Legal Aid Research Series Court Side Study of Adult Unrepresented Accused in the Provincial Criminal Courts Part 1: Overview Report
Our interviews also suggested that the effects of accused being unrepresented extend to increasing the level of workloads and the stresses on and complexities of the work done by key court officers and others.
(a) Victims and Witnesses
A serious problem arises during a trial when the self-represented accused must question a witness – or worse, the alleged victim. This can be a difficult experience for many witnesses. In addition, the unrepresented accused can jeopardize his or her defence in such instances, because there is often a fine line between questioning and badgering or harassment when an inexperienced accused is trying to examine or cross-examine a person with whom he or she has a personal and tense relationship.
(b) Defence Counsel
Defence counsel of all types feel the pressure from the constant stream of accused persons requiring legal advice and representation.
Private bar. The private bar’s strong tradition of public service is reflected in pro bono work and work taken at tariff rates which are a constant source of friction. A number of those interviewed raised concerns that the current tariff rates resulted in lawyers feeling they could not provide the same level of service that would be provided to full-fee-paying clients. A particular concern was raised regarding the financial difficulties that would be incurred by a lawyer taking on very complex, serious and time-consuming cases, given the upset limits of current tariff structures.
Legal aid staff lawyers. In staff lawyer systems, many felt that staff lawyers do not have enough time – sometimes only “moments” to prepare a case. Some interviewees stated that legal aid staff were “run off their feet.” Duty counsel schedules were variously described by Crowns as “hairy,” “a frenzy,” and “nuts.” Clients were reported to experience the pressure on legal aid systems in the form of:
- delays in getting a first appointment, including lineups outside legal aid offices in the morning before offices open, and hours spent waiting;
- messages machines that are frequently full;
- messages returned days later or “too late”;
- alleged pressure to plead guilty; and
- the inevitable diminution of respect for a service which is “free.”
(c) Crown Attorneys
At stages before trial, interviewees in a number of sites indicated Crown Attorneys are put in an awkward position when unrepresented accused wish to discuss their case with Crowns. Although Crowns were not unanimous in their assessment of the magnitude of these problems, among the difficulties they noted were the following:
- A higher number of remands ordered by the judge to enable the unrepresented accused to get a lawyer (more remands than in represented cases) – with more court appearances, meaning greater workloads for all those connected with the court.
- Having to review the disclosure packet before giving it to an unrepresented accused – in order to ensure victims and witnesses are not placed in any danger.
- Being unable to agree with unrepresented accused on narrowing the issues by settling on which evidence can be stipulated.
- Attempting (where time is available) to suggest defences, Charter arguments, and arguments to be used at sentencing (although most Crowns do not do this).
- Trying to resolve a case quickly – more difficult to do when the accused has no counsel and Crown is barred from giving advice to the accused.
- Ensuring that unrepresented accused do not inadvertently reveal to the Crown something that can be used against them.
In most sites, generally, Crowns will not talk to unrepresented accused or negotiate a plea with them – they will only do so if they cannot avoid it. However, it is a personal choice of the Crown whether to talk to an unrepresented accused – and some do.
Judges, too, indicated that they are often put in the awkward position of assisting unrepresented accused, as best they can. Judges must point out possible defences, often “bend over backwards” to protect the unrepresented accused’s rights, and run the risk of leaving the impression with the victim and the police that they are “on the defendant’s side.” Judges must exercise care before accepting pleas of guilty from unrepresented accused. When in doubt, the judge will be required to refuse a guilty plea and set the matter down for trial, but at trial – and especially at sentencing – those interviewed indicated that the unrepresented accused generally do a poor job of presenting a defence.
(e) Native Court Workers
In sites in which they are present, Native Court Workers are troubled by the inadequacies they see in the system, and the eagerness of too many Aboriginal defendants to plead guilty “to get it over with.” They may advise unrepresented accused not to plead guilty if they do not “feel guilty” or if a defence seems available, but subsequently, many unrepresented accused will fail to appear at trial or just plead guilty on the day of trial.
(f) Court Administrative Personnel
Clerks at the counter, in most sites, indicated that they must handle inquiries from accused who need questions answered. Many felt that most of these are either unrepresented impaired driving cases or represented accused who may be unable to remember who their counsel is or what date they are to appear. Clerks also spend time with accused persons explaining to them the conditions of their bail and/or sentences, although duty counsel also assist in some sites.
Clerks find, from the questions asked of them by unrepresented accused, that they are often still seeking legal advice or are given conditions of bail or probation which they cannot follow, e.g., restrictions on seeing children they are partly responsible for, or curfews which affect their ability to perform or keep their job.
(g) Court Security
Sheriffs and other custodial staff at the different courthouses rarely reported security problems related to unrepresented accused.
(h) The Justice System Overall
Some of the people interviewed suggested that unrepresented accused ultimately increase the workload of the criminal justice system, not just because of the perception that they make additional appearances, causing postponements and delays, but also because unrepresented accused are more likely to be convicted, to re-appear in court, and to be sent to jail, all of which slows down and provides more work for the police, corrections and all other parts of the justice system. The quantitative data did not confirm this perception.
The data gathered for this study included several indicators of court resource use (and delay) that might be affected by the presence of self-represented accused in the courts. This section summarizes the study findings with respect to these indicators.
A common concern raised is that cases involving unrepresented accused require more time per appearance – for the court to explain matters to the accused, and for the accused to conduct elements of his or her defence. The data do not suggest that appearances by unrepresented accused take longer, at least those in the first appearance/set date/arraignment (i.e., non-trial) courts.
To create the Direct Court Observation files for each court, the court observer sat in bail, first appearance and set date courts, and captured the time taken by each case/appearance. The results speak directly to the issue of whether appearances of self-represented accused (in the appearances prior to trial) are actually longer or shorter than those of accused with other types of representation.
Figure 5.7 summarizes these data for the nine sites, broken down by the type of representation at these appearances.
Figure 5.7 Variation in Time Per Case/Appearance by Type of Representation Case Appearances Directly Observed in Non-trial Courtrooms: Median/ 75th Percentile Time (minutes) per Case/Appearance by Type of Representation at Appearance: by Site
As shown in that Figure, comparing the length of appearances for unrepresented accused with that of accused represented by private counsel:
- In five of the courts (Halifax, Scarborough, Edmonton, Halifax and Kelowna), the time per appearance was very similar for unrepresented accused and accused represented by private counsel; but
- In two of the courts (St. John’s and Sherbrooke), the time per appearance for unrepresented accused was shorter; and
- For one court only (Bathurst), the time per appearance for unrepresented accused was longer.
However, comparing the length of appearances for unrepresented accused with that of accused represented by duty counsel:
- In two of the courts, the time per appearance was very similar for unrepresented accused and accused represented by duty counsel; but
- In four of the other five courts, the time per appearance for unrepresented accused was shorter than for accused represented by duty counsel, while in one the opposite was true.
Some interviewees also expressed the concern that unrepresented accused place a heavier demand on court resources by requiring more court appearances to resolve their cases. The data gathered for this study, however, suggest that they do not,at least in comparison to cases represented by private lawyers at last appearance. The results are mixed when cases with unrepresented accused are compared to cases represented by duty counsel at the last appearance.
The disposed case data gathered for this study allowed the calculation of the total number of appearances made for individual cases. Figure 5.8 summarizes these data for the nine study sites, broken down by the type of representation at the final appearance for each case.
As shown in that Figure, in a comparison of cases with unrepresented accused and accused represented with private counsel:
- In all seven of the sites for which these data were available, self-represented accused typically made fewer appearances than cases with private counsel.
However, in a comparison of cases with unrepresented accused and accused represented by duty counsel, the results are inconclusive, since:
- In three of the seven sites for which comparable data were available (Halifax, St. John’s and Regina), self-represented accused typically made fewer appearances than accused represented by duty counsel.
- In one of the sites (Edmonton), there was little difference in number of appearances between self-represented accused and accused represented by duty counsel; and
- In three of the sites (Kelowna, Scarborough and Bathurst), self-represented accused typically made more appearances than accused represented by duty counsel.
Finally, the data collected for the study allowed us to determine whether cases involving unrepresented accused took longer to resolve. Overall, our data suggest that, in the majority of courts, cases involving unrepresented accused did require a longer elapsed time to resolve in comparison to cases represented by duty counsel, but not in comparison to cases represented by private lawyers.
The disposed case data included information on the elapsed time, in weeks, between the first appearance in a case and the final appearance (with the time counted as 0 days where only one appearance was made). Figure 5.9 summarizes these data for the nine study sites, broken down by the type of representation at the final appearance for each case.
Figure 5.9 Variation in Time to Dispose of Cases by Type of RepresentationDisposed Cases: Median/75th Percentile Time (Weeks) from 1st to Last Appearances Per Case:by Type of Representation at Last Appearance by Site
As shown in that Figure:
- In five of seven sites, cases in which the accused was unrepresented took longer to be disposed of than did cases in which the accused was represented by duty counsel (St. John’s and Regina were the exceptions).
- In seven of the eight sites for which these data were available, however, cases in which the accused was unrepresented were disposed of more quickly than cases in which the accused was represented by private counsel. The length of time was the same for the two groups in Scarborough.
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