Court Site Study of Adult Unrepresented Accused in the Provincial Criminal Courts (Part 2: Site Reports)
The Department of Justice and the Federal-Provincial-Territorial Permanent Working Group on Legal Aid engaged the research team to measure:
- The frequency with which accused persons are appearing before the court without representation – at different stages of the court process.
- The impacts of self-represented accused – on themselves, on other groups involved in the court process, and on the courts in total.
The methodology for the Sherbrooke part of the national study followed a strategy for data collection and site visits similar to that followed in the other sites.
The methodology involved data collection and site visits. Information was available on the question of unrepresented accused from three sources:
- A Disposed Cases sample, created for the project, containing a total of 397 adult criminal cases disposed in The Sherbrooke court in late 2001.
- Direct Observation of 157 appearances in first appearance/arraignment court over six days during June and July of 2002; trial courts were rarely observed..
- Interviews with key informants (judges, Crowns, legal aid staff and management, court administrators, private bar members, local service agencies, etc.), whose anonymity was assured.
In all parts of the project, we received excellent co-operation and assistance from all those we asked to participate in the study. We also readily acknowledge the very able assistance and expertise of the Sherbrooke-based individuals who assisted in observing in court and in creating the Disposed Cases file.
One of the major conclusions – supported from data from all sites – was that data on the extent of legal representation in a particular court cannot be interpreted out of the context of (at least):
- The type of community served (including the nature of accused persons brought before the court).
- The resources and management and operations practices in place in the courts.
- Legal aid policies and practices.
- The duty counsel system in place.
- The policies and practices of all of the other key participants in the court process – including the judiciary, the police, the Crown attorneys, court administrators, the private bar and other supporting agencies.
All of these factors, policies and practices can have significant mitigating or exacerbating influences on the impacts of self-representation. This contextual information is thus essential to understanding the problems and potential solutions to challenges related to the unrepresented accused.
This section will specifically address the first four of the above areas. Information on the fifth is contained throughout the report.
Sherbrooke is located just 30 minutes from the U.S. border in the historic Eastern Townships region of Quebec. Major industries have included farming, fishing, lumber and mining. The population density is 1,305.5 per square kilometre. Sherbrooke boasts a rate of bilingualism (40 percent) that is one of the highest in Quebec.
The 2001 Census reported that close to 94 percent of people in Sherbrooke spoke French at home. English was the choice of just under 3 percent. In the Sherbooke Census Metropolitan Area (CMA), 91.7 percent cited French and 5.5 percent cited English as the language spoken at home.
In 2001, the population of the city of Sherbrooke was reported to be 75,916, 1.1 percent below the 76,786 reported in the 1996 Census. The population of the Sherbooke CMA was estimated to be 155,790, an increase of 3.8 percent from 1996, slightly more than the increase for the province of Quebec as a whole during that period (2.35 percent).
The population of Sherbrooke included a comparatively high proportion of females over the age of 65 (17 percent). Approximately 22 percent of males and 20 percent of females in Sherbrooke were in the 15-to-29 age range associated with the highest rates of crime.
The average income of Sherbrooke residents in 2001 was $20,931, somewhat less than the provincial average income of $23,198. The average household income in the Sherbooke CMA in 2001 was $36,700, and the average income per capita was $18,100. These were lower than the provincial estimates of $46,900 and $19,300 respectively.
Sherbrooke's 2001 unemployment rate of 7.8 percent was slightly lower than the provincial rate of 8.2 percent. Of Sherbrooke's population 25 years of age and older, 20.5 percent had less than a Grade 9 education, and 66.4 percent had a high school certificate or higher level of education.
In the city of Sherbrooke, there were estimated to be 4,614 single-parent families (22 percent), higher than the provincial average of 16 percent.
Of the estimated 38,481 dwellings in Sherbrooke in 2001, 13,689 were owner-occupied and 24,792 (64 percent) were rented. This was a considerably higher percentage of rented dwellings than for the province as a whole (43 percent rented) in the same year.
The rate of violent crime in Sherbrooke increased by 10 percent from 1999 to 2000, to 438 per 100,000 population. The property crime rate also increased slightly (0.8 percent) to 3,927 per 100,000. Total Criminal Code offences for the city of Sherbrooke remained at the same rate of 5,829 per 100,000. The total number of crimes reported in 2000 in Sherbrooke was 8,913.
Sherbrooke has a consolidated courthouse that handles civil, criminal and family matters as well as Supreme court matters. The courtrooms hearing criminal matters are described in the following chart. Four courtrooms are usually required for criminal cases. The backlog faced by the court for accused who are not incarcerated is approximately 10 months. There is no backlog for individuals who are incarcerated.
|One arraignment/first appearance courtroom||Usually sits five days a week, 9:30 to 4:30 (at the discretion of the presiding judge)||Courtrooms handle adult cases only Do not split drugs and CCC|
|Two trial courts||Usually sit five days a week, 9:30 to 4:30 (at the discretion of the presiding judge)|
|One Superior court – criminal matters||Sits at the discretion of the presiding judge.|
|No special courts|
There are no circuit courts which operating from the Sherbrooke courthouse. Two separate courts are devoted to juvenile cases.
Legal aid in Quebec is the responsibility of La Commission des services juridiques. The Commission oversees legal aid in Quebec through regional Legal Aid centres. Accused are able to get advice through a 24-hour Brydges help-line. This help-line is staffed by lawyers who review the case with the accused and provide advice. We noted that the ability of the lawyers to provide detailed advice is limited, because they do not have access to the accused's file and so must accept the accused's interpretation in forming their assessment of the merits of the case. This help-line is available to all accused at arrest.
Legal aid in Quebec is provided through a mixed system of certificates (mandates) and permanent staff lawyers who are contracted to provide legal aid services. In Sherbrooke, legal aid services are the responsibility of a single law firm, comprising a number of lawyers. It oversees the entire process for the region, including the application process. Those in need of legal aid present themselves to the law firm, where they make their application. If they are eligible, accused are immediately granted a certificate/mandate for legal aid. Thus, members of the "franchised" law firm (the "permanent lawyers") will take and process the accused's legal aid application, issue a certificate/mandate and offer their own services under the certificate, or allow the accused to select a lawyer from another firm to accept the certificate work. Clients thus have some choice in who represents them.Interviewees said there were noindications that eligible individuals had difficulty finding legal representation.
Eligibility is based on financial criteria and whether there is a risk of imprisonment or loss of means of employment on conviction. Those who are deemed financially able are required to make a contribution to the cost their legal defense. Legal Aid reform, completed in 1999, has resulted in most clients being required to contribute, and in tighter eligibility criteria. At present, for example, legal aid is free to those whose family income is below $17,500 (for a family with two or more children). Those who earn more than $24,938 (for a family with two children) are not eligible for legal aid.
Rates paid to lawyers for legal aid work are based on block fees, so there are no hourly rates and it is generally not in the interest of the lawyers to prolong the case any longer than necessary.
Duty Counsel is not a position – or, except to a very limited extent, a function – that exists in Sherbrooke or the rest ofQuebec. However, the "permanent" lawyers spend much of their time at the courthouse, and it is in their interest to be visible and available to accused prior to, or at their first appearance, since this allows them access to likely Legal Aid clients. Therefore, these lawyers may, on occasion, provide advice to accused and/or explain their procedural options to them at, or prior to their first appearance, even though the accused has yet to apply for Legal Aid. The "permanent" lawyers will not go so far as to give plea advice, assist with bail hearings or sureties, or help to enter a plea, since they cannot represent clients who are not eligible for Legal Aid beyond first appearance, except under exceptional circumstances. On very rare occasions, the "permanent" lawyers may represent the accused beyond the first appearance at the request of the presiding judge.
Overall, there was agreement among interviewees that the number of unrepresented adult accused was very small in Sherbrooke and did not present a problem from the perspective of the functioning of the court. Estimates of the proportion of accused who were unrepresented at first appearance generally ranged between 5 and 10 percent.
We were informed that there was a general sense of moral obligation among the legal profession in Sherbrooke to help an accused, even if they might not be eligible for legal aid or may not pay the bill in the end. Lawyers appeared willing to risk not being paid rather than leave an accused to his or her own devices – particularly if the lawyers were asked for help by the accused. However, the "permanent" lawyers were not supposed to represent accused who were not eligible for legal aid.
In general, interviewees believed that the number of unrepresented accused decreased sharply after the first appearance. There was a sense that, after the first appearance, the accused more fully comprehended the implications of the charges against them, and so realized that they were unable to manage their own legal proceedings. One interviewee believed that accused were unrepresented at their first appearance, they were likely to continue to be unrepresented through the legal process.
It was apparent from the Disposed Cases file that it was not possible to characterize representation over the life of a case in any simple manner. An accused's representation status could change from one appearance to the next, as for example when an accused was represented by duty counsel at the bail hearing, but self-represented afterwards.
Looking at the pattern of representation over all appearances, our analysis of data from complete records of 397 randomly selected cases completed in the Sherbrooke court in late 2001 indicated the following.
- At first appearance, 9.1 percent of criminally accused adults in the Sherbrooke court were unrepresented. The remaining 90.9 percent used the services of private counsel.
- At second appearance (if any), 2.2 percent of criminally accused adults in the Sherbrooke court were unrepresented. The remaining 97.8 percent have private counsel.
- At third appearance (if any), 0.8 percent of criminally accused adults in the Sherbrooke court were unrepresented. The remaining 99.2 percent used the services of private counsel.
- At final appearance, 6.1. percent of criminally accused adults in the Sherbrooke court were unrepresented. The remaining 93.9 percent had private counsel.
- Private counsel represented 94.2 percent of criminally accused adults in the Sherbrooke court for at least one appearance.
- Private counsel represented 89.9 percent of criminally accused adults in the Sherbrooke court for all of their appearances.
- Only 5.8 percent of criminally accused adults in the Sherbrooke court were unrepresented at all of their appearances.
Readers should note that, throughout this report, references to "private counsel" encompass both privately retained counsel and private counsel paid through a legal aid referral or certificate. For the purposes of this study, we were not able to make this distinction in our collection or analysis of either the disposed cases data or the court observation data.
According to most interviewees, unrepresented accused were most often found at first appearance. In most cases, unrepresented accused who have willingly presented themselves in court without representation quickly realized the seriousness or the implications of their situation and decided it best to have representation at their next appearance. The general view of our key informants was that the few unrepresented accused who presented themselves without representation at subsequent appearances fell into two categories: those who had applied for and been refused legal aid, and those who were difficult clients who couldn't keep a lawyer.
There was general agreement that those facing serious charges were likely to have a lawyer, even if they were not eligible for legal aid. Any accused facing serious charges, who presented themselves at court without a lawyer, would be strongly encouraged by the judge to get a lawyer. We noted this was, for the most part, a hypothesis on the part of interviewees. They agreed that there were very few instances of unrepresented accused at the Sherbrooke courthouse.
For the most part, these views were supported by our analysis of the Disposed Cases sample. The Disposed Cases sample indicated the proportions of accused at each appearance who were unrepresented. Figure S-1 displays this information according to the offence category of the most serious charge in the case.
|Most Serious Charge Category||Proportion of Unrepresented Accused at||Total Number of Cases|
|First (%)||Plea (%)||Defence Election (%)||Final(%)|
|Assaults excl. Common||6||2||7||0||47|
|Break and Enter||2||0||2||2||50|
|Drugs excl. Simple Possession||0||0||0||0||24|
|Thefts and Frauds||12||5||6||5||67|
|Simple Possession of Drugs||10||7||10||7||29|
|Offences against Administration of Justice||5||1||4||3||87|
- * Excludes cases for which representation was unspecified in the file.
- *** The cell contains too few cases to report a percentage.
Figure S-1 indicates that:
- Accused facing charges of impaired driving were most likely to be self-represented.
- Rates of self-representation generally declined across appearances.
In general, our key informants expressed the view that those who were unrepresented after their first appearance fell into two categories: those who were ineligible for legal aid, and those who, due to personal conflict, could not stay with the same legal representation. Those who did not qualify for legal aid were, generally, the "working poor" – those above the financial cut-off point for legal aid in Quebec ($24,938 for a couple with two or more children). Even for those barely eligible, paying the required $800 contribution was often a difficult financial barrier (according to some interviewees).
Those who were unrepresented after their first appearance because of their inability to maintain legal representation may be what some interviewees described as individuals who had "borderline mental illness." In other words, they were unlikely to suffer from a diagnosed mental disorder, were often quite intelligent, but had difficulty in their relationships with others.
Figure S-2 displays the representation provided by counsel of various types at each stage of the criminal process. These data indicate that:
- The proportions of self-represented accused were low at all appearances.
- Rates of self-representation generally declined across appearances.
|Appearance||Represented by||Number of Cases|
|Self (%)||Private Counsel (%)|
Figure S-3 shows the most serious offence charged in cases with different types of representation at the final appearance. These data indicate that:
- The only offence category for which a large number of accused were without legal counsel was impaired driving.
|Most Serious Charge Category||Proportion of Cases represented by||Number of Cases|
|Self %||Private Counsel %|
|Assaults excl. Common||0||100||47|
|Break and Enter||2||98||49|
|Drugs excl. Simple Possession||0||100||24|
|Thefts and Frauds||5||96||67|
|Simple Possession of Drugs||7||93||29|
|Offences against Administration of Justice||3||97||87|
* Excludes cases for which representation at final appearance was unspecified in the file.
 See Appendix A for a listing of the offences contained in each of the "offence categories".
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