The number of times the Crown and Legal Aid change lawyers on cases in remote communities is “potentially prejudicial to the administration of justice,” an NWT judge believes.
Territorial Court Judge Donovan Molloy said switching lawyers causes delays to cases and means many people accused of crimes have little contact with their Legal Aid counsel before trial.
In a January 28 decision, Molloy said the “consistent passing-off or reassignment of files and lack of continuity appears to me to be highly inefficient and potentially prejudicial.”
He wrote: “One must also question the impact upon the interests of accused persons, many of whom often appear to have had no significant interaction with their assigned counsel until at or very near to their actual trial dates.”
Molloy’s comments were made while deciding whether a key piece of evidence – a psycho-educational assessment – regarding an underage sexual assault victim in a remote community could be disclosed by the Crown to her accused attacker.
Details about the case can’t be published as it is set to go to trial. There is a publication ban on any information that could identify the victim.
The judge noted the man’s Legal Aid lawyer was changed mid-case.
Molloy determined a psycho-educational assessment of the girl can be edited and provided to the man’s lawyer only. They can review together, but the accused is not to be given a copy. All copies of the assessment must be returned to the Crown after trial and any subsequent appeal periods, if he is found guilty.
The judge made his comments about the swapping of lawyers in the decision’s footnotes.
Schedules, travel and conflicts
Molloy was called to the bar in Newfoundland and Labrador, where he rose to the position of director of public prosecutions and deputy minister of criminal operations. Since being appointed to the NWT Territorial Court, he has been outspoken on a range of issues related to northern justice.
The NWT’s chief prosecutor, Alex Godfrey, told Cabin Radio the Public Prosecution Service of Canada (PPSC) attempts to have the same prosecutors and Crown witness coordinators conduct a prosecution because of their familiarity with the witnesses, the evidence and legal issues in the case.
But this may not be possible in the NWT due to a number of factors, he said.
Those factors include the travel involved, lawyers’ schedules and experience, legal conflicts, and the complexity of some files.
“The PPSC takes available steps to minimize the effects of changes in file assignments so that the cases are prosecuted in a way that continues to serve the public interest and the administration of justice,” Godfrey said.
“The PPSC is committed to ensuring that all cases are prosecuted effectively, fairly and according to the highest standards. This commitment includes ensuring that decisions are made in a principled, consistent manner in accordance with its prosecution policies.”
The NWT Legislative Assembly allocates money to the Legal Aid Commission to administer the Legal Aid Act and provide legal services to people accused of crimes who can’t afford a lawyer.
A spokesperson for the Department of Justice echoed many of Godfrey’s concerns about providing lawyers for court circuits in remote communities.
“The Legal Aid Commission has policies and processes in place to mitigate the concerns that can arise from multiple lawyers on one case,” said Ngan Trinh, senior communications advisor, noting each lawyer is expected to complete a thorough memo to continuing counsel for every court appearance.
“Further, there is an expectation upon circuit counsel that files will be forwarded within two weeks of the completion of the circuit, to ensure that the next lawyer has the time to be fully briefed and prepared for the next appearance.”
The Legal Aid Commission “makes every reasonable effort to assign cases and circuit assignments in a manner that creates as much continuity as possible,” she said.
However, court sessions in multiple communities each week and the limited number of private lawyers — who typically have busy practices in both the Territorial and Supreme Court — force changes on files.
“And, of course,” said Trinh, “the need to be fiscally responsible.”
The commission consistently receives between 1,200 and 1,300 applications per year, and maintains a list of criminal and family private lawyers who are prepared to accept legal aid cases. There are also several staff lawyers.
Applicants do not have the right to choose a particular lawyer unless charged with an offence for which life imprisonment is the maximum penalty.