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

Chapter 2: Regina (continued)

2.7 Overall conclusions

2.7.1 Key overall findings

Our key findings with respect to the key questions raised by the study include:

With respect to frequency of self-representation

  • There is a significant number of accused who proceed through key parts of the criminal court process without the benefit of legal representation.

With respect to impact

  • Interviews with key officials strongly suggest that the unrepresented accused (especially those with little prior experience in the court system) are less likely to be aware of the legal remedies available at key stages in the process – and are unlikely to understand many key decisions and events in the process.
  • The evidence is insufficient to conclude whether or not self-represented accused are more likely to be convicted or to receive harsher sentences.
  • A significant number of unrepresented accused suffer serious penalties or deprivations of liberty as a result of their court case.  Some 70 percent receive a criminal record, and a smaller, but still significant number (one unrepresented accused in every six) receive a custodial sentence.[18]

2.7.2 General reasons for current unrepresented accused situation.

Interviewees who were able to speculate on the subject suggested the following key reasons for the unrepresented accused situation in Regina (not all were mentioned or agreed to by all):

  • The financial eligibility and coverage restrictions on legal aid, which are applied strictly and effectively, exclude the working poor and those who are not likely to receive a jail term.
  • Resource restrictions on legal aid, which led most interviewees to suggest Legal Aid staff were either "overburdened" or "overwhelmed."  Other terms used were "swamped," "out of this world," "basic service," and "very minimal service."
  • Some factors are perceived to be related to the accused, or the interaction between the accused and the system, e.g.:
    • The lack of trust of the legal aid system as a whole among some potential clients – whether based in rumour, or experience, or perceived racism within the justice system, generally – leads some accused to "go it alone," especially at the bail stage.
    • Delays in the legal aid approval process prompt some accused to seek multiple postponements, in hopes that the case against them will deteriorate in the weeks and months before they are forced to obtain a lawyer or enter a plea.
    • Other accused react to the experience by choosing simply "to get it over with" by pleading guilty, with or without legal advice.
    • The disordered lifestyles of many potential Legal Aid clients work against their ability to make and keep appointments, or produce the documentation they need to qualify for legal aid, or work co-operatively with their counsel.

2.7.3 Solutions suggested by those interviewed in Saskatchewan

Among the solutions offered by individual interviewees were the following (not suggested by or agreed to by all):

  • Expansion of the duty counsel system. Most interviewees who spoke to the issue suggested that a more "complete" or better resourced duty counsel system was needed – to include all first appearances, to allow more time for each case, to see prisoners who are brought into custody on weekends, etc. 
  • Expansion in legal aid resources.  Some said an "enormous expansion" was needed –in order to increase the numbers of staff lawyers, reduce waiting periods for the application and service delivery processes, give staff lawyers more time for each case, and resolve cases earlier, thereby reducing backlogs
  • Expansion of legal aid resources would also reduce the pressure on duty counsel – and on other participants in the court system – to get guilty pleas to reduce workloads and backlogs.
  • More use of certificates and the private bar.  A few suggested a wholesale shift to a certificate system, while others suggested a mixed system like Manitoba's.  That was considered, by those who suggested it, to hold promise for increasing the number of cases that would be defended more vigorously; reducing the number of unwarranted guilty pleas; and expanding the number of members of the bar with experience in criminal law.
  • Relaxation of the legal aid financial eligibility criteria, to assist more of the "working poor."
  • A contribution system for helping to defray the cost of private counsel, or to make more accused eligible.
  • Broadening of the coverage criteria to assist cases that are not "jail-bound."  Some suggested legal aid should be granted to all accused who are charged with an indictable offence; who state that they are not guilty of the charges; who have a mental impairment, etc.
  • More vigorous screening (triage) of cases for legal aid in order to determine which cases require a defence.
  • Better telephone and in-person access for duty counsel and other lawyers to prisoners at the Correctional Centre.
  • Easier (e.g., more legible, electronic) access to disclosure for Legal Aid staff. Concurrent disclosure to both Crown and duty counsel was also suggested to move the case forward. 
  • Expansion of diversion opportunities.
  • Better court management procedures, including agreement by all upon the following: 
    • Requiring Crowns to familiarize themselves with the case earlier in the process and present their best offer in the case at the first opportunity.
    • Requiring the same judge to stay with a case after first appearance.
    • Emphasizing the critical importance and pivotal role of duty counsel and legal aid service at early stages, more so than at the trial stage.
  • More training for judges in how to deal with unrepresented accused.
  • Merger or, at the least, better co-ordination of the work of Legal Aid staff and Native Courtworkers.

APPENDIX A

Supporting Materials

OFFENCE CATEGORIES AND INCLUDED OFFENCES
Code Grouping Name Includes
1 Homicide Any event resulting in death – includes murder (including attempts and conspiracies to commit murder), manslaughter, infanticide, criminal negligence causing death, dangerous operation of a motor vehicle causing death, impaired driving causing death, explosive causing death, etc.
2 Sexual Offences Sexual assaults, sexual interference, sexual exploitation, incest, invitation to sexual touching, procurement of minor for sexual purpose, child pornography.
3 Assaults excluding common assault Non-sexual assaults excluding common assault: causing bodily harm, discharge firearm with intent, criminal negligence causing bodily harm, utter threats, hit and run, dangerous driving, kidnapping, abduction, forcible confinement, hostage-taking, criminal harassment, abandoning child, failure to provide necessities of life, arson, explosives.
4 Robbery Robbery, robbery with violence, robbery with weapon, extortion, forcible entry, hijacking.
5 Break and Enter Break and enter, unlawfully in dwelling-house, trespass, possess housebreaking instruments.
6 Impaired Driving Impaired driving, driving with more than 80 mg. blood-alcohol, refusing to provide breathalyzer sample.
7 Common Assault Common assault – summary offence.
8 Drugs excluding simple possession Trafficking, importing, production, sale, laundering of drug proceeds.
9 Weapons All weapons offences except s.244 (discharge firearm with intent). Includes possession of prohibited or unregistered restricted weapon or in place elsewhere than registered, concealed weapon, pointing a firearm, careless use, unsafe storage, altering a weapon, use of weapon in offence, etc.
10 Thefts and Frauds Theft, fraud, mischief, possession of stolen property, forgery, uttering forged document, taking motor vehicle without consent, counterfeiting, laundering of proceeds of crime.
11 Simple possession of drugs Possession of restricted, controlled or prohibited drugs.
12 Administration of Justice Resist arrest, failure to appear/attend, failure to comply, breach of recognizance or other court order, escape custody, obstruct justice, public mischief.
13 Public Order Cause a disturbance, bawdy house, living off avails of prostitution, soliciting, gaming, bookmaking, disorderly house, indecent act, vagrancy, common nuisance.
14 Miscellaneous Criminal Code Undifferentiated attempts, conspiracies, aiding and abetting.
15 Other Federal Statutes Other federal statutes.
16 Provincial or Municipal Laws Provincial statutes, municipal by-laws, Liquor Act, traffic (except those traffic offences in Homicide and Assault).

[18] Granted, percentages of similar magnitudes (also) apply to cases with different types of representation.  However, this does not detract from the importance of the sizeable percentages that apply to unrepresented accused.

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