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

Chapter 3: Halifax, Nova Scotia (continued)

3.5 Impact of self-representation on the accused

3.5.1 Overall impact

The site visit interviews provided some interesting insights on the subject of impacts on accused persons.  Some interviewees were of the view that unrepresented accused suffered significant impacts from the lack of representation.  Other interviewees tended to the view that, if a case reached the sentencing stage, the sentence might (or might not) be just as fair, or even less harsh – but more unrepresented accused cases reached the conviction and sentencing stage than did represented cases. 

Among the impacts cited by the former were the following:

  • A greater likelihood of conviction.
  • Pleas of guilty by – and the resultant conviction and criminal record for – unrepresented accused who might have had a viable defence.
  • Imposition of unworkable conditions of sentence or bail – that must then be altered, or will be violated.
  • More severe sentences, since unrepresented accused would tend to plead guilty quickly and not take the time to muster the positive arguments that should be considered at sentence, e.g., things the accused had done to turn his or her life around.  At the same time, some felt that unrepresented accused would get the same penalty or result (as represented accused) in at least half the cases.

Although it would not be measured by statistics, a number of those interviewed cited the anxiety felt by accused from their lack of understanding of the court process, and the uncertainty surrounding their case.[29]

3.5.2 Specific strategic and tactical mistakes by the accused

As noted earlier, in the site interviews, most key informants suggested the earlier stages of the criminal process – initially at arrest, after charging, pre-trial release, and at plea – were the most important for representation.  A few suggested trial was the most important, and most suggested sentencing was very important. The words of one interviewee represented the views of many of those interviewed:

"I can't think of any time when having legal representation is not important."

The following were among the most serious errors that interviewees suggested would be made by unrepresented accused at pre-trial stages:

  • Not contacting the court if they couldn't attend court, and not understanding the consequences of failing to appear for court.  (Failure to appear was directly correlated with lack of representation, according to Crowns.)
  • Not understanding the differences between moral guilt and legal guilt.
  • Basing their case on misinformation – or information that was biased towards one perspective (given that it often came mainly from the police).
  • Agreeing to release conditions that were unworkable, e.g., no-contact clauses with spouses with whom they needed to have some legitimate contact (e.g., to help care for children).
  • Contacting Crown witnesses and making damaging statements at that time.
  • Not understanding what they were charged with.
  • Pleading guilty too soon to all (as opposed to only some of) the original charges, and without a full understanding of the charges or consequences.
  • Not picking up their disclosure packet, not learning the Crown's case against them or preparing for it.
  • Not understanding the concept of, the availability of, or importance of disclosure.
  • Not knowing that it was possible to change their plea.

The following were among the most serious errors that interviewees suggested would be made by unrepresented accused at trial:

  • Not knowing what defences were available to them.
  • Not knowing how to cross-examine witnesses.
  • Arguing with witnesses and trying to give testimony while cross-examining witnesses.
  • Calling witnesses who damaged their defence.  (Conversely, lawyers would litigate things that could be litigated, and leave the rest.)
  • Taking the stand themselves (when doing so would not help their case).
  • Making damaging admissions ("skewering themselves") at trial because they did not know the law of, e.g., assault or fraud.
  • Not availing themselves of processes that could help them, such as a hearing on the confession.
  • Not being able to fathom complex defences.
  • Making irrelevant statements and not making mitigating statements.
  • Not knowing the best arguments to present at sentencing.

The Court Observations in first-appearance/docket courts found that, overall, a quarter of the appearances took one minute or less.  The median amount of time taken per appearance was two minutes – meaning that half the cases took more than two minutes, but half took less.  Another quarter took four minutes or longer.  Only 10 percent took more than ten minutes.[30]  Within the context of this type of time pressure, it is not difficult to understand why many of those interviewed noted that an accused without a developed understanding of court procedures would make specific mistakes – and would be disoriented generally throughout the court process.

However, this problem of disorientation was present even with accused who had lawyers.  In the words of one person interviewed, "Accused do not want the lawyer to think they are stupid."

3.5.3 Type of plea entered by type of representation

The previous discussion focused on the perceptions of those interviewed regarding the impacts of accused appearing before the court without representation.  In this and following sections 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.

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 H-6 displays the plea entered by the type of representation available to the accused. 

  • Sixty percent of all pleas were guilty pleas.
  • Guilty pleas were entered in 91 percent of duty counsel cases – a rate considerably higher than for other types of representation.
  • Guilty pleas were entered in 56 percent of cases assisted by other legal aid counsel, exactly the same proportion as for unrepresented accused.
  • Cases represented by the private bar were least likely to result in a guilty plea, but this rate (52 percent) did not differ a great deal from that of accused who were unrepresented or those who were represented by Legal Aid other than duty counsel.
Figure H-6. Cases in Which a Plea was Entered By Type of Plea by Type of Representation at Plea Appearance, Halifax*
Plea Proportion of all Pleas by or on behalf of Accused Represented by Number of Cases Proportion of Cases %
Self % Duty Counsel % Other Legal Aid % Private Counsel %
Guilty 56 91 56 52 200 60
Not guilty 44 9 44 48 134 40
Total Cases 100 100 100 100 334 100

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

3.5.4 Conviction or not by type of representation

Conviction rates are examined in terms of representation at two stages in the court process – at appearances at which the plea was entered (containing more dispositions by way of guilty plea) and final appearances (containing a higher proportion of cases that went to trial).

Figure H-7 shows the conviction rates for cases by the type of representation at plea. The data suggest that:

  • Overall, 75 percent of cases in which a plea was entered result in conviction.
  • Rates of conviction for unrepresented accused (78 percent) were higher than those for accused represented by Legal Aid other than duty counsel (69 percent).
  • The conviction rate for accused represented by duty counsel was the highest of all, at 98 percent.
  • Rates of conviction for accused represented by private counsel were identical to those for accused represented by Legal Aid other than duty counsel.

An analysis of conviction rates at plea appearance, according to individual offence category, was able to make comparisons only for three offence groupings, because of the small numbers of cases in other offence groupings.  The same relative pattern as seen above, for all cases, was observed, with the exceptions that:

  • For assault, excluding common assault,  unrepresented cases did considerably worse (67 percent conviction rate) than did legal aid cases (52 percent) and somewhat worse than privately represented cases (56 percent). 
  • For offences against the administration of justice, private counsel cases had higher rates of conviction (94 percent) than did legal aid cases (85 percent).
  • For thefts and frauds, the conviction rate for private bar cases (63 percent) was lower than that for unrepresented and Legal Aid-represented cases (each 79 percent).

Figure H-7.  Disposed Cases by Type of Disposition by Type of Representation at Plea Appearance, Halifax

Disposition Proportion of Dispositions for Accused Represented by Number of Cases Proportion of Cases %
Self % Duty Counsel % Other Legal Aid % Private Counsel %
Convicted* 78 98 69 69 250 75
Not Convicted** 22 2 31 31 64 25
Total Cases 100 100 100 100 334 100

Notes

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

Figure H-8 shows similar information but, instead, is done using representation at final appearance (containing more cases that went to trial).  The data suggest that:

  • Overall, 66 percent of all disposed cases were convicted.
  • The conviction rates were almost identical for accused who were self-represented (60 percent), represented by Legal Aid (63 percent) and represented by private counsel (62 percent).
  • Conviction rates for duty counsel cases were the highest of all, at 92 percent.

One should, however, note that, in comparing conviction rates for self-represented accused with those for represented accused, one should take into account the likely impact of post-charge and pre-court process "diversion" on these conviction statistics.  Accused who were diverted  were extremely likely to not have a lawyer. Given that successful completion of the diversion program would result in non-conviction, the existence of a diversion program would be expected to result in lower overall conviction rates for self- represented cases (with little if any impact on conviction rates for represented case).  Unfortunately, data were not available on which cases were diverted, or even the percentage of cases that were diverted, and therefore we cannot say what the conviction rate would be for unrepresented accused who were not diverted.  However, it is safe to say that the rate for non-diverted non-represented accused would be higher than the 60 percent shown in Figure H-8.

An analysis of conviction rates at final appearance, according to individual offence category, was able to make comparisons only for three offence groupings, because of the small numbers of cases in other offence groupings.  A different pattern emerges:

  • In assault, excluding common assault, cases, unrepresented accused did moderately worse (57 percent conviction rate) than did legal aid cases (47 percent), and somewhat worse than privately represented cases (50 percent).
  • For offences against the administration of justice, unrepresented accused and accused assisted by private counsel did worse (95 percent conviction rate) than did duty counsel and other legal aid cases (87 percent).
  • For thefts and frauds, unrepresented accused did considerably better (47 percent conviction rate) than did duty counsel (93 percent), other legal aid (71 percent) or private lawyer cases (60 percent).
Figure H-8. Disposed Cases By Type of Disposition by Type of Representation at Final Appearance, Halifax
Disposition Proportion of Dispositions for Accused Represented by Number of Cases Proportion of Cases %
Self % Duty Counsel % Other Legal Aid % Private Counsel %
Convicted* 60 92 63 62 333 66
Not Convicted** 40 8 37 38 175 34
Total Cases 100 100 100 100 508 100

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.  Whether or not that possibility alone is sufficient to call for greater availability of legal representation is a matter of public policy.

3.5.5 Custodial sentence and type of representation

Again, custodial sentences are examined in terms of two sets of data – by representation at the plea appearance (containing more dispositions by way of guilty plea) and by representation at the final appearance (containing a higher proportion of cases that went to trial).

Figure H-9 shows the proportions of cases receiving a custodial sentence, according to the type of representation available to the accused at the plea appearance.[31]

  • Overall, 38 percent of cases in which a plea was entered resulted in a custodial sentence.
  • Unrepresented cases fared best of all (19 percent imprisonment rate), suggesting that the legal aid seriousness criterion and the accused's decision whether to hire private counsel combine to make the charges faced by unrepresented accused less serious or less deserving of a custodial sentence.
  • The highest imprisonment rate was in cases handled by duty counsel (77 percent).  Since all of these accused would have been initially detained by police rather than released on their own recognizance, this suggests something of the predictive power of police detention decisions.
  • Cases handled by other legal aid counsel at the plea appearance had a higher imprisonment rate (43 percent) than did private counsel cases (26 percent).

An analysis of imprisonment rates by representation at plea appearance, according to individual offence category, was able to make comparisons only for three offence groupings, because of the small numbers of cases in other offence groupings (see Appendix figures).  For thefts and frauds, and offences against the administration of justice, the same relative pattern as seen above, for all cases, was observed, but a different pattern was seen for:

  • assaults, excluding common assault, in which private bar cases did best of all (17 percent imprisonment rate), but unrepresented accused and other legal aid cases still fared better (33 percent and 36 percent, respectively) than did accused who were represented by duty counsel (100 percent imprisonment rate).
Figure H-9. Disposed Cases By Whether or Not Custodial Sentence Received by Type of Representation at Plea Appearance, Halifax
Sentence Represented by Number of Cases Proportion of Cases %
Self % Duty Counsel % Other Legal Aid % Private Counsel %
Custodial Sentence 19 77 43 26 127 38
No Custodial Sentence 81 23 57 74 207 62
Total Cases 100 100 100 100 100

Notes
Source: Disposed Cases Sample.

Figure H-10 shows the distribution of custodial sentences for cases disposed by type of representation at final appearance (which contains a higher proportion of cases that went to trial). 

Figure H-10. Disposed Cases By Whether or Not Custodial Sentence Received by Type of Representation at Last Appearance, Halifax
Sentence Represented by Number of Cases Proportion of Cases %
Self % Duty Counsel % Other Legal Aid % Private Counsel %
Custodial Sentence 10 76 39 26 166 33
No Custodial Sentence 90 24 61 74 342 67
Total Cases 100 100 100 100 508 100

Notes
Source: Disposed Cases sample.

The Figure shows that:

  • Overall, 33 percent of all disposed cases received a custodial sentence.
  • Unrepresented accused fared best of all (10 percent custodial rate); cases finalized with duty counsel had the highest imprisonment rate (76 percent), followed by cases with other legal aid representation (39 percent) and accused represented by private counsel (26 percent).

An analysis of imprisonment rates by representation at last appearance, according to individual offence category, was able to make comparisons only for three offence groupings, because of the small numbers of cases in other offence groupings.  The same general relative pattern as seen above, for all offences, was found.

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 an accused will get a custodial sentence, it is relevant that custodial sentences are received by more than one in 10 accused who are self-represented at disposition – and by more than one in five accused who are self-represented at plea.


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