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

Chapter 3: Halifax, Nova Scotia (continued)

3.2 Context of the court and legal aid

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 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, and especially those relating to duty counsel.
  • The policies and practices of all of the other key participants in the court process – including the judiciary, the police, the Crown attorneys, court workers, court administrative officials, 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 three of the above areas.  Information on the fourth is contained throughout the report.

3.2.1 The community

The city of Halifax was founded in the mid-18th century and, as a major eastern port, had strong military significance to Canada until after WW2.  It amalgamated with the adjacent municipalities of Dartmouth, Bedford and Halifax County in 1996.  (However, the work of the court covered by the current study is restricted to Halifax proper.)

It remains the largest and most culturally and economically diverse centre in the Maritimes. Trade and fisheries are major historical industries. In the 2001 Census, the majority of residents (94 percent) reported speaking English at home, with Arabic, French and Chinese being the next most commonly spoken.

While the population of the province of Nova Scotia decreased by 0.1 percent from 1996 to 2001, the population of the regional municipality of Halifax increased by 4.7 percent during the same period, to 359,111.  However, the population increase for the city of Halifax itself during the same period was 1.98 percent.  The population density per square kilometre was 65.4.  Approximately 21 percent of males and 20 percent of females in Halifax were aged 15-to-29, the age range associated with the highest rates of crime.

In the Halifax Census Metropolitan Area (CMA), the total estimated average household income in 2001 was $53,473 and the average income per capita was $21,329.  The average household income for the city of Halifax alone in 2001 was estimated to be $47,700, and the average income per capita was $22,300, somewhat higher than the provincial rates of $46,200 and $18,100 respectively.

The overall unemployment rate for the city of Halifax was reported in 2001 to be 7.0 percent.  This was somewhat lower than the provincial rate for that same year. The province of Nova Scotia reported an unemployment rate of 9.4 percent in 2001.

Of the population of Halifax aged 25 years and over, 7.7 percent reported having less than a Grade 9 education.  This was lower than the provincial average of 12.6 percent.  Overall, 75.6 percent of Halifax residents had a high school certificate or higher level of education, compared to 62.9 percent for the province of Nova Scotia as a whole.

The number of single-parent families in the city of Halifax was estimated to be 6,257, 20 percent of the total 31,266 families, and in the CMA the rate was 16 percent – higher than the provincial rate of 15 percent.

In the city of Halifax more privately occupied dwellings were rented (60 percent) than owner-occupied, while the reverse was true of Halifax CMA (39 percent rented). The provincial rate was 29 percent rented.

The rate of violent crime in Halifax increased in 2000 from the previous year by 12 percent.  In 2000, the violent crime rate was 1,164 per 100,000 population.  However, the property crime rate for Halifax decreased by 6.7 percent from 1999 to 2000.  The property crime rate for 2000 was 5,402 per 100,000 population.  The crime rate for all Criminal Code offences decreased in 2000 by 3.7 percent to a rate of 9,249 per 100,000 population.

3.2.2 The court

a. Scheduling of cases

Figure H-1 highlights the key features of the courthouse and the case scheduling practices.  In general, all cases originating in Halifax during a particular month are scheduled to the same courtroom for their first appearance and other appearances that occur prior to being set for trial in a trial court.  The "first appearance" courtroom is rotated every month, but was Courtroom 1 during the month of our data collection in Halifax.  It was in that courtroom that we directly observed court appearances of cases.

Figure H-1 Highlights of Scheduling of Cases in Halifax
One arraignment/first-appearance courtroom (Provincial Court only) Sits every day (courtroom changes every month) Courtrooms handle both adult and youth Do not split drugs and CCC, although federal Crown cases handled first
Five trial courtrooms for other criminal matters (e.g., preliminary hearings and trials) Sit every day
Special courts None
Circuit Courts None
b. Special case/case-flow management concerns

The Halifax court is facing serious backlogs.  At the time of the site visit, trials for accused who were not in custody were being double- and triple-booked ten months into the future.  The courts also insisted that Legal Aid staff lawyers double-book themselves into trial schedules.  On April 1, 2001, the court introduced a "weekend bail court" run by a justice of the peace in order to reduce the number of cases held in custody over the weekend. 

Concerns regarding self-represented accused have resulted in the establishment of a special project, the Self-Represented Litigants Project.  Through the project, members of the judiciary, the legal profession, court staff and others have been asked to join with Department of Justice staff in a focused effort to develop responses to concerns related to unrepresented accused.

c. An overview of case volumes and mix of cases

Figure H-2 provides an overview description of the numbers of cases heard in the Halifax court in a recent 12-month period.  The Figure shows that two offences – common assault (11 percent) and theft (14 percent) – made up a quarter (25 percent) of the caseload of the court.  Adding impaired driving cases (8 percent) and "other federal statutes" (17 percent) would bring the subtotal to 50 percent of the total caseload.

Figure H 2: Disposed Cases by Type of Offence (Comparison of Halifax and Nova Scotia – 2000/2001)
Halifax Nova Scotia
Most Serious Offence # as % of Halifax Total as % of NS # as % of NS Total
Total 3,163 100 21 15,313 100
Homicide 8 0 62 13 0
Attempted Murder 3 0 27 11 0
Robbery 40 1 37 107 1
Kidnapping 3 0 30 10 0
Sexual Assualt 35 1 18 200 1
Sexual Abuse 4 0 11 35 0
Major Assault 188 6 28 679 4
Abduction 0 0 0 4 0
Common Assault 362 11 18 2,012 13
Break & Enter 100 3 21 476 3
Arson 3 0 12 26 0
Fraud 107 3 19 573 4
Posses Stolen Property 136 4 30 459 3
Theft 449 14 29 1,529 10
Property Damage/Mischief 65 2 13 502 3
Weapons 51 2 18 287 2
Administration of Justice 172 5 18 933 6
Public Order Offences 39 1 12 314 2
Morals – Sexual 72 2 56 129 1
Morals – Gaming/Betting 1 0 33 3 0
Other Criminal Code 287 9 11 2,701 18
Criminal Code Traffic 31 1 14 223 1
Impaired Driving 263 8 14 1,867 12
Traffic/Import Drugs 90 3 27 335 2
Possession Drugs 114 4 17 683 4
Other Federal Statute 540 17 45 1,202 8

Source: Canadian Centre for Justice Statistics: Statistics Canada.

In total, the Halifax court represents 21 percent of the Provincial Court caseload for all of Nova Scotia.  There are also some obvious differences between the mix of cases for Halifax and for the rest of the province – with Halifax having certain offences more prominent in its caseload – in particular, those shaded in Figure H-2 (Homicide, Robbery, Morals-Sexual and Other Federal Statutes). [21]

3.2.3 Legal aid

Legal aid in Nova Scotia is overwhelmingly a service delivered by Legal Aid staff lawyers.  Figures produced by the Nova Scotia Legal Aid Commission show that out of 11,699 adult criminal matters handled by Legal Aid in 1999/2000, all but 889 were handled by staff lawyers.  The most common reason for issuing a certificate to a private bar member is conflict of interest (co-accused or victim-accused conflicts).  The Halifax Legal Aid office has seven staff lawyers, most of them relatively junior members of the bar, handling criminal matters.  Reportedly, the stressful nature of the work makes it difficult to retain staff lawyers, who gain more experience in legal aid work.  Salary levels are on a par with those of Crown attorneys with similar experience. 

Applications for legal aid are made in person, by appointment with a staff lawyer, at the offices of Legal Aid Nova Scotia, approximately a two-minute walk from the provincial courthouse.  At the time of the site visit, Legal Aid managers had just issued a directive that staff lawyers must see the accused within two-to-three weeks of arraignment.  This directive was issued in response to concern about the four-to-eight-week delays that had been plaguing the legal aid process, causing many court officers to suggest that delays in the legal aid application and delivery process had been "driving" the court schedules. 

There was the perception among some of those interviewed that the Halifax office in the past had been more flexible in applying the legal aid criteria than had the Dartmouth office.  However, as the budget has been progressively cut, this flexibility has decreased considerably.

3.2.4 Duty counsel

Knowledge of the resources, scope of activity and policies and practices of the duty counsel system is especially important to understanding the implications of self-representation on both the accused and on the costs and efficiency of the court system.

Duty counsel is available to help custody cases with pre-trial release applications, and does so without first applying financial eligibility tests or coverage criteria.  For these cases, sufficient disclosure is available immediately from the Crown to allow the bail process to be handled expeditiously.  Duty counsel normally has time to talk to most custody cases and the Crown before first appearance.  However, there is considerable variation in the time spent with each accused – for instance, there might be 30 accused in custody after a long weekend.  One of the most difficult aspects of the job of duty counsel is to allocate time among files in a manner that safeguards the rights of the accused.

Currently, Legal Aid does not supply staff lawyers to provide duty counsel/bail services to the weekend Justice of the Peace court. [22]  Through a contract with the province, a private firm also provides advice to unrepresented accused via telephone during the weekend.  However, the terms of the contract specifically exclude representation on bail hearings through the new JP bail system.   There is an attempt to give the accused some basic advice on how the weekend bail system works, but they are "basically on their own."

In contrast, the Crown Attorney's office provides counsel to assist the police and justices of the peace by phone.  Informants noted that this puts the accused at a distinct disadvantage when they face attempts by the police to have them remanded in custody for several days.  However, there has been discussion recently (i.e., after the time of our interviews) of the benefits of having Legal Aid staff duty counsel available during Saturday and Sunday morning Justice of the Peace courts – especially since a significant percentage of accused who are arrested on the weekend are released on agreement in court on Mondays.

Few accused are unwilling to wait for the day or two it will take for the duty counsel to prepare and argue for their release.  Duty counsel also gives out legal aid application forms to accused, and instructs them as to the information needed to complete an application.

If there is a complication in obtaining sureties or other questions relating to bail, duty counsel will stay with the case until the pre-trial release issue is settled.  If the case is uncomplicated and can be resolved quickly, the duty counsel may also occasionally retain the case through the plea process.  Otherwise, the accused will be required to apply for legal aid in the usual course of business, and duty counsel will cease to be the attorney of record. 

The same staff lawyer has been handling duty counsel duties for the past five years, appears to thrive on it, and there are no plans to rotate the duty.  Both clients and court officers seem to agree that the success of the duty counsel function is connected to the experience, competence and calm demeanor of the existing duty counsel, and to the trust in which he is held by court officers.  Two interviewees offered the further view that it would be "a big mistake" to rotate duty counsel duty frequently (this leads to more matters simply being adjourned), or to assign duty counsel functions to a junior lawyer.  If a junior lawyer or paralegal were assigned to assist with obtaining sureties, etc., this person would need to work under the direct one-on-one supervision of the experienced duty counsel.

3.2.5 Disclosure

As noted above, duty counsel seem to have adequate access to the Crown files pertaining to cases that are seen in the cells before court.

On the other hand, considerable difficulties were reported for the defence in obtaining disclosure in cases handled by the Halifax City Police and provincial Crown office.[23]  Halifax Police make only one copy of the disclosure, for the Crown, and the provincial Crown does not make copies of the disclosure to give to the accused in court, nor for the defence.  Rather, the accused must make an appointment to come to the Crown office to pick up a copy of the disclosure, and defence attorneys must arrange to send someone to the provincial Crown office to make a copy on the office photocopier.  In addition, Legal Aid staff report that a significant number of files for which disclosure has been requested cannot be located at the time staff come to photocopy them.  Delays in obtaining disclosure may now, with the new directive on first meetings between Legal Aid staff and clients, replace legal aid as the process that drives court schedules in the first instance.[24]

The above police and Crown practices regarding disclosure are not typical of practices in the rest of the province.

3.2.6 Other sources of assistance

A lawyer referral service exists whereby, for $23, an accused person can have a 30-minute discussion with a lawyer.  Lawyers pay $75 to be on a referral list, from which three names are provided to an accused seeking help.  One firm also offers a special rate, of $100 for an hour's consultation, for military personnel.

With the exception of Coverdale, the researchers were made aware of no other groups with a significant role in assisting accused persons appearing before the court – other than for diversion or post-sentencing. 

Coverdale is a non-profit agency established in 1980, inter alia, "to contact women and youth experiencing the justice system," and "to provide information and emotional support during the court process,"[25]  Coverdale provides a number of services to assist the unrepresented female accused –assisting the accused by: explaining how to get legal assistance; explaining the court process (e.g., disclosure); assisting at the diversion stage; explaining the charges to the accused; and  speaking to the court at sentencing.  Coverdale has also collected a valuable longitudinal body of empirical data on women before the Halifax courts.  Although a major report using this data was produced in 1991, [26] funds have not been available to analyze the data for the last 11 years.

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