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

4. Findings - prevalence of legal representation

4. Findings - prevalence of legal representation

4.1 Likelihood of an Accused Having Legal Representation

Figure 4.1 summarizes a number of indicators of the prevalence of various types of legal representation across the nine sites.  Examination of Figure 4.1 reveals the following ranges of findings across sites:

The proportion of accused unrepresented:

  • at first appearance ranges… from a low of 5% to a high of 61%… above 36% in 4 courts;
  • at second appearance ranges… from a low of 2% to a high of 38%… above 30% in 4 courts;
  • at third appearance ranges… from a low of 1% to a high of 32%… above 19% in 4 courts;
  • at their bail appearance ranges… from a low of 3% to a high of 72%… above 12% in 4 courts;
  • at plea ranges … from a low of 6% to a high of 41%… above 18% in 4 courts;
  • at their final appearance range… from a low of 6% to a high of 46% … above 23% in 4 courts;
  • at at least one appearance ranges… from a low of 10% to a high of 63%… above 52% in 4 courts;
  • at all appearances ranges… from a low of 1% to a high of 37%… above 11% in 4 courts.

The proportion of accused represented by duty counsel:

  • at all appearances ranges… from a low of 2% to a high of 16%… above  5% in 4 courts.

The proportion of accused represented by private counsel:

  • at all appearances ranges … from a low of 10% to a high of 90%… above 12% in 4 courts;
  • for at least one appearance ranges from a low of 38% to a high of 94%… above 45% in 4 courts.

On the basis of these data, we conclude that:

  • There is wide varianceacross the sites in the proportions of unrepresented accused.
  • There are significant numbers of unrepresented accused at key stages (especially early stages) in many of the courts studied.
  • On the other hand, for some courts in the study (e.g., Brandon, Toronto and Sherbrooke), one is considerably less likely to find unrepresented accused during the early stages of the court process.

(Readers are reminded that, throughout this report, references to ‘private counsel’ encompass both privately retained counsel and private counsel paid through a legal aid referral or certificate.)

Figure 4.1 Prevalence of Legal RepresentationDisposed Cases: Percentage with Specific Types of Representation at different Times and Stages of the Court Process  by Site

4.2 Lynchpin Role of Duty Counsel

Increasingly, legal aid systems across Canada are relying on duty counsel to assist accused in the criminal court process, especially at early stages and prior to the appointment of other counsel.  Duty counsel is, therefore, playing an increasingly important role in the court system.  Many different approaches to duty counsel were observed at the study sites.  The remainder of this section provides an overview of these approaches in terms of organizational models and service delivery.

4.2.1 Organizational Models

Figure 4.2 provides an overview of the range of organizational models of duty counsel services in the study sites.  Clearly, across the nine sites, there is considerable variation in terms of:

  • the organizational mechanisms through which duty counsel services are offered;
  • the experience of the duty counsel staff; and
  • their rates of pay.

Figure 4.2 Duty Counsel: Organizational Models

4.2.2 Service Delivery: Scope and Strategies

Figure 4.3 next provides an overview of the range of services offered by duty counsel in the nine study sites, and to whom they are offered.  Again there is considerable variation from one site to another.

In some courts, duty counsel is available only to assist with bail hearings for those in custody, or may also assist with the occasional guilty plea and sentencing for custodial cases where the matter can be resolved quickly.  At one site, duty counsel is available only at first appearance. This is in contrast to a site like Brandon, where duty counsel is available to nearly all persons at first appearance, whether they are in or out of custody.

Duty counsel services may be organized on a courtroom basis, to catch cases as they arrive, or may be organized to ensure that the accused gets the same counsel every time he or she appears, to ensure continuity.  In the latter model (extended duty counsel), all staff lawyers are, in effect, duty counsel at pre-set times during any given court week, catching new arrivals at their first appearance during some court days, and assisting with subsequent stages in the accused’s case during other parts of the week.  The extended duty counsel model is in effect at the Brandon site, and is believed by all court parties to contribute significantly to the efficient running of the court, whose backlogs are insignificant.

Figure 4.3 Duty Counsel Functions and Restrictions

The data gathered in the course of this study included information on the extent to which duty counsel are providing assistance to otherwise unrepresented adult accused in the nine study sites. Figure 4.4 summarizes these data for selected appearances.  Examination of Figure 4.4 shows wide variance across sites in the presence of duty counsel at various stages in the criminal process.

The proportion of accused assisted by duty counsel:

  • at first appearance ranges … from a low of 17% to a high of 74%… above 31% in 4 courts;
  • at second appearance ranges … from a low of 10% to a high of 57% … above 26% in 4 courts;
  • at third appearance ranges … from a low of 6% to a high of 49% … above 18% in 4 courts;
  • at their bail appearance ranges .. from a low of 16% to a high of 89% … above 48% in 4 courts;
  • at plea ranges .. from a low of 14% to a high of 49% … above 23% in 4 courts;
  • at their final appearance ranges . from a low of 11% to a high of 50% … above 23% in 4 courts;
  • at some but not all appearance ranges from a low of 27% to a high of 70% … above 40% in 4 courts;
  • at all appearances ranges from a low of 2% to a high of 16% … above …  7% in 4 courts.

These data highlight the significant role played by duty counsel in providing legal assistance to otherwise unrepresented accused.  There are significant numbers of accused assisted by duty counsel at key stages in the court process in many of the courts studied.

Figure 4.4 Prevalence of Representation by Duty Counsel Percentage of Cases Represented by Duty Counsel at different Times and Stages of the Court Process by Site

4.3 The Question of Under-Representation

Although it was not within the original formal terms of reference for this study, we are bound professionally to report that concerns were raised by a number of those interviewed that one should look not only at whether or not an accused is represented, but also at whether or not those with representation have adequate representation – i.e., at the issue of under-representation.

To paraphrase one interviewee, “it’s not just legal advice needed, but someone who knows the ‘going rate’ for certain offences, knows which arguments will work for you (or against you!) with which judges, etc.”

4.3.1 Legal Aid Stretched Everywhere

For instance, even if the statistics show that the accused is assisted by duty counsel, it is important to note that in most courts duty counsel “is run off its feet.”  None of the courts in the study had a luxury of resources available for duty counsel.

Indicators of stretched legal aid – especially duty counsel – resources seen in many of the court sites included:

  • Duty counsel having available very limited time before court to interview accused (especially accused in custody) before the court appearance.
  • Delays in being able to obtain approval for legal aid, or appointments with legal aid lawyers after approval.
  • Cases held down in court because the duty counsel has not had time to adequately review the case with the accused (or with sureties or witnesses).
  • The limited experience of some duty counsel puts them at a distinct disadvantage when put up against more experienced Crowns.

4.3.2 Restricted Representation by Private Bar Members Under Legal Aid

Although an accused may have a counsel of record provided under legal aid, interviewees in a number of sites gave examples of indications that accused represented by private lawyers were not receiving the level of service that would be expected from a privately funded, “cash” lawyer.

Examples included:

  • Tariff systems that do not provide for sufficient hours to give “the full nine yards” to cases.  In addition, we were frequently told that it might be “ruinous” for a lawyer to take a complex case, given the limited funds available under the legal aid tariff.
  • Private lawyers funded under legal aid not representing their clients at bail appearances.
  • Private lawyers asking duty counsel (or Court Workers) to represent their clients at initial appearances.
  • Cases being stood down or remanded because lawyers were not in court.
  • In jurisdictions in which legal aid staff lawyers handle most cases, it is difficult for junior private lawyers to obtain sufficient experience in the criminal courts.
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