Defence lawyer calls for improvements to NWT legal aid

A criminal defence lawyer says improvements are needed to legislation governing legal aid in the NWT to ensure access to justice.

John Hale made the remarks to a committee of MLAs on Thursday. The committee is conducting a 10-year statutory review of the territory’s Legal Aid Act.

Hale said he has been practising law for 35 years, largely in Ontario, and has taught law at the University of Ottawa and Carleton University. He began working in the NWT in 2018 and moved to Yellowknife last year.

“What I’ve seen is that the Legal Aid Commission faces enormous challenges in providing access to justice across such a diverse territory where we have a metropolitan centre, Yellowknife, but the same commission has to provide services to populations in remote communities, often only fly-in communities,” he said.

“The Legal Aid Commission is facing bigger problems now because of attrition, because of loss of lawyers.”

Hale said while the NWT Legal Aid Commission has nine staff positions, currently just five of those positions are filled and the legal aid program largely relies on private lawyers. He said there are seven private criminal lawyers based in the NWT on the legal aid panel, while panel lawyers from outside the territory may only visit the North once or twice a year.

“The legal aid system ensures that even the most marginalized community member [is] competently and professionally and respectfully represented in court,” Hale said.

“When lawyers aren’t willing to take on legal aid cases, it reduces access to justice and I’m worried that we’re getting to that point where legal aid is having trouble finding lawyers to take on cases.”

Hale added that most people accessing legal aid in the NWT are Indigenous and said making sure they have proper representation could help reduce the “alarmingly high” incarceration rate of Indigenous people.

Low pay, inadequate hours and burnout

Hale said he believes the loss of lawyers in the NWT is attributable to the low rate of pay for legal aid as well as inadequate time to work on cases under territorial regulations. He added the “sometimes traumatizing nature” of the work lawyers have to do can lead to burnout.

According to Hale, the pay rates for legal aid panel lawyers in the territory have not changed since December 2014, while the pay for Crown prosecutors, judges, police and probation officers has increased.

Considering inflation, he said, legal aid lawyers are now paid 29 percent less compared to 2014 levels.

Hale added that the maximum amount of hours lawyers can be paid to work on legal aid cases is “woefully inadequate.” He said while the regulations give lawyers between seven and 50 hours of preparation time, depending on the type of case, it takes lawyers 20 to 100 hours to properly prepare for those trials.

As a result, he said, the executive director of the Legal Aid Commission is “inundated” with requests to approve pay for further hours lawyers have worked.

“We don’t want to be going hat in hand to ask to be paid for the work that we did,” Hale said. “The number of hours set should appropriately reflect how much work is typically required for not only representing people at trial, but also in other areas such as bail hearings, bail reviews.”

Hale highlighted other areas of the Legal Aid Act that he said could be improved.

He suggested allowing people who have previously been approved for legal aid to demonstrate eligibility for further legal aid services by confirming their financial status has not changed, rather than having to reapply. He said that would eliminate court delays – particularly when the court travels to communities – and reduce administrative work.

“It puts an extra burden on court workers who have to gather information,” he said, “It presents a hardship for accused individuals who have to rustle up their bank statements again and find all the information, which isn’t easy in the communities, where there’s not ready access to internet or photocopiers or whatever it is needed.”

Hale also recommended amending the act to consider pre-existing relationships between clients and lawyers when the executive director assigns lawyers to cases. He said currently, other than in murder cases, clients have no say over which legal aid lawyer is assigned to their case.

Hale said while that may be unavoidable when court travels to communities – as legal aid is limited in the number of lawyers it can send – he said the practice does not make sense in Yellowknife.

“Taking away this choice disenfranchises individuals, most of whom, as we know, are Indigenous and are already feeling marginalized in the criminal justice system and it causes these individuals to feel like they have no agency in one of the most significant events of their life,” he said.

“If I’ve represented somebody and have established a relationship with that person and then that first person has confided in me, has trust in me, it, to me, makes no sense that they should have to start over from scratch and establish a whole new relationship with another lawyer.

“It should be taken into account as one factor to be considered that there’s a pre-existing relationship, so that clients aren’t kind-of shunted around like pawns on the chessboard, just assigned to whoever is next up on the list.”

Beyond regulatory changes, Hale said he would like to see funding to allow legal aid lawyers to arrive in communities a day early when travelling for court in order to meet with community members.

He said currently, the judge, court workers and legal aid defence lawyers all arrive in the community at the same time and are transported in RCMP vehicles together like a “travelling justice show.”

“We get there and I feel like we’re bringing our justice system and imposing it on people there without really getting a chance to meet people,” he said, adding that Crown prosecutors have funding to arrive earlier.

“It leaves a bad taste in my mouth.”

What does legal aid cover?

The territory’s legal aid program provides legal services, advice and representation to NWT residents who would otherwise be unable to afford those services.

An outreach lawyer can provide individuals up to an hour of free, confidential advice, while full legal aid services are available for:

• criminal cases;
• some appeals;
• child support, custody or access cases;
• spousal support cases; and
• division of property and divorce when related to child support or child welfare.

To qualify, people must meet financial eligibility criteria and may be required to pay some of the costs of their case.

Legal aid is not available for:

• civil cases – in other words if you are being sued or want to sue someone;
• simple divorces;
• hearings for failing to comply with a support order;
• libel or slander cases;
• wills;
• matters dealing with elections;
• human rights matters;
• first offence impaired driving;
• careless driving;
• consumption of liquor by a minor; or
• Workers’ Safety and Compensation Commission matters.

During a public briefing on the Legal Aid Act in February, then-justice minister RJ Simpson said he believes the NWT’s legal aid program is the second most generous in Canada behind Nunavut in terms of the services it covers. (Jay Macdonald has been responsible for the justice portfolio since a cabinet shuffle in March.)

At that briefing, Mackenzie Delta MLA George Nerysoo questioned whether the NWT government would consider expanding legal aid to include legal help for wills and estates, while Monfwi MLA Jane Weyallon Armstrong raised the prospect of expanding legal aid to help renters facing eviction.

Simpson said he was not opposed to providing legal support for wills and estates but said there is limited territorial funding for legal aid and it has not previously come forward as an initiative. He said there is a process by which a rental officer will put conditions in place before someone is evicted.

Representatives of the justice department did not raise any concerns with the Legal Aid Act or its regulations during February’s briefing.

“The department believes the act currently functions as intended and legal aid services are effectively administered,” Simpson said.

“There is, however, always room for improvement.”