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

Chapter 4: Brandon , Manitoba (continued)

4.2 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, management and operational practices in place in the courts.
  • Legal aid policies and practices – and especially the duty counsel system in place.
  • 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.

4.2.1 The community

Brandon has been nicknamed the "Wheat City" for its agricultural heritage and reputation as a prosperous farming community. Approximately two thirds of Manitoba's farmland is located within a 130-km radius of the city. It is situated in the southwest corner of the province, is two hours' drive from Winnipeg on the Trans-Canada Highway, and is the province's second largest city. Brandon was twice voted by Chatelaine magazine one of the top ten cities in Canada in which to live.

In 2001, the population of the city of Brandon was reported to be 39,716, representing only a slight increase (1.4 percent) compared to the 1996 population of 39,175. This small increase, however, exceeded the provincial population increase of 0.5 percent. Its population density was 532.9 per square kilometre, and just over 98 percent of its population reported English as the language used at home. The population of Brandon included a comparatively high proportion of females over the age of 65 (17 percent). Approximately 23 percent of males and 21 percent of females in Brandon were aged 15-to-29, the age range associated with the highest rates of crime.

Of the population 15 years and older in Brandon, the average total income was reported in 1996 to have been $22,504. This is similar to the provincial average income of $22,667. The 2001 estimated average household income of the Brandon Census agglomeration area was $46,300, lower than the provincial average of $51,000, and the per capita income in Brandon was $19,500, comparable to the provincial estimated per capita average income of $19,700.

The unemployment rate for the city of Brandon in 2001 was reported as 4.4 percent, somewhat lower than that year's provincial unemployment rate of 4.9 percent. The province of Manitoba recorded the lowest unemployment rate of all provinces in 2001.

Of the total population 25 years and over in Brandon, 10 percent reported less than a Grade 9 education. For the province of Manitoba, the percentage of those 25 years and over who had less than a Grade 9 education was slightly higher (14.5 percent). The city of Brandon reported a higher percentage of people with at least a high school certificate than was the case for Manitoba overall (64.7 percent vs. 60.8 percent).  The number of single-parent families in Brandon in 2001 was estimated at 1,771 (15 percent of the total 11,512 families).  The comparable provincial rate was 14 percent.

In Brandon, there were more owner-occupied dwellings (61 percent of an estimated 17,520) than rented dwellings. This was slightly lower than the provincial rate of 66 percent.

For the year 2000, the city of Brandon reported a total of 4,750 violent, property, and other Criminal Code offences. This was a decrease in reported crimes from the previous year. In 1999, the city of Brandon reported a total of 5,309 Criminal Code offences. While the number of violent crimes and other crimes against the Criminal Code increased from 1999 to 2000, the total number of property crimes decreased from 3,786 to 3,332, accounting for the decrease in reported incidents from 1999 to 2000.

4.2.2 The court

a. Special case/case-flow management issues

One of the researchers who conducted the Brandon interviews had considerable experience of addressing issues related to the management of the flow of cases through various courts.  One of the most striking observations regarding the Brandon court is the degree to which all key groups –especially the judiciary, the Crown, legal aid and the court administration – have for some years been effectively using case management practices to keep backlogs and delays to a minimum, while promoting early, fair resolution of cases. 

These case management practices have many very important implications for understanding legal representation in Brandon.  As a simple example, since the case management practices in Brandon keep to a minimum the number of court appearances required to resolve a case, there is a concomitant reduction in the workload of all groups to deal with each case.  In the case of legal aid (and duty counsel in particular), the time freed up can then be used to either expand the types of cases considered or to provide more intensive attention to existing cases. 

It is also important to note that the relationship between effective case management and legal representation is a two-way street – in Brandon and other courts.  For instance, three of the key principles of effective case management in a criminal court are that court intervention in the case should happen as early as possible, that "justice delayed is justice denied," and that accused should not be rewarded for unnecessary and inappropriate delay in their case.  Clearly, if an accused has effective representation from duty counsel (or from privately retained counsel) at the very beginning of the court process, the accused will be in a position to respond to early court and Crown initiatives – such as the Crown providing its best (plea negotiation) offer "up front."[41]

It was also relevant that virtually all groups interviewed indicated a certain pride in the fairness and efficiency with which the courts operated in Brandon – and a recognition of the work that had been done by all groups to bring the court to the point it was at.

b. Scheduling of cases

On a more specific level, the Brandon courthouse has six courtrooms in total, with federal cases scheduled in the manner shown in the following Figure.

Figure BR-1: Highlights of Scheduling Cases in Brandon
Six courtrooms in total in the courthouse Typically 2 or 3 courtrooms in use for criminal work each day
One courtroom (No. 1) used as docket court on certain days Sits Monday and Thursday for AdultSits on Tuesday for Juvenile Courtrooms handle both adult and youth Shared by Provincial Court and Queen's Bench
One courtroom used mainly for custodial cases Usually sits every day
One courtroom used mainly for mediations and pre-trials Usually sits every day
Special courts Drug court (i.e., handled by federal Crown) sits twice a month
Circuit Courts None

Roughly 4,000 criminal (CCC and drug) cases are disposed in Brandon each year.

4.2.3 Legal aid

In Brandon, as in the rest of Manitoba, legal aid is delivered through a mixed system of both staff lawyers and certificates issued to the private bar.  In fact, from the earliest stages, an accused person has the option of retaining private bar counsel and continuing with that counsel throughout the court process.  The accused can either pay the counsel privately or – after application to Legal Aid Manitoba and being granted a Legal Aid Certificate – from funds provided by Legal Aid. However, if private counsel is not obtained in the early stages, Legal Aid staff duty counsel will assist the accused person until it becomes clear that a certificate decision must be made.  Once a certificate is issued, the accused then has the choice of using a staff lawyer or a member of the private bar for further work. (The criteria for issuing a certificate are the same whether the accused chooses a private bar member or a Legal Aid staff lawyer.)

Legal Aid Manitoba officials in Brandon indicated in interviews that they believe the mixed system has the advantage of allowing the accused his/her choice of counsel throughout the court process, and, in addition, creates a healthy "competition" between staff lawyers and the private bar, which promotes the best service from all.

Three staff lawyers handle criminal legal aid cases in Brandon.  Two of them have more than 20 years' experience in criminal law, and the third has been in practice for eight years.

The Legal Aid staff lawyers were held in considerable respect and confidence by all groups whom we interviewed in this project. This respect extended to both their qualifications and the amount of work they were willing to take on.

4.2.4 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.

Brandon uses an "expanded duty counsel" system.  There are no restrictions on who may be assisted or the type of services that may be offered under the duty counsel system.  A legal aid file will be opened and staff will treat the client as an "expanded duty counsel" client (or a "certificate equivalent" for the purposes of their own internal evaluations).  Under this system a staff lawyer is available at all times in docket court to assist accused, and will try to speak to accused before court to advise them.  Without regard to financial eligibility or coverage tests, duty counsel will act in a flexible manner to provide whatever assistance is required with pre-trial release, disclosure, plea, sentencing, etc.  Duty counsel also speak to accused persons who have been screened by Crown attorneys for diversion, in order to explain to them the meaning and legal implications of diversion.[42] 

Judges will frequently refuse to accept an accused's plea until s/he has spoken to duty counsel.  Once duty counsel is seized of a case, s/he will follow it to the end – unless there is a conflict of interest or unless the accused chooses a private bar member to do the trial on certificate – ensuring continuity in the handling of the case.  All staff lawyers conduct the duty counsel function at set times during the court week.  Staff lawyers handle all functions, including trials if the accused choose them for this part of their defence. 

Duty counsel were described as "running off their feet."  Despite that, even if a self-represented accused were not looking for legal aid, duty counsel would offer and provide help.

4.2.5 Disclosure

In a number of sites participating in this study, issues were raised regarding the access the unrepresented accused had to the disclosure documents from the Crown.   Such issues were rarely raised in Brandon – where it is Crown policy to provide all accused with disclosure (the particulars of the Crown's case) before plea.

On the other hand, although we did not specifically try to collect empirical data on the influence on court operations of the availability of disclosure, it is worthwhile noting that 20 percent of the requests for remand directly observed in court were "for disclosure or particulars."[43], [44]

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