Not Just a Substitute for Full Service: Expanded Duty Counsel in Nova Scotia

03:27 PM | by Legal Aid Ontario

Ab Currie, Principal Researcher: Legal Aid and Access to Justice
Department of Justice Canada
and
Karen Hudson, Executive Director, Nova Scotia Legal Aid Commission

Background

Expanded duty counsel (EDC) is an approach to providing duty counsel services that attempts to move matters quickly at the early stages of the court system, often achieving early resolutions prior to a written application for full legal aid service. Expanded duty counsel differs from the traditional facilitating model in that duty counsel lawyers are assigned to the same court on a continuous basis so they are able to see the same client on more than one initial appearance. This allows the lawyer to resolve straightforward cases quickly where the client is able to do so at the early stages of the court process without an application for legal aid and the assignment of a private bar lawyer on a certificate or staff counsel. When early resolution is achieved the client will not need to apply for full representation legal aid. If the matter is not able to be resolved EDC will move the matter forward by accomplishing major steps such as bail applications, disclosure motions, applications for full service and referrals to community resources.

Expanded duty counsel is a delivery approach that has important implications for cost control and the sustainability of legal aid, and for supporting efficiencies in the courts. EDC is, therefore, a potentially important area for legal aid policy and service delivery that links legal aid policy with broader justice system issues.

Expanded duty counsel (EDC) was first implemented in Manitoba in the mid-1990’s.[i] The original idea embodied in expanded duty counsel was to accomplish substantial progress on cases early in the court process. This could include substantial progress such as a bail hearing or achieving a resolution such as a guilty plea and sentencing, a stay or withdrawal, or diversion. Since the Manitoba experiment the expanded duty counsel idea has been adopted in varying degrees in most jurisdictions that have distinct duty counsel components of the legal aid delivery system. In a few jurisdictions EDC has been implemented as a specific project for both family and criminal matters.[ii] In these situations EDC has been implemented in response to financial constraints that have limited the capacity of the legal aid system to provide traditional full service. Thus EDC is often viewed as a patch on a “crumbling system” or as a second best alternative to full service.

Expanded Duty Counsel in Nova Scotia

Currently expanded duty counsel has been implemented in the Halifax Regional Municipality and in the Cape Breton Regional Municipality. Seven experienced staff lawyers provide expanded duty counsel services in Halifax and Sydney for in-custody and non-custody accused in both adult and youth courts. Currently, EDC is being expanded to courts covering the small town and rural areas of the province, providing this service in addition to full service representation. Four and one half Court Support Workers provide assistance to the duty counsel lawyers and are an integral part of the expanded duty counsel team.

Expanded duty counsel in Nova Scotia has evolved over a period of time beginning with the implementation of cells duty counsel in the mid-1990’s, rather than having been implemented at a point in time as a single project. Expanded duty counsel is not a poor second to full service. Rather, it is an important component in the delivery model that accomplishes specific outcomes and is complementary to the full service post-application component of the delivery model. It is the initial building block of the overall delivery model and an important stage in service delivery. This paper provides an overview of expanded duty counsel in Nova Scotia

Some Highlights

EDC is provided without applying the financial eligibility criteria that are required of applicants for full service. About 51% of out-of-custody accused and 27% of in-custody accused served by expanded duty counsel would likely not qualify for service under the financial eligibility guidelines. It seems clear that EDC significantly increases access to justice for people in the province.

Interviews with defense lawyers provided some insights into how the EDC system works. Almost all duty counsel work is carried out by experienced staff lawyers. Their professional style can be characterized by two main features: 1) a commitment to client service including decreasing delay and 2) a holistic defense orientation reflected in a predisposition to employ external services to address the housing, substance abuse, and other social services issues that are related to the clients’ criminal offending.

NSLA employs court support workers who work closely with the legal aid lawyers. The court support workers are key partners with defense counsel in the NSLA approach to EDC. They assemble background case and client information on clients often identifying related non-legal needs, arrange sureties and make arrangements for housing and addictions treatment in connection with bail and sentencing conditions. The court support workers attend court every day to assist the lawyers and to deal with unforeseen problems. They will sometimes assist accused to navigate the court system, for example when people are late for court and require assistance connecting with the duty counsel lawyer. Another important function of the court support workers is to facilitate applications and the quick transfer from duty counsel to full service.

The Senior Prosecutor and a prosecutor in Youth Court were interviewed. According to the Senior Prosecutor, both prosecution and defense counsel are results oriented. Prosecutors recognize the professional competence of the expanded duty counsel lawyers and see it as being in their best interests to work cooperatively with them. This represents a very constructive “whole-systems” approach[iii] in which the major actors in the justice system are seen as occupying interdependent roles in the system. Making the system work at its optimal efficiency and effectiveness requires the recognition by all actors that achieving an effective justice system is a common interest that can be achieved through appropriate constructive professional relationships.[iv]

In that regard, the Senior Prosecutor interviewed for this preliminary assessment emphasized that one of the important benefits of EDC is the reduction in the number of unrepresented accused. She was clear that this is a significant benefit for the prosecution. The Chief Judge also indicated that this reduces the difficulty for judges managing the court process.

Discussion

The expanded duty counsel approach in Nova Scotia is an integral part of the entire delivery model. It is not just a facilitating function to move the accused to the next appearance in the court process and to the legal aid application stage. It is important first step in the delivery model that accomplishes specific service delivery objectives for legal aid, has salutary impacts on other parts of the service delivery model, and has significant justice efficiency benefits for the courts. EDC is a model that achieves early resolutions and extends legal aid service to people not eligible for full service. Using senior criminal lawyers is a key factor in the success of EDC in Nova Scotia. NSLA is developing data collection and statistical measures that will provide a solid evaluation of outcomes.