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

Chapter 2: Regina (continued)

2.6 Further impacts of lack of representation

2.6.1 Impacts on court officers and others

a. Legal Aid staff – and, especially, duty counsel 

Interviewees were unanimous in stating that the representation provided by Legal Aid staff was of good quality, because of the experience of staff lawyers and their dedication to the work.  However, virtually all interviewees agreed that staff lawyers did not have enough time – sometimes only "moments" – to prepare a case.  Some interviewees stated that Legal Aid staff were "run off their feet" – literally, as one service agency worker described running beside staff lawyers while discussing a case.  Duty counsel schedules were variously described by Crowns as "hairy," "a frenzy," and "nuts." 

Several interviewees suggested that Legal Aid clientele did not share the same high opinion of Legal Aid as did professionals.  Clientele had cited, to these persons, numerous complaints about service, including:

  • 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 were frequently full.
  • Messages returned days later or "too late."
  • Alleged pressure to plead guilty.
  • The inevitable diminution of respect for a service that was "free."
b. Crown attorneys

At stages before trial, a number of groups interviewed indicated Crowns would be put in an awkward position when unrepresented accused wished to discuss their case with Crowns.  Although Crowns were not unanimous in their assessment of the magnitude of the problems, among the difficulties which they noted were:

  • 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.
  • Reviewing the disclosure packet in order to ensure victims and witnesses were 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 was available) to suggest defences, Charter arguments, and arguments to be used at sentencing.
  • Trying to resolve a case quickly – more difficult to do when the accused had no counsel and Crown was barred from giving advice to the accused. 
  • Ensuring that unrepresented accused did not inadvertently reveal to the Crown something that could be used against them.
c. Judges

Judges, too, were put in the awkward position of assisting unrepresented accused as best they could.  Judges had to point out possible defences, "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 were "on the defendant's side."  Judges had to exercise care before accepting a plea of guilty.  When in doubt, the judge would 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 did a poor job of presenting a defence. 

d. Courtworkers

Native Courtworkers were troubled by the inadequacies they saw 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 did not "feel guilty," or if a defence seemed available, but, subsequently, many unrepresented accused would fail to appear at trial or just plead guilty on the day of trial.

e. Court administrative personnel

Clerks at the registrar's counter indicated that each of them handled perhaps 10-to-15 inquiries per day from accused who needed questions answered.  "Most" of these were either unrepresented impaired driving cases or represented accused who couldn't remember who their counsel was or what date they were to appear.  Clerks also spent time with accused persons explaining to them the conditions of their bail, although duty counsel also assisted in this.

f. Court security

Sheriff's staff at the courthouse reported that problems related to unrepresented accused were very rare.  Legal Aid staff normally arrived to speak to persons who were brought into custody within one or two hours of being contacted.  The bigger problem faced by security staff was with cases that were represented, where the defence lawyer did not communicate effectively with security staff as to whether, and when, the accused in custody needed to be brought into court from the court cells.

g. The justice system overall

Some of the people interviewed suggested that unrepresented accused ultimately increased the workload of the criminal justice system, not just because of additional appearances, postponements and delays – but also because unrepresented accused were more likely to be convicted, to re-appear in court, and to be sent to jail – all of which slowed down processes and provided more work for the police, corrections and all other parts of the justice system.

2.6.2 Overall impacts on court operations

a. Court workloads: Length and nature of individual appearances
Length of appearances

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 earlier, in Regina (as in other courts), these appearances are typically in the order of one or two 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.

Our Court Observation data did indicate concern that the unrepresented accused be aware of the opportunities and benefits of having a lawyer – and the expression of that concern did extend the time taken for individual court appearances.

In nearly one third (32 percent) of the appearances, a comment concerning representation was made by either the judge, the accused, the Crown, or duty counsel.  In 28 percent of the appearances, the judge asked the accused about his or her representation status or instructed the accused to get a lawyer or apply for legal aid.  If asked about his or her representation status, the accused would typically say that s/he wished to have a lawyer, or was in the midst of applying for or getting one, whereupon the judge might ask the Crown what kind of sentence would be sought in the event of a conviction.  If the Crown indicated that a jail term would not be sought, the judge might then have informed the accused that s/he was unlikely to receive legal aid for that reason.  The accused might have indicated s/he would still like to apply, and the matter was put over for six weeks to allow that process to unfold.  In three percent of appearances observed, the judge asked duty counsel to assist the accused and, in one percent, the judge asked a Native Courtworker to assist the accused.

Not all interviewees agreed that trials involving unrepresented accused took longer than those of represented persons.  Those who did not, said that unrepresented accused had no idea what questions to ask and did not think to call witnesses or present important arguments in their defence.  Virtually all seemed to agree, however, that trials with unrepresented accused were "painful," "a nightmare."

Those who believed that unrepresented accused trials took longer, suggested that unrepresented accused would, at trial, delay the proceedings by:

  • failing to understand the lengthy explanations that must be made at each stage, often winding up more confused than before the explanation;
  • refusing to make admissions of evidence that an experienced lawyer would make; and/or
  • "droning on forever."
With respect to appearances prior to trial

To create our Direct Court Observation file, the court observer sat in Courtroom 1 or 2 (non-trial 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) were longer or shorter than those with other types of representation. 

As shown in Figure R-11, in the first-appearance/docket courts – overall, using the typical or median case as the measure – there were no differences in the length of appearances, according to whether the accused was unrepresented or represented by Legal Aid staff or private counsel.  For the quarter of cases that took the longest, cases represented by duty counsel were longer, followed by self-represented cases and, then, by those represented by private counsel.  (Differences were in the order of one minute.)

An attempt was also made to differentiate between case/appearances that resulted in a remand or a final disposition.  Unfortunately, too few case/appearances were present in the database to consider the latter.  However, as shown in Figure R-11, of case/appearances that resulted in a remand, those in which the accused was self-represented and those represented by Legal Aid staff lawyers were of the same length (median time, 120 seconds), and appearances by those represented by private counsel were shorter (90 seconds).

Figure R-11. Case/Appearances: Distribution of Time (seconds) for different types of Case/Appearances by Type of Representation , Regina

Appearance Number at which Plea was Entered 25th/ median/ 75th percentile times for case/appearances represented by All Types of Represen-tation*
Self Legal Aid Staff Private Counsel
All appearances in first-appearance/ docket courts
By Result of Appearance
Appearance Number at which Plea was Entered 25th/ median/ 75th percentile times for case/appearances represented by All Types of Represen-tation*
Self Legal Aid Staff Private Counsel
Remanded or Stood Down
Final

Source:  Direct Court Observation file.

  • * Totals for all types of representation  includes agents, Courtworkers and clinics.
  • *** Less than 10 case/appearances.

Another factor that would add to the time taken by a case on a court docket would be the process of "standing down" a case to later in the day to complete consideration of any matters that day.  In fact, our court observer only rarely saw a case being stood down (only 13 in 297 case appearances).  Comparisons among cases with different types of representation would therefore be irrelevant. 

Events occurring at individual court appearances

The court observation data also 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 R-12 shows the breakdown of courtroom events (or non-events) according to representation status at last appearance.  The columns in the left half of the table show data for "interim" (i.e., non-final) appearances.  The columns in the right half of the table show data for final appearances.[15]

With respect to interim appearances, one of the most striking observations is that, overall, interim appearances in a case were most likely not to involve consideration of bail, elections, or the entering of a plea (see column 2 – "no decision") if the accused was represented by a private lawyer (90 percent), and least likely not to involve such a decision if the accused was represented by duty counsel (24 percent).[16]

Figure R-12.  Court Observation Data:  Percentage Distribution of Cases/ Appearances: by Accused's Representation Status  by Type of Decision Made and Case Status (Interim or Final Appearance), Regina

Almost half (45 percent) of the interim appearances by self-represented accused also resulted in "no decision:" (i.e., no plea, election or bail decision, or consideration for bail).  Another quarter (24 percent) resulted in a plea being entered or an election made.  In cases in which duty counsel was in assistance, only 3 percent of appearances resulted in a plea being entered or an election being made, but in another 17 percent, all three decisions were made at once (bail, election and plea), suggesting that duty counsel tended to expedite matters.

With respect to final appearances (i.e., the right-most columns in Figure R-12), the number of such appearances observed was small – only 36 in total.  No conclusions can be drawn from these scant data, but they suggest an interesting line of future inquiry regarding the value of having counsel to try to obtain a dismissal, a not guilty or other favourable verdict.

b. Workloads: Number of appearances per case

Some interviewees suggested that court schedules appeared, at earlier stages at least, to be driven by time delays built into the legal aid application, approval and access system.  Some interviewees were also of the view that there was a certain segment of the accused population who were aware of the delays inherent in the legal aid process, and who took advantage of these delays in order to obtain successive postponements of their cases.  (The reverse phenomenon was also seen – of accused who "just wanted to get it over with," and pled guilty with or without the assistance of counsel.)  Multiple postponements for accused who were unrepresented were common, as some judges postponed the proceedings in hopes the accused would obtain counsel.  Such appearances were costly for the courts and its officers.  After a number of unproductive appearances, some judges attempted to move the process forward by decreasing the length of remands to get counsel. 

Reasons for remands at early appearances

The Direct Court Observation file provided information to at least initiate an exploration of the reasons for remands – and the results showed that in one sixth of the cases (16 percent), the reasons for granting remands were related to obtaining counsel.

Appearances before a plea is entered

A second direct indicator of the workloads caused by – and resources required to deal with – self-represented cases is the appearance number at which key activities take place. Figure R-13 begins by showing the appearance number at which the plea was entered for accused who had various types of representation. 

The data suggest that self-represented accused, in general, did not generate more appearances before entering a plea:

  • There was a significant group of unrepresented accused who pled guilty early in the process. – these data suggest half the self-represented accused entered a plea at the first or second appearance, and at least one quarter entered a plea at the first appearance.  (This may be because – as suggested by interviewees – many unrepresented accused pled early "just to get it over with."  However, there may be other explanations for this phenomenon.)
  • Self-represented accused entered their plea at an earlier appearance than accused who had counsel of any type at the plea appearance.  Half the accused represented by Legal Aid or private counsel at plea did not enter a plea until the fifth appearance or later.
  • A quarter of the accused represented by Legal Aid or private counsel at plea did not enter a plea until the ninth appearance or later.
Figure R-13. Disposed Cases: Distribution of Appearance Number at Which Plea was Entered by Type of Representation at Plea Appearance, Regina
Appearance Number at which Plea was Entered Represented by All Types of Representation
Self Legal Aid Private Counsel Appointed Counsel
25th Percentile 1 3 4 3 3
Median 2 6 6 4 5
75th Percentile 5 9 9 7 8
95th Percentile 11 16 15 14 15
Total Cases 1101 2500 1142 382 5125

Notes

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

Total number of appearances before disposition

Figure R-14 shows the total number of appearances in the case – according to representation type at last appearance.  The data suggest that self-represented cases did not require more court appearances overall.  More specifically:

  • Accused self-represented at the last appearance made fewer appearances in total than did accused with representation at last appearance. 
  • Half the accused unrepresented at last appearance made only one or two appearances, as compared to five or fewer by accused represented at last appearance by Legal Aid or private counsel.
  • A small minority of cases resulted in an extraordinary number of appearances – five percent of the accused unrepresented  at last appearance appeared 10 or more times in the case, and five percent of the accused represented by Legal Aid and private counsel at last appearance made 15 or more appearances.
Figure R-14. Disposed Cases: Distribution of Number of Appearances in Case by Type of Representation at Last Appearance, Regina
Number of Appearances Represented by Total: All Types of Representation
Self Legal Aid Private Counsel Appointed Counsel
25th Percentile 1 3 3 3 3
Median 2 5 5 4 5
75th Percentile 5 9 9 7 8
95th Percentile 10 15 15 14 15
Maximum 25 41 36 32 41
Total Cases 1423 3443 1514 449 6829

Notes
Source: Disposed Cases sample.

c. 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."[17]   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 R-15:
  • As noted above, cases self-represented at last appearance made fewer appearances, and this was reflected in such cases taking less time between first and last appearance (75 percent of cases completed within 24 weeks) – as compared to cases represented at last appearance by Legal Aid  (75 percent of cases not completed until 40 weeks have elapsed).
  • Cases represented by private counsel at last appearance took more time to be resolved (75 percent of cases not completed until 46 weeks have elapsed) than did unrepresented cases, Legal Aid cases, or appointed-counsel cases.
  • A quarter of all cases took nine months or more to be resolved.
Figure R-15. Distribution of Time (in weeks) Between First and Final Appearance by Type of Representation at Final Appearance, Regina
Time (in weeks) between First and Last Appearance when Represented by All Types of Representation
Self Legal Aid Private Counsel Appointed Counsel
25th Percentile 0 4 9 3 3
Median 4 15 25 8 14
75th Percentile 24 40 46 20 37
95th Percentile 89 105 91 82 99
Maximum 412 621 454 443 621
Total Cases 1423 3443 1514 459 6829

Notes
Source: Disposed Cases sample.


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