Court Site Study of Adult Unrepresented Accused in the Provincial Criminal Courts (Part 2: Site Reports)

Chapter 10: Sherbrooke, Quebec (continued)

10.4 Evidence on the impacts of lack of representation

10.4.1 Perceived impacts of a lack of representation

a. Impacts on the accused

Opinions on the impacts of the lack of representation on accused were offered in the context of there being very few unrepresented accused in Sherbrooke. In general, it was felt that unrepresented accused would not be aware of all the options open to them, and the end result might not be to their benefit. However, none were able to offer specific examples, since few interviewees had much experience with unrepresented accused.

According to one interviewee, there were situations where it might be to the advantage of the accused to avoid getting representation for as long as possible – to delay the inevitable sentence.  This was suggested as being particularly true of impaired driving accused.

According to some interviewees, in many cases the unrepresented accused would "plead out," because they saw few other options. This was particularly true in cases involving relatively minor charges.

The most serious errors made by unrepresented accused, according to interviewees were:

  • Blaming the victim.
  • Making unnecessary/unsolicited admissions.
  • General ignorance of the legal system.  Not knowing, for example, that witnesses can be subpoenaed.
  • Not knowing how to argue their case.

10.4.2 Empirical impacts of a lack of representation

The preceding section described the perceptions of those interviewed regarding the impacts of accused appearing before the court without representation.  In this section we provide empirical evidence on what actually happened to unrepresented accused, using data on cases in the Disposed Cases file and from the appearances directly observed in court. 

It is, however, important to make it clear at the outset that the information is not presented to draw causal inferences, but simply to describe the events at various stages in the process.  For instance, the evidence is not presented to suggest that the lack of representation caused, for example, a higher (or lower) likelihood that an unrepresented accused would be convicted.  Rather, it simply describes whether or not, and how frequently, significant decisions were made and certain outcomes occurred with or without the presence of counsel.

a. Type of plea entered by type of representation

As noted earlier, a number of interviewees raised the issue of whether or not unrepresented accused were more likely to plead guilty – for instance, to "get it over with," or because they had neither the knowledge nor resources to contest the charges.

Figure S-4 displays the plea entered by the type of representation available to the accused. These data indicate that:

Of all pleas, 87 percent were guilty pleas.  This figure was the same for both unrepresented accused and accused  represented by private counsel

Figure S-4. Distribution of Type of Plea Entered by Type of Representation at Plea Appearance, Sherbrooke*
Plea Proportion of all Pleas by or on behalf of Accused Represented by Number of Cases Proportion of Cases
Self % Private Counsel %
Guilty 87 87 326 87%
Not guilty 13 13 48 13%
Total Cases 23 351 374 100%

Note:  * Excludes cases for which representation at plea was unspecified in the file.

b. Conviction or not by type of representation

Conviction rates were examined in terms of representation at final appearance, as shown in Figure S-5. The data suggest that:

  • Overall, 90 percent of all disposed cases resulted in a conviction on one or more charges.
  • The conviction rates were essentially the same for accused who were self-represented (92 percent) and for accused represented by private counsel (90 percent).
Figure S-5. Distribution of Disposition by Type of Representation at Final Appearance, Sherbrooke
Disposition Proportion of Dispositions for Accused Represented by Number of Cases Proportion of Cases
Self % Private Counsel %
Convicted* 92 90 353 90%
Not Convicted** 8 10 41 10%
Total Cases 24 370    

Notes

  • *  Includes guilty verdict and peace bond ordered.
  • **  Includes not guilty, withdrawn, dismissed, stayed, and discharges.

Earlier we cautioned against using these data to imply a causal connection between type of representation and conviction rates.  However, given the impact of having a criminal record (on employment opportunities and the likelihood of being charged with further offences, etc.) the data can definitely be used to show that unrepresented accused are very likely to experience serious negative impacts as a result of the court process.

c. Custodial sentence and type of representation

The proportion of accused who received custodial sentences was also examined in terms of representation at the final appearance.

Figure S-6 shows the distribution of custodial sentences for cases disposed at final appearance by type of representation. The data suggest that:

  • Overall, 38 percent of all disposed cases resulted in a custodial sentence.
  • Unrepresented accused fared better (4 percent custodial rate) than did accused with private counsel (40 percent). This may reflect the over-representation of impaired driving charges faced by unrepresented accused.
Figure S-6. Distribution of Custodial Sentence by Type of Representation at Final Appearance, Sherbrooke
Sentence Represented by Number of Cases Proportion of Cases
Self % Private Counsel %
Custodial Sentence 4 40 141 38%
No Custodial Sentence 96 60 233 62%
Total Cases 23 351 374  

Again we caution against using these data to imply a causal connection between type of representation and likelihood of receiving a custodial sentence.  However, the results are directly relevant from another important perspective. Specifically, it is accepted that eligibility for legal aid should depend (in part) on the likelihood of a case receiving a custodial sentence.  Although one cannot expect to predict with total accuracy whether a case will result in custodial sentence, it is relevant that custodial sentences were received by four percent of self-represented accused in Sherbrooke.

10.4.3 Impacts on court officers and others

According to our key informants, judges in Sherbrooke made great efforts to explain things to unrepresented accused in their courts. Judges were said to be very uncomfortable with this, because they thought they risked their appearance of impartiality.

Our court observation data confirmed that efforts were made in the courtroom to make unrepresented accused aware of the opportunities and benefits of having a lawyer. In 50 percent of appearances by unrepresented accused, comments were made, mostly by judges, concerning representation. In these appearances, the judges asked the accused about their representation status or instructed the accused to get a lawyer or apply for legal aid.  In a handful of appearances observed, the judge informed the accused that if they failed to retain counsel for the next appearance, the trial would proceed regardless.

Crowns were generally uncomfortable dealing with unrepresented accused because such cases were much more difficult to manage, direct dealing impossible, and communication problematic.

10.4.4 Overall impacts on court operations

a. General

In most provincial criminal courts in Canada, only 4-to-10 percent of cases go to trial.  The overwhelming majority of appearances for cases are therefore not trials – and, as noted elsewhere in this chapter, in Sherbrooke (as in other courts) these appearances are typically in the order of a few minutes per case.  What would, in other situations, seem a very minor increase in the time taken to perform a function at a case appearance, can therefore represent a major increase in judicial, crown, legal aid, defence counsel and court administration workloads – proportionally and in total.

Most interviewees felt that an unrepresented accused would slow down proceedings but that this would vary depending on the case and the personality of the accused. Some accused were more proactive, but most were lost and generally had little to say for themselves.

b. Nature and length of individual court appearances

The Court Observation data yielded some information about how many appearances were "productive," in the sense that they resulted in decisions on (or, at least, consideration of) one or more of three matters: namely bail, plea, and elections.  Figure S-7 shows the breakdown of courtroom events (or non-events) at interim (not final) appearances, according to representation status at last appearance.[90]

Figure S-7. Court Observation Data: Percentage Distribution of Cases: Type of Decisions Made by Representation Status At Interim (not Final) Appearances, Sherbrooke*
Representation Status Type of Decisions at Interim Appearance (Remanded or Stood Down)
**No decision Bail considered, and/or plea entered Total number of Appearances
Self 25% 75% 43 (100%)
Private lawyer 52% 48% 59 (100%)
Total 44% 56% 102 (100%)

Notes:

  • * Appearances for which data were unavailable or unclear are not included.
  • **  Bail not considered, no elections made by either Crown or defence, and no plea entered.

One of the most striking observations was that, overall, 44 percent of interim appearances did not involve consideration of bail, or the entering of a plea. If the accused was unrepresented, the proportion of interim appearances that were, in that sense, "unproductive" was only 25 percent compared to 52 percent of appearances involving legal counsel.

The court observation also yielded data on the length or duration of individual court appearances. Figure S-8 summarizes these data by representation type. The general conclusion supported by these data is that appearances by self-represented accused were much shorter in duration compared to appearances with private counsel.

Figure S-8. Distribution of Appearance Duration (in minutes) by Type of Representation at Final Appearance, Sherbrooke
  Appearance Duration (in minutes) when Represented by
Self Private Counsel
25th Percentile 1 2
Median 1 5
75th Percentile 2 10
95th Percentile 22.2 26.5
Total Appearances 45 94
c. Number of appearances per case

Most of our key informants appeared to agree that unrepresented accused slowed down the court process, since they did not benefit from the skill that an experienced lawyer would apply to move the process along expeditiously.

A direct indicator of the workloads caused by – and resources required to deal with – cases is the number of court appearances required to complete a case. A related indicator is the appearance number at which key activities take place.  The Disposed Cases sample yielded information on the number of appearances made by accused who were or were not represented. 

Appearances before a plea is entered

Figure S-9 shows the appearance number at which the plea was entered for accused who had various types of representation.  These data indicate that self-represented cases in general did not generate more appearances before entering a plea, in comparison to cases handled by private counsel:

  • Three quarters of self-represented accused entered their plea at their first appearance.
  • Only half of accused represented by private counsel had entered a plea at or before their third appearance.
Figure S-9. Distribution of Appearance Number at Which Plea was Entered By Type of Representation at Plea Appearance, Sherbrooke
Appearance Number at which Plea was Entered Represented by
Self Private Counsel
25th Percentile 1 1
Median 1 3
75th Percentile 1 6
95th Percentile 2 11
Total Cases 23 351

Note: * If plea entered at more than one appearance, last appearance at which plea entered is shown.

Total number of appearances before disposition

Figure S-10 shows the total number of appearances in the case – according to representation type at last appearance.  These data indicate that self-represented cases did not take more court appearances overall.  More specifically:

  • Three quarters of accused unrepresented at last appearance made only one appearance, as compared to accused with private counsel, 50 percent of whom made up to four appearances.
Figure S-10. Distribution of Number of Appearances in Case By Type of Representation at Final Appearance, Sherbrooke
Number of Appearances Represented by
Self Private Counsel
25th Percentile 1 2
Median 1 4
75th Percentile 1 7
95th Percentile 3.5 11.4
Maximum 4 13
Total Cases 24 372
d. Elapsed time for cases to resolve

The Disposed Cases sample also yielded information about the time elapsed between the first and last appearance.  This information is important from a due process perspective – however, that perspective yields two potential hypotheses: first, "Justice delayed is justice denied," and second, "Justice rushed is justice crushed."[91].   The first concern is relevant to those who feel that delays in obtaining legal representation adversely affect the fairness of the court process and the final outcome.  The second concern is especially relevant to those concerned that unrepresented accused may plead out the case early "to get it over with," or because they are not aware of viable legal defences.

As shown in Figure S-12:
  • Of cases in which the accused was self-represented, 50 percent were settled within 13.1 weeks, and 75 percent settled within 23.1 weeks.
  • Cases represented by private counsel at last appearance typically took longer to be resolved with 50 percent settled within 19.3 weeks and 75 percent settled within 36.9 weeks.
Figure S-12. Distribution of Time (in weeks) Between First and Final Appearance By Type of Representation at Final Appearance, Sherbrooke
  Time (in weeks) between First and Final Appearance when Represented by
Self Private Counsel
25th Percentile 6.2 4.6
Median 13.1 19.3
75th Percentile 23.1 36.9
95th Percentile - 55.8
Maximum 33 69
Total Cases 5 309

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