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

6. Solutions Suggested

6. Solutions Suggested

A wide variety of solutions were offered to address the problems associated with unrepresented accused in the nine study sites. Many of them enjoyed something of a consensus among key informants, especially at sites where there were perceived to be significant numbers of unrepresented and under-represented accused.  It is probably fair to say that there was no disagreement that, in an ideal world, all criminal defendants would be represented by counsel.  Even thinking within more practical and realistic boundaries, virtually all key informants wished to see more accused persons with representation.  This was supported not just for the benefit of the accused, but because representation for accused makes the entire court system function more effectively and efficiently.  In the words of a Crown in a Maritime province, “Lack of representation is an expensive option.”

The following were the Solutions Suggested.  No attempt has been made to edit or comment on them.  Not all were suggested or agreed to by all, and certain suggestions obviously do not apply to certain sites. However, as just noted, the basic notion of expansion of the availability of counsel was an ideal held by virtually all.

6.1 Legal Aid Eligibility Criteria

The following suggestions were offered with respect to the legal aid eligibility criteria:

  • Relaxation of the financial eligibility criteria to assist more of the “working poor.”
  • A contribution system (where none was available) to help defray the cost of private counsel or to make more accused eligible.
  • Relaxation of the “likelihood of jail” criterion for legal aid, in favour of a more flexible criterion regarding seriousness, such as to include:
    • all first offenders –  to prevent more of them than necessary from acquiring a criminal record, which “can be devastating”
    • all accused who are charged with an indictable offence
    • all accused who state that they are not guilty of the charges
    • all accused who have a viable defence
    • all accused who have a mental impairment
    • all cases where there is the possibility of jail
    • all cases where there is the possibility of loss of livelihood
    • all cases where there is the possibility of significant prohibitions, such as driving prohibitions

6.2 Duty Counsel

The following suggestions were offered with respect to duty counsel:

  • Expansion of the duty counsel system to remove the various structural limitations found in various sites, e.g., where duty counsel is available only to those in custody, or only at first appearance, or where duty counsel cannot review disclosures for those out of custody, or are only available on weekdays, etc.
  • Removal of financial eligibility and coverage limitations on the provision of duty counsel services (where applicable).
  • Offering “extended duty counsel,” wherein the same lawyer takes the case from start to finish (continuity), without the application of eligibility tests (except perhaps for trial).
  • Having present in the courtroom a lawyer who would be available to give timely advice to unrepresented accused while the case is held down for a few minutes.
  • Introducing “advice duty counsel” – a lawyer who is available in the courthouse, but not burdened with significant courtroom duties, to ensure that all accused have information about the process, and informed advice as to, e.g., the likely consequences (including penalty) upon conviction for the offence.
  • Expansion of the scope of duty counsel to include conducting trials.
  • Better telephone and in-person access for duty counsel and other lawyers to those accused in custody.
  • Use of paralegals or administrative support staff to assist duty counsel by providing supports to accused in filling out legal aid applications in the courthouse, arranging sureties for bail, etc.
  • Acceptance of duty counsel as an essential and integral part of the system, and treatment of the function and the lawyers who perform it accordingly. This would require:
    • Generally, practices that reflect the DC function as a valued career track, and demonstrate that lawyers who perform the DC function well are welcome to remain in the position for long periods, the better to improve their skills and experience.
    • The use of staff positions instead of fixed-term contractsfor DC work.
    • Compensation levels that are on a par with Crowns, and which will attract and keep senior, top-notch, experienced lawyers who are suited to the unique demands and critical importance of the job.
    • Salary increments that recognize years of experience in the position.

6.3 Other Aspects Principally Related to Staff Lawyer Systems

The following suggestions were offered with respect to staff lawyer systems:

  • Expansion in legal aid resources in order to increase the numbers of staff lawyers; to reduce waiting periods for the application and service delivery processes; to give staff lawyers more time for each case; and to resolve cases earlier, thereby reducing backlogs.
  • Stronger quality control and mentoring over legal aid work and more effective caseload management for legal aid.
  • Higher salaries for legal aid staff lawyers, in order to attract and retain the best candidates.

6.4 Tariffs for Certificate Service by the Private Bar

The following suggestions were offered with respect to judicare tariffs:

  • Increase the legal aid tariff levels (called by a legal aid official in one Maritime province, “more of an honorarium for public service”).
  • Introduce incentives for early resolution into the tariff.

6.5 Court Case Management

The following suggestions were offered with respect to court case management:

  • Introduce better court case and case-flow management procedures, including agreement by all upon the following:
    • The principle of early resolution of matters whenever possible.
    • Requiring Crowns to familiarize themselves with the case early in the process.
    • Requiring Crowns to indicate in advance the cases for which prison time will be sought upon conviction.
    • Requiring Crowns to present their best offer in the case at the first opportunity.
    • (For some key informants) requiring the same judge to stay with a case after first appearance.

6.6 Information, Advice and Support to Accused

The following suggestions were offered with respect to information, advice and support to accused:

  • Have a legal aid office in the courthouse to take applications.
  • Ensure that all accused have informed advice as to the likely consequences (including penalty) upon conviction for the offence.
  • Ensure that police and Crown policies and procedures provide for full and timely disclosure to the defence counsel and/or unrepresented accused.
  • Expand public legal education programs aimed at informing persons facing criminal charges, as well as the general public, about legal aid and the consequences of convictions.  (It should be noted that many key informants cautioned that such programs are no substitute for one-on-one legal advice and representation in a criminal case.)

6.7 General

  • Expansion of diversion opportunities.
  • More networking between duty counsel and community organizations, which can assist in formulating a plan for managing the accused in the community.
  • More vigorous screening (triage) of cases for legal aid in order to determine which cases require a defence.
  • Placing a legal aid application officer in the court in order to allow the matter to be held down and returned with a set date the same day.
  • Use of paralegals or administrative support staff to assist legal aid staff with providing supports to accused in filling out legal aid applications in the courthouse, arranging sureties for bail, etc.
  • Use of “opinion letters” about whether there is an arguable defence, and granting legal aid if there is.
  • Better integrationof the work of legal aid staff and Native Court Workers.
  • Easier (e.g., more legible, electronic) access to disclosure for defence lawyers.
  • Education for judges on how to deal with unrepresented accused.
  • Encouraging judges to show less tolerance for deliberate efforts to delay the process by “trifling with” the legal aid approval process.

6.8 In Conclusion

One overall conclusion that is clear from these suggestions – and from the findings reported throughout this report – is that identifying solutions and implementing them is best done in a systems/holistic approach – one that explores the potential influence of all court participants at all stages of the process. The development of solutions therefore requires a co-operative effort involving all key participants – including the judiciary, Crown Attorneys, legal aid, court administration, the criminal bar, law enforcement officers, and others playing a significant role in cases proceeding through the courts.

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