Legal Aid, Courtworker, and Public Legal Education and Information Needs in the Northwest Territories

11. Federal and Territorial Drivers of Cost

11. Federal and Territorial Drivers of Cost

11.1 Legislative Drivers

There is general agreement that cumulative changes to federal legislation over the past two decades have had a dramatic impact on the time required by defence counsel in criminal cases. In most instances, the impacts are similar to those in southern jurisdictions.

The principal changes cited by respondents pertain to Charter rights under the Constitution Act . These have heightened awareness of individual rights and led to a significant increase in applications such as challenges to the admissibility of evidence. The case law to handle these challenges is complicated and time-consuming to digest. One respondent estimated that jury trials take twice as long as they did 20 years ago.

Examples of change that have impacted criminal defence preparation and trial time are:

  • Strengthened provision for interception of private communications and procedures for obtaining search warrants in drug cases. These changes have increased enforcement capacities in relation to drug operations, and, therefore, the number and size of cases brought to trial.
  • Increased penalties for marijuana cultivation.
  • Uttering threats (cc 264.1) is now a separate charge, often as an additional charge in assault-related cases.
  • Provisions for confiscation of funds suspected of being obtained through “laundering” of the proceeds of drug-dealing. The onus is on the accused to prove the legitimacy of the revenue.
  • The new Youth Criminal Justice Act is anticipated to result in some jury trials, higher maximum penalties, and more conditional sentencing, all of which will put increased demands on defence counsel.

11.2 Policy Drivers

Changes that have been implemented by federal and territorial policy have placed equally significant demands on legal aid costs. Key policies or decisions identified by respondents include:

  • Zero tolerance/mandatory charge policy in spousal assault.
    This policy is seen by many respondents to result in charges that have little chance of success. Since the charge is often by way of indictment and the election in communities is usually for jury trial, the cost implications of this policy for legal aid are significant.
  • Territorial policy (with federal encouragement) that courts should be held in communities rather than only a central resident court.
    The impacts of this policy are discussed in Section 3 (circuit courts) and Section 4 (JP courts).
  • The shared federal/territorial policy to encourage community-based alternative justice processes and more creative conditional sentencing. This requires more up-front and preparatory work for defence counsel to ensure an appropriate sentencing plan is presented. Although some of these cases will be diverted and not involve legal aid expenditures, others require more time in relation to sentencing. The net time demand on legal aid staff cannot reliably be determined.
  • Increase in Crown staff and resources.
    As a result of the increase in staffing implemented by the Crown office in Yellowknife, there is a greater capacity for Crown to pursue and support prosecution of cases that, in the 1990s, would not have proceeded. The capacity also involves access to DNA and blood/hair experts. This greater prosecutorial capacity has put some pressure on the Legal Services Board to support the defence process in equal measure, but without equal resources. One respondent felt that Crown Counsel have pursued dangerous offender applications with extra vigour, again putting more pressure on legal aid budgets.
  • Territorial policy in regard to traffic offences.
    One respondent noted that individuals are convicted if they do not show up in court for traffic offences. A warrant is issued, a show cause hearing may ensue, and legal aid resources become necessary for subsequent proceedings, even though the original offence is relatively minor.
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