Nunavut Legal Services Study
4. COST OF SERVICE PROVISION (continued)
4.2 IMPACT OF THE FEDERAL GOVERNMENT
Decisions made at the federal government level have a significant impact on the cost of legal service provision in Nunavut. This impact is a result of:
- Federal legislation
- Federal policies
- Federal resource allocation decisions
"We have promised (in new Youth Justice legislation that) everyone under 18 can have access to a lawyer without regard to budget … Haven't thought of the legal aid impact. [The federal government is] not likely to address how Nunavut is going to deal with this in particular … In an ideal world, every federal law would identify a legal aid impact, and Nunavut would be specifically addressed."
Each of these cost drivers is discussed in detail below.
4.2.1 Federal legislation
Federal legislation has a number of effects on the cost of legal aid service delivery. Some costs identified by respondents are tied to specific pieces of legislation, either current or upcoming, while others are tied to more general concerns about trends in legislation and its development.
Specific pieces of legislation that raised concerns with some respondents included:
- The Youth Criminal Justice Act - The procedures suggested in the Act are very complex and will require increased training for NLSB employees and PLEI for the public. The Act will also allow more children to be "moved up" to the NCJ, which will increase the demands on NLSB counsel. Finally, the Act will also place additional stress on other aspects of the legal system in Nunavut, particularly the Youth Justice Committees, which may have a follow-on effect on the NLSB.
- The new firearms legislation has resulted in a number of seizures of improperly stored weapons, which are not returned to their owners. Some NLSB counsel report being asked to support clients in obtaining the return of their firearms, which are of great importance as much of the population is still at least partially dependent on hunting for food.
Trends in legislation and its development that were seen by some respondents to increase the cost burden on the NLSB included:
- Family law legislation generally results in cases that take longer to complete than criminal law cases and may be part of an ongoing, iterative process as variances are sought. Therefore, a greater amount of time and costs for the NLSB are associated with family law cases.
- In general, criminal legislation is becoming more complex, with timelines, elections, and new processes, which adds to the preparation requirements, and to the actual time and cost associated with criminal cases. For example, some respondents indicated that Criminal Code amendments have put in place a strict time limit on applying for the return of seized cash in drug offences. This process is more complex, paper-intensive, and demanding of an immediate response. All that puts a strain on NLSB resources, especially in cases that arise in remote locations.
- The absence of consultation or delays in consultation associated with new and changed legislation can put valuable local initiatives at risk. For example, recent amendments to the Criminal Code intended to prevent laypersons from practising law in traffic and other courts in southern urban areas threatened to jeopardize the Nunavut policy of expanding the role of Courtworkers in JP courts. (Eventually, after significant efforts on the part of the GN, the bill was amended, which resolved the problem.) The NLSB must invest a great deal of time and energy into keeping on top of such issues.
- Too few internal resources for assessing new and changed legislation and identifying impacts that they might have on the justice system as a whole, including on legal aid service delivery.
- The federal and territorial governments frequently reach an agreement on a new legislative initiative without considering or addressing the associated costs and implementation issues.
- A focus on enforcing the Liquor Act and other drug-related acts rather than addressing the root causes of social problems in the territory such as inadequate housing, health care, education, employment, etc.
"Then there is the war on drugs. … The belief that the root cause of all evil in the North is not lack of employment, but intoxicants. This leads the system to pursue intoxicants, not the root causes.
Almost all the crime is related to alcohol abuse …"
4.2.2 Federal policies
Respondents and workshop participants identified four ways in which federal policies affect the cost of legal aid service delivery:
- Through the actions of the RCMP
- Through the actions of the Crown counsel
- Through the actions of judges
- Through PLEI activities
Some respondents indicated that the impact of these policies depends a great deal on the individual officers, counsel, or judges involved. They felt that some individuals exercise discretion in applying federal policies while others are inflexible. Some respondents felt that it is this inflexibility that results in stresses on the justice system and a resulting higher cost of legal service delivery.
The actions of the RCMP
Respondents identified several ways in which the actions of the RCMP increase the costs of legal service delivery by increasing the demand for the NLSB's services, including:
- Failure to make use of alternative justice initiatives. It should be noted that the RCMP indicate that they do not currently have the capacity to make use of these initiatives as much as they would like to, although they actively support them from the highest level. They indicate that there is also a capacity issue with respect to the Community Justice Committee and Group Family Conferencing programs that are in place. RCMP also indicate that they expect to encounter difficulties in promoting alternative justice initiatives because they require an admission of responsibility on the part of the accused, which defence counsel are often against.
- Overpolicing of the North and resultant overcharging. Nunavut has more police officers per capita than any province or territory, with the exception of the Yukon and the NWT (see the discussion in Section 2.1). Some respondents felt that this results in more charges being laid than would be the case in other jurisdictions. Other respondents believed that overcharging results from the fact that the Nunavut Crown Counsel does not have the capacity to review charges before they are laid in community detachments. The RCMP pointed out that, in busier places, they can barely handle the number of calls they receive. Furthermore, since an RCMP officer was, tragically, shot in Cape Dorset recently, there is a policy in place that there must be two officers in each community, for safety's sake. If overcharging is taking place, then it is a direct cause of increased costs for the NLSB, which must cover the cost of representation and plea-bargaining on each of the charges laid.
However, when considering the effect of the actions of the RCMP, many respondents and workshop participants also indicated that they are aware that individual RCMP officers have very little discretion or latitude in the way in which they perform their duties. Many of these individuals felt that greater discretion for RCMP officers would enable them to uphold the law while meeting the needs of the community and basing their decisions on local knowledge of the situation.
The actions of Crown counsel
Respondents and workshop participants also reported several ways in which the actions of the Crown are contributing to increased legal aid service delivery costs:
- Lack of prosecutorial oversight. Several respondents indicated their belief that it is the Crown's responsibility to ensure that the police do not overcharge (see discussion above). Other respondents indicated that the Crown does not have the resources to fulfill this role. The RCMP also indicates that, if overcharging is an issue, it is the Crown's responsibility to educate the police on this issue. This lack of prosecutorial oversight is seen as contributing to increased demand for the NLSB's services.
- Undertakings and conditions in sentencing. Several respondents indicated that the Crown asks for too many conditions and undertakings in the sentencing process, which sets the stage for a high number of breaches. Many charges of breach of undertaking result from drinking, which is a common and all too predictable problem in the North. Breaches result in the accused returning to court and, therefore, in more costs for the legal aid system. Other respondents pointed to the difficulty in getting orders varied (for example, if the situation has changed, such as a reconciliation in a spousal assault case) as contributing to the high number of breaches. The RCMP disagreed with this perspective and, again, felt that it is the Crown's responsibility to inform them if this is the case in Justice of the Peace courts, where officers are acting as prosecutors.
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Proceeding by indictment. Several respondents indicated that the Crown chooses to proceed by indictment more often than is strictly necessary. They reported that the Crown generally argues that it is necessary to proceed by indictment because of the time period limitation (the Crown can only proceed summarily within six months of the charges being laid). However, respondents felt that some of these cases could proceed summarily instead and pointed out that cases that proceed by indictment are a greater drain on NLSB resources than those that proceed summarily. The Crown has a policy of assessing each situation on a case-by-case basis, and uses set criteria such as the seriousness of the case and the accused's record to determine whether to proceed summarily or by indictment.
"Breach of undertaking [is a common charge]. Inuit have a tradition of trying to work through disputes together, staying together … With many of relationship assaults, [the court] will say no contact [between the partners] … Inevitably they get together and charges result from that. By virtue of cultural differences many Inuit people are getting into serious trouble."
- Zero tolerance approach. Some respondents indicated that the policy of zero tolerance for spousal assault increases the workload for all parties to the system. Other respondents agreed and indicated that they would like this policy to be reviewed to examine whether, in some cases, spousal assault could be addressed in an alternative justice forum. These respondents felt that this approach could still reflect zero tolerance, but would be less resource-intensive for all players in the legal system. Other respondents raised concerns about addressing issues such as spousal assaults through alternative or community-based justice programs, as they felt there are power imbalance issues that would have to be very carefully addressed in these situations.
The actions of judges
Finally, respondents indicated that, in some cases, judges have instituted their own policies, which adds to the workload of NLSB counsel and, therefore, adds costs to legal service delivery. The "report back to court" policy instituted by one judge was singled out as an example. This policy requires the accused to report back to the court after a given period of time, where they are represented for a second time by the duty counsel, adding significantly to the burden on the NLSB duty counsel, as well as on Courtworkers and probation officers.
PLEI activities
PLEI activities undertaken by the federal government at the national level can have a significant impact on the demand faced by the NLSB as people gain a better understanding of their rights under the law. This causes a significant problem when no additional federal funding is made available to help the NLSB meet this demand by hiring more staff or engaging in PLEI activities of its own. A recent example of this impact was the federal government's efforts to educate Canadians on their right to child support after divorce. This resulted in a significant increase in demand for family law legal aid in Nunavut, which the NLSB was unable to manage due to inadequate levels of human resources. A large backlog of family law cases resulted, which is only now being addressed as two new family law practitioners have joined the NLSB staff.
4.2.3 Federal resource allocation decisions
"[Crown] capacity is increasing at a faster rate than the defence bar. [They're] sometimes a step ahead of the game … [They're] ready to start discussions about admissions, to save witnesses from [coming from] outside the territory … Generally, the reaction [from defence counsel] is 'there's no time now.'"
Respondents identified a number of resource allocation decisions made by the federal government that affect the cost of legal service delivery. By far the most significant of these is the imbalance in resource allocation between the judiciary, the Crown, and the NLSB, which they believe can be seen in terms of the human resources available to each "group" within the justice system.
Many respondents felt that the NLSB is "out-gunned" by the Crown, which means that:
- The Crown can be more flexible in the allocation of its human resources because it has a greater pool to draw upon (both in Nunavut and in terms of relief counsel from the south).
- The Crown can use its additional human resources to visit communities ahead of the court, and therefore spend more time preparing for trial.
- The Crown can spend less time in court and more time on other duties.
- The Crown can pursue weaker cases, as it has the resources to do so, and therefore is less motivated to settle cases outside of court.
It should also be noted, however, that some respondents felt that the Crown Counsel's office is also under-resourced in the face of its workload. Therefore, they do not wish to see resources reallocated from the Crown to the NLSB. Rather, they wish to see both groups receive adequate funding to fulfill their mandates.
Many respondents, comparing resources allocated to the NLSB with those provided to federally funded Crown offices, observed that legal aid services seem less generously supported. Furthermore, unlike Crown offices, the NLSB, with its headquarters in remote Gjoa Haven, has a presence and visibility in all Nunavut's far-flung regions, as well as a mandate to deliver family and civil legal services, public legal education and information, on top of handling demanding and numerous criminal law cases.
Some other resource allocation decisions raised by respondents included:
- Crown Counsel are not located in the communities where there are regional Legal Service Clinics. If they were, the potential for addressing some issues in advance, and thereby saving time and effort during court sittings, would be greater.
- The NLSB cannot raise any revenues. If they are able to request and receive a contribution from an applicant, it goes directly into the government's general revenues, rather than contributing to the funding of the Legal Aid Plan.
- Funds were set aside for an additional judge in the NCJ, but to date no funding has been made available to hire additional NLSB counsel (or Crown Counsel for that matter) to appear before the new judge.
4.3 SUMMARY OF SECTION 4.
The following table summarizes the key points relating to Section 4.
Table 4.2: Summary of Section 4.
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