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

Chapter 3: Halifax, Nova Scotia (continued)

3.7 Overall conclusions

3.7.1 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 receive court dispositions that represent serious penalties or deprivations of liberty. Some 60 percent receive a criminal record and a smaller, but still significant number (in the order of 10 percent) receive custodial sentences.[36]
  • Unrepresented accused tend to have relatively shorter pre-trial appearances – and fewer appearances in total – than do accused represented by different types of counsel.

3.7.2 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 Halifax (not all were mentioned or agreed to by all):

  • The financial eligibility and coverage restrictions on legal aid, which leave little room to maneuver and effectively exclude the working poor and those who are not likely to receive a jail term:

    "There are a lot of hard working people of modest incomes who can't afford a lawyer."

  • Some accused are embarrassed enough to "just want to get it over with," and plead guilty as soon as possible; conversely, for some the result of being embarrassed results in their delaying dealing with issues related to the charges (including getting a lawyer).
  • Some accused who are facing continued pre-trial custody plead guilty in order to get out of jail to retain their job, conceal the matter from their family, etc.
  • In the case of female accused, it was suggested that many do not know about legal aid and/or how and where to get a lawyer – with a significant proportion thinking that the court will appoint them one.
  • Finally, a number of those interviewed noted that there is a (relatively small) percentage of accused who appear unrepresented for strategic reasons (e.g., delay) – a tactic more common among those charged with conspiracy or drug charges. In such cases, it is not infrequently the case that a lawyer will have been consulted, but is only available for informal advice.

3.7.3 Solutions suggested by those interviewed in Halifax

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

  • Having judges ensure that the defence and/or unrepresented accused receive full and timely disclosure.
  • Expansion of the duty counsel system to include all first appearances and to give more assistance to the existing duty counsel staff lawyer.  It was felt this would accelerate the process for those accused who need more information and advice before entering a plea or electing.
  • Provision of duty counsel resources at the weekend Justice of the Peace courts.
  • Provision of duty counsel resources to allow duty counsel to act as a "go-between" – between the unrepresented accused and the Crown for purposes of conveying factual information (e.g., whether the Crown is likely to be seeking a custodial sentence).  This recommendation would overcome the difficulties of the Crown talking directly to the accused.
  • "Extended duty counsel," wherein the duty counsel takes the case from start to finish; this model had at one time been in use in Halifax, and was considered by many staff lawyers to be too stressful on them, but it was supported by other interviewees.
  • Having present in the courtroom a lawyer who would be available to give timely advice to unrepresented accused, while the case is held down for a few minutes.
  • Ensuring that all accused have informed advice as to the likely consequences (including penalty) upon conviction for the offence.
  • Recognizing the potential role in providing (non-legal) assistance to unrepresented accused of groups such as Coverdale, court administrative staff and court sheriffs.
  • Expansion of legal aid resources 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.
  • Relaxation of the legal aid financial eligibility criteria, to assist more of the "working poor."
  • Elimination of the "likelihood of jail" criterion for legal aid in favour of a more flexible criterion regarding seriousness.
  • Expand the legal aid eligibility criteria to include likelihood of losing the means of earning a living (e.g., losing driver's license).
  • Special consideration for legal aid for first-time offenders – if only to prevent more of them than necessary from acquiring a criminal record.
  • Use of paralegals.
  • Having judges show less tolerance for deliberate efforts to delay the process by "trifling with" the legal aid approval process.
  • Increases to the tariff system (called by one official "more of an honorarium for public service") for those cases done on certificate.
  • Assisting judges and other court officers to understand that unrepresented accused will always be "inarticulate and hostile," and to deal with them accordingly.
  • 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.
  • A more "mixed" system in which more cases are handled on certificate by the private bar (under a more generous tariff system).

It was also suggested that better information of the type collected by the current project would be of assistance. For instance:

  • The data that has been collected by Coverdale on women accused before the Halifax courts over the past 11 years remains unanalyzed.  A modest amount of money invested would yield valuable insights into the experience of this part of the defendant population (including insights regarding representation).
  • Before this project, it was not mandatory for court clerks to enter the type of representation for cases into the court automated information system.  During the project, filling out the representation field became mandatory.[37]  Analysis of this information (after sufficient time has passed to capture an adequate amount of data) would be very useful.

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