial Week Non-jury|
|Nov. 25-29||Coral Harbour/Dorset||Non-jury|
|Dec. 2-6||Iqaluit Pangnirtung/Qikitarjuaq||Docket Non-jury|
|Dec. 9-13||Arviat/Rankin Inlet||Non-jury|
|Dec. 16-20||Iqaluit Igloolik/Hall Beach||Trial Week Non-jury|
Kitikmeot No. 1 - Cambridge Bay and Kugluktuk; Kitikmeot No. 2 - Kugaaruk, Gjoa Haven, Taloyoak; RB - Repulse Bay; GF - Grise Fiord
The actual schedule of the circuit court can vary considerably from the planned schedule. Demand (in terms of the number of cases to be heard) can significantly change the court schedule, allowing it to leave a community early or, alternatively, forcing it to set cases over until the next scheduled visit. Most often it is family law and civil law cases that are carried over to the next docket, which would likely have a disproportionate effect on women, as they are more likely to be involved in family law cases. Once the court arrives in a community, the docket may also be dramatically reduced as the Crown counsel reviews the charges that have been laid. Although the circuit courts are often reacting to issues beyond their control (e.g., the length of the docket or changes to the docket once the court has arrived in the community), the resulting unpredictability in court visits and duration of visits may be difficult for community members to understand, and contributes to the stresses affecting all members of the legal system.
Respondents attributed the decrease in circuits and time spent in the communities to a number of different factors, including geography and climate issues, and the reduction in the number of scheduled flights into and out of remote Nunavut communities over the years. The fact that the court is based in Iqaluit, and has a policy of maximizing the use of scheduled flights rather than court charters, has meant that two days per week are often taken up by travel time for many court circuits, especially in the Kivalliq and Kitikmeot regions. Several respondents also attributed these time constraints to the court's policy of not traveling on weekends. As a result, the court can only travel to the community on a Monday and begin court on Tuesday (or, perhaps, Monday afternoon). The session often must end on Thursday, so that the court can travel out on Friday. Some respondents indicated that these shorter working weeks as a result of travel time have increased community concerns and frustrations with the justice system, especially outside the Baffin base of the NCJ.
The structure of circuit courts (particularly the time between circuits and the short time the court spends in individual communities) affects clients, the level of legal advice and support, the pattern of service delivery, and the quality of services in a number of ways, including:
- The size of court dockets
- The use of deputy judges
- The way in which spousal and sexual assault cases are addressed
- Difficulty gaining access to clients
- Pressure to clear cases from the docket
- Delays in circuit courts
- Discontinuity in defence counsel in circuit courts
Size of court dockets
"One time I was doing a workshop in the Arctic Islands Lodge. They processed 80 cases in three days in Cambridge Bay. They were lined up like pork in the hall …"
Dockets are long because the court does not get to the community very often. The workload is often so heavy that neither the Courtworker nor the defence counsel can address all of the cases, as well as any conflicts that may occur. Judges sometimes assume or even direct that counsel will interview clients in the evenings or will attend sessions in the evenings. This has a direct impact on the quality of service provided. The length of the docket, combined with the short amount of time spent in the community, results in longer sitting times and, occasionally, night sittings. The court is frequently incapable of addressing all of the cases on the docket within the amount of time allocated to that community. A number of cases are adjourned, which results in frustration. In particular, family law and civil law cases are frequently adjourned, as criminal cases take precedence.
When dockets in busier communities can reach 80 charges or more, including matters set for trial, it makes for extreme time pressures over three days. Respondents indicated that circuit courts often have too many trials scheduled for the available time in the community.
"I think a big problem is a lack of time. … I prepare as best I can. Even so, [I'm] carrying 60, 80 files into Kugluktuk for a day and a half … There are more night sittings … Judges get tired hearing 30 cases in the day. Sitting until 10 o'clock at night, then 9 o'clock the next morning. On the last circuit, the court sat till 10 in Kugluktuk on the first day. Last circuit before that, the court sat late two nights."
The NCJ reports having dealt with a total of 4427 charges in 2001, of which 717 (16 percent) were youth charges.12 Based on the NCJ's reported figures for court sessions in Iqaluit, circuits, and jury trials, this works out to approximately 60 charges per session.13
In some cases, the size of the docket and resulting time pressures cause the case to fold and plea-bargaining to take place. Plea-bargaining can have either a positive or negative result for the client (in terms of the sentence received). As a result of longer dockets and less time in the communities, experienced NLSB counsel report that it is arduous and draining to endure months and months of onerous travel, followed by long court days and long nights spent preparing for trials or interviewing clients.
Extensive use of deputy judges
Respondents also gave the general impression that the entire justice system is under-resourced. In particular, the system has been short one judge during the research period and for three years since the establishment of the NCJ. Even though visiting judges have been appointed to fill this gap (visiting judges were on circuit for 46 weeks in 2001), continuity and familiarity of a judge with the dynamics of Nunavut and particular communities have suffered as a result. Respondents expressed concerns with respect to deputy judges - that they lack local and cultural knowledge, and that they may not be as dedicated as northern resident judges to addressing these issues. In general, respondents agreed that it is desirable that the same judge be assigned to particular communities, increasing knowledge of and sensitivity to the uniqueness of each community. The use of deputy judges will be diminished with the recent appointment of a third resident judge, which will reduce the pressure on Courtworkers and NLSB counsel to provide cultural and local knowledge, as well as legal expertise.
Addressing spousal and sexual assault cases
Some respondents raised concerns relating specifically to circuit courts and spousal and sexual assault cases. They highlighted that Victim Impact Statements are not always made available to the victim or are not used during the hearing. They are also uncomfortable that, in some communities, the RCMP officers - not a Victim Witness Assistant - take the impact statement. Being asked to provide a Victim Impact Statement raises the level of expectation of the victim, and these expectations are not always fulfilled by the legal system. Respondents indicated that these statements are often not referred to in court, and that victims may not even be informed that their cases are being heard. Finally, all cases are heard in public and limited allowances are made for witnesses or victims to testify behind a screen, even if they are intimidated by the thought of confronting their abuser in public.
Respondents also felt that some judges do not appear to have enough training in domestic violence issues. There are also particular concerns with respect to non-Aboriginal people working in the justice system (judges and others). While trying to be culturally sensitive, they may be vulnerable to supporting certain contentious attitudes about the role of women and violence against women that may or may not be traditional (see further discussion in Section 3.3 - Impact of culture).
These matters affect the ability of NLSB Courtworkers and legal counsel, as well as Crown counsel and others active in the justice system, to meet the needs of their clients.
Difficulties in getting access to clients
Even though crown and defence counsel often travel ahead of the court party for the purpose of interviewing clients and witnesses, defence counsel report that clients often do not take advantage of the opportunity to see their counsel before they are required to appear. Then, when they do appear, they are often reluctant to wait very long to get an opportunity to meet with counsel. This situation is aggravated in communities where Courtworkers are not present, or are inexperienced. At the moment, 13 of 28 Nunavut communities do not have resident Courtworkers. There is also a current shortage of Courtworkers with adequate training and experience. This reduces the amount of support they are able to provide to legal aid counsel and to clients before, during, and after court circuits, so adding to the workload on already overworked NLSB counsel and contributing to more adjournments or delays.
Defence lawyers also say that there are rarely any consequences when an accused person has apparently not made efforts to meet with a lawyer to prepare for court. As a result, particularly in some communities, even when counsel travel in advance of the court party, it is difficult to locate and meet with people who are scheduled to appear in court, resulting in delays and further compressed preparation time. Judges refuse to go ahead with cases when the accused is unrepresented. Although this reflects an appropriate concern about the right of an accused person to be represented by counsel, it is also based on the reality that lawyers are critical in moving cases rapidly through the system by managing the process for the accused person. In some situations, when accused persons have not made themselves available even when defence counsel has traveled to a community in advance of the court party, defence counsel are expected or even directed to interview accused persons in the evenings, adding to the pressures of short and intense working weeks.
Pressures to clear cases from the docket
Perhaps as a result of expectations that justice in Nunavut would be more accessible, and swifter, respondents reported that the NCJ seems very concerned with clearance rates - i.e., the speed with which a case is dealt with. This puts subtle but strong pressure on all players in the system, which results in a very different way of practising law than is the case in southern Canada: there are fewer trials, shorter trials, pressure to make admissions, and inadequate research and preparation time. These pressures can in turn result in cases being moved back into the JP court system, which some respondents felt is not always appropriate and respectful of the Rule of Law, where personnel are not fully trained.
Also, contrary to expectations prior to its establishment, the experience of the NCJ has been that jury trials cannot be done during busy regular circuit weeks, so jury trials must be dealt with separately. Although, in 2001, Nunavut has had only 15 jury trials compared with 35 jury trials in its neighboring jurisdiction, the Northwest Territories, setting aside this dedicated court time adds to overall time pressures on the court system, and on NLSB service providers in particular
Delays in the NCJ
Delays during circuit court are attributed to a number of factors:
- Weather problems, particularly during changing seasons, often prevent the court from arriving in a particular community and, therefore, from hearing cases in a timely manner.
- Lengthy dockets often mean that the list cannot be dealt with during the time allocated to the community.
- Defence counsel do not always have time to prepare cases for court, particularly when the court goes beyond the first community on the circuit. (Counsel can travel to the first community ahead of time, but after that point must travel with the court party.) This might result in counsel requesting an adjournment.
- Frequent delays result when accused persons have not had or have not taken the opportunity to instruct counsel. Even if the lack of representation is the choice of the accused or due to lack of action on the part of the accused, judges will not proceed without counsel being assigned. (Some respondents felt this is a paternalistic approach on the part of the judiciary, which encourages lack of responsibility on the part of clients.)
- Discontinuity of defence counsel, discussed further below, also causes delays and adjournments.
Some respondents and workshop participants reported that they felt delays in circuit courts are too frequent and too long. The general perception of respondents is that family law and civil law matters are more likely to be postponed than criminal matters, because they are often addressed at the end of a busy docket when time has run out. However, most respondents indicated that all types of cases are regularly postponed. For example, one respondent reported that at a recent sitting every single matter on the docket was adjourned, including a preliminary hearing into a sexual assault case, even though the court was in session for two and a half days in that particular community.
"I had a lawyer in my office for a family law case in Kugluktuk [counsel was representing the client by telephone]. She waited until midnight for the case to be heard, and then it was adjourned."
Delays affect all players in the legal system, but particularly counsel, who must be available to serve their clients and deal with their client's frustration when delays occur. Family law counsel suffer more than criminal law counsel, as family law cases are always at the end of the docket, and therefore are most frequently delayed. Delays in hearing family law cases may have a disproportionate effect on women, as family law clients are frequently female.
Statistical information on the number of adjournments (delays) occurring during circuit courts was gathered from the final dockets. At first glance, the number of adjourned charges seems high in comparison with the overall number of charges, supporting the concerns of some respondents about the extent of delays on circuit courts (see Figure 3.1 below).
Source: Concluded Dockets for criminal court from September 2000 to April 2002, as available at the NLSB office in Gjoa Haven.
However, slightly over half of these adjournments occur for normal reasons (i.e., for reasons that would occur in any court, such as to prepare for a jury trial or a preliminary hearing), as shown in Figure 3.2, below. Therefore, the number of unusual adjournments is not as high in relation to overall charges as would first appear to be the case.
Source: Concluded Dockets for criminal court from September 2000 to April 2002, as available at the NLSB office in Gjoa Haven.
Note: This figure is based on the assumption that certain reasons for appearance reflect normal reasons for adjourning a case, whereas the remaining reasons do not. Reasons considered normal for adjournment were to plead guilty or not guilty (PLEA), to set a date for trial (TST/SDTR), to wait for a pre-disposition or pre-sentencing report (PSR/PDR), preliminary hearing (PRELIM), to go to a jury trial (JURY TRIAL), and for Crown election (CR ELECT/ELECT).
Discontinuity in defence counsel
Discontinuity in defence counsel causes obvious difficulties for clients. It also puts stress on counsel, who must quickly bring themselves up to speed on the cases they were not handling previously; manage the client's frustration at the change in counsel; and deal with their own feelings of lack of closure when they cannot follow a case through to completion.
Respondents were unable to quantify the extent of discontinuity of defence counsel and were generally unable to identify whether discontinuity is more prevalent in circuit courts or in residential courts. Statistical information was not available with respect to discontinuity in defence counsel, due to a general absence of completed case closing reports (see Section 1.2.3 for details).
However, there is a strong belief among respondents that discontinuity in defence counsel most often results in cases which are dealt with according to the NLSB's policy of presumed eligibility. This is of particular importance as by far the majority of services provided by the NLSB are provided under presumed eligibility.
Presumed eligibility was introduced in Legal Aid Bulletin 97-1 (issued July 25, 1997) and is described as follows:
All persons shall be presumed to be financially eligible for circuit and duty counsel services as of January 1, 1997. Circuit and duty counsel services may be provided without consideration of financial eligibility, i.e., without application and approval for legal aid.
The policy of presumed eligibility is unique to Nunavut and the NWT. In other jurisdictions, legal aid is only available to individuals who can demonstrate financial need through the legal aid application process.
The policy of presumed eligibility calls on duty counsel on circuit court to represent all accused persons who appear in court and seek representation, up until the point where the accused decides to plead not guilty. This is more efficient for all concerned, since it eliminates delays that would be required if it was necessary for every accused to first fill out and be approved for legal aid before they could be represented in court. As shown in Figure 3.3, below, between two and four times as many charges are covered by presumed eligibility than trigger a legal aid application.
Source: Final Dockets and Supplementary Dockets for criminal court from September 2000 to April 2002, as available at the NLSB office in Gjoa Haven.
Note: These figures are based on the assumption that all reasons for appearance except for going to trial (TRIAL), preliminary hearings (PRELIM), and conditional sentence hearings (CS-HEAR) are covered under presumed eligibility and, therefore, no legal aid application was filed. The number of charges, reflected in these figures, will be much greater than the number of applications received because most individuals are charged with more than one offence, but only complete one application form that covers all offences.
Some respondents felt that presumed eligibility may be tied to discontinuity in defence counsel for two reasons:
- There is no way to guarantee that the person who served as duty counsel on the last circuit through a particular community will also serve as duty counsel on the next circuit. Therefore, because the majority of clients are seen by duty counsel through the presumed eligibility system and do not have an assigned legal aid counsel, some discontinuity is inherent in the system. This discontinuity is compounded, however, when, usually due to time the pressures of circuit court, cases are adjourned and, therefore, accused persons are required to return to court a second time, likely with a different duty counsel.
- In some cases, due to the excessive workload while on circuit, duty counsel will adjourn the case because they have not had time to prepare or because they know they will not be the duty counsel on the next circuit through that particular community. Some respondents perceived that the practice of requesting an adjournment in order to avoid carrying a case is particularly a problem when some private practitioners are acting as duty counsel.
In contrast, some respondents indicated that presumed eligibility is not or need not be tied to discontinuity in defence counsel. For example, in the Kitikmeot and Kivalliq regions, the same clinic lawyers are always the duty counsel, and, therefore, even if there are adjournments, they will continue to represent the same clients. In one region, a method of reducing the potential for discontinuity was developed whereby the person who served a client as duty counsel was then responsible for that file until all of the charges were addressed. However, this system eventually broke down because, at a certain point, all the available counsel were responsible for one file or another on every single docket, which was inefficient.
The majority of respondents also strongly emphasized that, although there have been some problems associated with the presumed eligibility system, the system itself is of value in Nunavut. They felt it is far more efficient to have a duty counsel than to have to wait for applications to be filled out, processed and approved. Efficiencies are also gained, for lower volume circuits, by not having to send multiple counsel on circuit.
"The effort being made to match two lawyers on each circuit, that's putting a burden on the pool of lawyers, that's putting a strain on the pool of lawyers practising in Nunavut."
The NLSB is currently implementing a plan to attempt to manage the extent of discontinuity in defence counsel on circuit. The plan is to have two NLSB lawyers assigned to busy circuits. One lawyer then deals with new cases, while the other lawyer deals with cases adjourned from the previous circuit. This system works well, provided the human resources are available to the NLSB and there are enough funds in the NLSB budget to cover the added expense of sending two lawyers on circuit.
Since Nunavut has been established, a full-time experienced Justice of the Peace Administrator has been supported to make significant efforts towards the appointment and training of local, often Inuit, justices of the peace. Nunavut JPs have taken on significant responsibilities in conducting bail or show cause hearings. However, despite the accelerated training efforts being directed at JPs, only about one third of Nunavut JPs are available to handle sentencing and only about one sixth have a certification level sufficient to undertake trials. Even though JPs with higher qualifications are mostly located in the busier communities, it is clear that JP courts in Nunavut have not yet been able to take up the slack after the elimination of the Territorial Court. Efforts are underway to train JPs to handle Youth Court and family law matters, and there is even speculation that some JPs might undertake preliminary hearings, but certification of significant numbers of JPs in those areas is still several years away.
As a result, the NCJ is dealing with a significantly increased workload in a society where crime rates and related social problems (see Section 2.1) are resulting in longer court dockets and more serious cases. This adds to the pressures on legal aid counsel in trying to represent large numbers of clients in compressed community court sessions.
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