Legal Aid Research Series Court Side Study of Adult Unrepresented Accused in the Provincial Criminal Courts Part 1: Overview Report

Executive Summary

Report

Robert G. Hann, Colin Meredith, Joan Nuffield and Mira Svoboda, “Court Site Study of Adult Unrepresented Accused in the Provincial Criminal Courts,” Robert Hann & Associates Limited and ARC Applied Research Consultants, prepared for the Department of Justice Canada (2002).

Methodology

A study of representation among adult criminal accused in nine selected provincial courts across Canada.  Methodology involved analysis of a sample of disposed cases (or, at one site, court dockets), direct court observation, and interviews with local key informants.

Findings: Extent of Self-Representation

  • Access to justice concerns are raised by the significant numbers of unrepresented accused who were found at many of the nine court sites studied:
    • at first appearance … from 5% to 61% above 36% in 4 courts;
    • at second appearance . from 2% to 38% above 30% in 4 courts;
    • at third appearance . from 1% to 32% above 19% in 4 courts;
    • at bail … from 3% to 72% above  12% in 4 courts;
    • at plea .. from 6% to 41% above  18% in 4 courts;
    • at final appearance . from 6% to 46% above  23% in 4 courts.
  • Even where accused are represented, there are often significant problems of accused being under-represented as a result of resource and other restrictions on legal aid staff lawyers, duty counsel, and tariffs paid to the private bar.  Under-representation is reflected in limitations on the quality and quantum of the legal assistance available.
  • Equality in access to justice concerns are raised in the wide variance seen across the nine sites, not just in the representation figures, but in related service delivery strategies, personnel, and court management.
  • Understanding the legal representation problem and developing solutions cannot be done in isolation. It must be done in the full context of court case management, policies and attitudes towards duty counsel and unrepresented accused, and the availability of resources. One site was exemplary for its court case management and the quality of legal aid service, illustrating that good legal representation will help expedite court case-flow. Sound court case management will, in turn, reduce the number of unproductive appearances, thus freeing up legal aid services to assist with more matters.
  • Despite the traditional emphasis on the criminal trial in defence work, previous research, as well as the key informants interviewed for this study, suggest that the earlier stages of the criminal justice process are of key importance. The manner in which representation is approached at earlier stages will affect not only the outcome for the accused, but also the functioning of the court, both at early and later stages.
  • Key informants believed the typical criminal defendant would and does have difficulty understanding the criminal process, let alone defending him/herself. Criminal accused tend to be poorly educated, have low levels of literacy, and lead disordered lives. At some sites, many are immigrants or others (such as Aboriginal defendants) who face language and cultural barriers. In some courts, there are also significant numbers of mentally disordered accused.

Findings: Impacts on the Accused

  • The study did not permit the drawing of causal connections between representation and the impacts on accused.
    • However, unrepresented accused do experience serious consequences with respect to the final disposition of their case in court:
    • In some situations, depending on the jurisdiction and the stage at which plea was entered, well in excess of 50 percent of accused are convicted without the benefit of legal representation.
  • In some situations, depending on the jurisdiction and the type of offence, up to 30 percent of those convicted receive custodial sentences, again without benefit of legal representation.
    • Most key informants believed that the representation deficits of unrepresented and under-represented accused lead them to suffer negative impacts due to in serious mistakes they make during the court process, e.g.:
    • At most sites, significant numbers of accused plead guilty “just to get it over with” – without understanding the strength of the crown’s case, the options regarding dispositions (e.g., discharges vs. convictions) and/or the likely and possible sentences.
    • Unrepresented accused (and, at some sites, accused represented by duty counsel) may proceed without having seen the disclosure.
    • Crowns generally will not plea bargain with unrepresented accused, who thus do not benefit from reduced or dropped charges.
    • Accused often do not present relevant information that would influence decisions made during the court process (e.g., regarding bail) and at trial and sentencing.
    • Unrepresented accused often have no idea how to introduce evidence, examine witnesses or speak to sentence in an appropriate manner – let alone how to do so to their own advantage.
    • Key informants suggested a large number of other serious errors made by unrepresented accused at each stage of the criminal process.
  • Key informants indicated that there are serious social and economic consequences of the lack of representation, apart from the criminal justice system consequences noted above:
    • Accused who plead guilty do not understand the social and economic consequences of carrying a criminal record, e.g., job prospects, deportation, entering foreign countries, entering military service, driving prohibitions.
    • Accused may plead guilty – even when they have a legal defence – because they are ashamed or embarrassed and want to minimize the shame and publicity.
    • Key informants often related incidents in which accused plead guilty because they could not live with their bail restrictions or afford the time for numerous court appearances and a trial – because of the impact on their ability to fulfill family responsibilities (e.g., obligations to take their children to school) or on their ability to retain jobs.
    • At the same time, it was reported that accused often go through the criminal justice process to disposition and sentencing without understanding what is happening to them (for instance, accused agreeing to – or at least not arguing against – bail or sentencing conditions without understanding their legal and/or socio-economic impact).

Findings: Impacts on the Courts and on Court Officers

The justice system is based on the principle that the accused should have a fair hearing. Where the accused does not have legal representation the following may occur:

  • Judges and other officers of the court must “bend over backwards” to avoid improper situations, and compensate for the accused’s lack of counsel.
  • Contrary to expectations, in most sites, individual appearances in non-trial courtrooms by unrepresented accused are typically shorter in duration than appearances involving duty counsel or private counsel.
  • Contrary to expectations, in most courts, unrepresented accused typically make fewer, rather than more appearances than accused with legal representation.
  • Cases involving unrepresented accused typically take less time overall to resolve than do cases involving private counsel, but more time than cases assisted by duty counsel.
  • Most key informants believed that trials of unrepresented accused take much longer than other trials, and are stressful on all court parties.
  • Court administrative personnel report significant numbers of requests for information and advice from unrepresented accused.

Solutions Frequently Suggested by Key Informants

The main report lists a large number of solutions offered by those interviewed.  A few examples follow:

Enhancements to the Eligibility Guidelines for Legal Aid

  • Relaxation of financial eligibility criteria to assist more of the working poor.
  • Relaxation of coverage provisions, particularly to provide service for first-time offenders, to prevent people acquiring a criminal record.

Enhancements to the Role of Duty Counsel

  • An expansion of the availability of duty counsel.
  • Access to duty counsel, with no consideration of financial eligibility, for all accused, both in-custody and out-of-custody.
  • Use of expanded duty counsel, whereby the duty counsel lawyer retains clients from first appearance to disposition, within the limits of workload.
  • Legal aid offices or “advice duty counsel” in court buildings, to provide “information, advice, and assistance” to accused.

Enhancing Resources Available to Legal Aid

  • Increased funding for legal aid.
  • Increasing the tariff provided to private lawyers accepting legal aid work.
  • Use of paralegals to assist legal aid staff lawyers and duty counsel, by arranging sureties for bail, researching diversion or sentencing options, etc.

Improving Awareness of, and Application Procedures for, Legal Aid Services

  • Information and advice regarding legal aid should be provided to unrepresented accused at the earliest possible opportunity. Methods should recognise the significant literacy handicaps of many accused.
  • Provision of legal aid application officers in the court to speed up matters being stood down pending the assignment of legal counsel, among other things.

Enhancement and Better Co-ordination with Other Court Services and Functions

  • In sites with Native Court Workers, a better co-ordination of services offered by duty counsel and Native Court Workers.
  • Improved access to disclosure.
  • Better court case and case-flow management procedures that would, inter alia, emphasize earlier resolution of cases and reduce the number of “unproductive” court appearances.
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