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

Chapter 2: Regina (continued)

2.3 Frequency of accused appearing without representation

2.3.1 Self-representation over the life of the case

Given the general perception that not having representation has significant implications for the accused, it is important to understand how frequently self-represented accused appear at different stages of the court process.

It is apparent from the Disposed Cases file that it is not possible to characterize representation over the life of a case in any simple manner. An accused's representation status will often change from one appearance to the next, as, for example, when an accused may be represented by duty counsel at the bail hearing, but be self-represented afterwards – and represented by privately retained counsel later.[8]

Looking at the pattern of representation over all appearances:

  • The Disposed Cases file demonstrated various combinations of representation by self, Legal Aid, private or appointed counsel for the appearances made in all but 3.4 percent of the cases. [9]
  • n 46 percent of the cases, there was no information on representation for at least one of the appearances in the case.
  • In 6.3 percent of the cases, complete information on representation was found for all appearances and, at all of those appearances, the accused was self-represented.
  • In another 6.6 percent of the cases, the file indicated self-representation at some appearances, but information was missing on the others.
  • In another 36.3 percent of the cases, the file indicated a mix of self-representation at some appearances and representation by counsel of some sort on the others.

Therefore, the Disposed Cases file indicates that the accused was unrepresented on at least one appearance in at least 49.2 percent of the cases, and possibly up to 52.6 percent of the cases (if one counts all of the 3.4 percent for which no representation information was available at all as containing at least one unrepresented appearance).

Independent support for this conclusion also comes from analysis of the separate Court Observation data. For the 300 appearances observed:

  • 51 percent involved an accused who was unrepresented (although almost half of these appearances resulted simply in an adjournment);
  • 31 percent involved a private bar member;
  • 11 percent involved legal aid; and
  • 8 percent involved either an agent, a Native Courtworker, a clinic worker, or someone whose affiliation could not be discerned.

2.3.2 Self-representation by category of offence

During the site visit, interviewees suggested that, because of the coverage criterion (likelihood of imprisonment), the criminal charges most likely to be faced by unrepresented accused were minor property offences (shoplifting, theft of minor services, etc.), minor assaults (except where a long prior record would lead to a likelihood of jail and, therefore, representation), and offences related to alcohol or drug abuse (impaired driving, public disturbances, etc.).

Figure R-3 uses the Disposed Cases sample to present estimates of the proportions of accused who were unrepresented, according to the offence category of the most serious charge in the case.

Figure R-3. Proportion of Accused who were Unrepresented At Various Appearances, by Most Serious Charge Category, Regina*
Most Serious Charge Category Proportion of Unrepresented Accused at Total Number of Cases (all accused)
First (%) Bail (%) Plea (%) Defence Election (%) Final (%)
Homicide 19 75 0 0 0 21
Sexual Assault 46 45 3 5 4 115
Assaults excl. Common 59 71 14 3 14 1291
Robbery 58 59 4 8 6 166
Break and Enter 63 75 6 12 10 621
Impaired Driving 57 75 35 11 32 1084
Common Assault 61 77 24 6 23 906
Drugs excl. Simple Possession 41 45 9 11 11 126
Weapons Offences 56 57 20 6 16 133
Thefts and Frauds 63 71 22 14 20 2232
Simple Possession of Drugs 68 73 34 *** 33 134
Offences against Administration of Justice 67 75 23 8 23 2549
Public Order 39 76 25 *** 26 256
Miscellaneous Criminal Code 64 78 37 7 34 316
Other Federal Statutes 58 54 17 *** 14 321
Proportion of unrepresented accused at this appearance 61 72 22 9 21

Notes

  • * Excludes cases for which representation was unspecified in the file.
  • *** The cell contains too few cases to report a percentage.

The Disposed Cases data largely bear out the perceptions of key informants – it was the offences with a lower probability of imprisonment on conviction (impaired driving, drug possession, public order offences, and miscellaneous criminal offences) that showed the highest rates of unrepresented accused at plea and final appearance. It was the most serious offences – homicide, sexual offences, robbery, break and enter, and drug offences other than simple possession – that had the lowest rates of unrepresented accused at plea and final appearance.

However, there is little variance seen in the rates of unrepresented accused at first appearance and bail, and perhaps surprisingly high rates of unrepresented accused for the most serious offences at these stages.

2.3.3 Self-representation by stage in the process

Many (but again, not all) of those interviewed indicated that representation was important not only at the trial stage. A few suggested trial was the most important, and most suggested sentencing was very important.

However, most interviewees suggested the earlier stages – initially at arrest, after charging, pre-trial release, and at plea – were the most important. Many cited the evidence and simple logic that strongly suggested that decisions made from the point of arrest and charging had significant impacts on the outcome of a case. For some decisions (e.g., bail and plea negotiations) the impact was indirect. For other decisions (e.g., plea) the impact was very direct.

It was interesting that many interviewees found themselves unable to venture an estimate of the proportions of unrepresented accused at various stages in the process, and those who did differed widely:

  • At first appearance: Estimates of unrepresented accused varied from 40 to 90 percent. Most interviewees agreed that a majority of accused who were not in custody made their first – and often subsequent – court appearances without counsel.
  • At bail: Interviewees noted that duty counsel was available at the bail stage for those in custody, but a few ventured that 20 to 50 percent did not avail themselves of duty counsel.[10]
  • At plea: Estimates of unrepresented accused varied from 20 to 60 percent
  • At trial: Estimates of unrepresented accused varied from 20 to over 60 percent

Figure R-3 shows that it was, in fact, at the earlier stages of first appearance and bail that accused were most likely to be unrepresented:

  • Overall, over half of the accused had no representation at the first appearance and nearly three quarters had no representation at the appearance at which bail was first considered.
  • The likelihood of representation (including legal aid and private counsel) increased dramatically at appearances at which a plea or election occurs – and at final appearance.
  • This pattern is observed for each of the offence categories considered in Figure R-3.

These results contrast with the earlier reporting that most interviewees felt that it was at these earlier stages in the criminal process that the accused required counsel.

2.3.4 Socio-demographic characteristics of unrepresented accused

Unfortunately, empirical data is not collected or available to allow us to get a better understanding of the characteristics of accused who are self-represented. However, most interviewees suggested that, because so many accused did not get representation, unrepresented accused essentially reflected the overall profile of the Provincial Court's criminal caseload – mostly male, Aboriginal, the working poor or unemployed, often with low or very low literacy levels (one interviewee suggested perhaps half of all accused were effectively illiterate; another estimated average reading levels at Grade 4 or 5), and with disordered lifestyles. Some interviewees speculated that such persons would be, variously:

  • people who did not wish to disclose their finances;
  • people who did not wish to pay for their own lawyer but wished to go to trial;
  • people who wished to represent themselves, out of lack of trust in the criminal justice system generally;
  • people who wished to use their case in order to advocate a cause, such as Aboriginal hunting rights;
  • people who wanted to appear in their own defence; and
  • people who raised so many barriers to obtaining legal aid help that they were refused.

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