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

Chapter 4: Brandon , Manitoba (continued)

4.4 Other types of representation

Information on the frequency with which accused have various types of legal representation is important for understanding the frequency of self-representation.

The information in Figure BR-5 provides such information, using data from the Direct Court Observations.

Figure BR-5. Distributions of Observed Case/Appearances in Docket Courts By Representation Type by Appearance Type, Brandon *
Appearance Type Represented by Total Number of Case/ Appear-ances
Self % Duty Counsel/ Legal Aid % Private Counsel % Agent** %
Non-Final 9 31 40 19 (406)
Final 14 41 44 1 (113)
Total % 10 34 41 15 (519)
Number of Case/Appearances (52) (147) (214) (79) (519)
  • * Data Source: Direct Court Observation Sample.
  • **  Persons represented by an "agent" usually have a lawyer who was unable to be in court at this appearance; typically duty counsel will fill in at this stage.

The table shows the important role of Legal Aid duty counsel in the non-trial/docket courts. 

For the 519 case/appearances covered in the Figure:

  • 10 percent involved an accused who was unrepresented (although almost half of these appearances resulted simply in an adjournment);
  • 41 percent involved a private bar member;
  • 34 percent involved duty counsel or other Legal Aid staff lawyers; and
  • 15 percent involved an agent.[46]

Although the data from the Three Month Docket sample overestimate the proportion of self-represented accused, data from that sample is consistent with the relative preponderance of cases with Legal Aid counsel, private counsel and agents.

4.5 Impact of self-representation on the accused

4.5.1 Overall impact

The site visit interviews provided interesting insights and perceptions on the subject of general impacts of lack of representation on accused persons.  Without exception, interviewees attached strong importance to representation in criminal proceedings.  Unanimously, however, they believed that, because of the duty counsel system, unrepresented accused were to be found principally at trial, since it is at the stage of obtaining a certificate for trial assistance that all financial eligibility and coverage rules come into play. 

Some interviewees were of the view that unrepresented accused suffered significant impacts from the lack of representation at trial.  Others felt that the results tended to be as fair as in any other case, with the possible exception of unrepresented accused who do a poor job at their own trial and sentencing,because Crowns and judges compensate for the accused's lack of representation by assisting them wherever possible.

Interviewees were generally of the view that unrepresented accused cases and cases assisted through duty counsel received a result that was just as fair as any other case.  This sanguine view was reinforced by the availability of and judges' virtual insistence on legal aid assistance to persons who appeared without counsel.

Interviewees were, however, unanimous in believing that very few accused appeared in criminal court without having spoken to counsel.  Perhaps one in ten have not seen counsel when they first appear, according to two respondents who were willing to estimate the numbers, but these persons would be advised to speak to counsel, and the case would be stood down until they did.  Legal Aid officials confirmed that they are encouraged by senior management in Legal Aid Manitoba to fill the need wherever they can, in a flexible and responsive fashion.

  • Crowns stated that, when they encounter unrepresented accused, they would ask them to speak to duty counsel.
  • Judges in the Brandon court reportedly took a very firm stance in virtually insisting that unrepresented accused speak to duty counsel, according to all sources.  The research team actually observed two instances, during the initial site visit, of judges refusing to accept a guilty plea from an accused who had not conferred with counsel, insisting that the accused first speak to duty counsel, while the case was stood down.

4.5.2 Specific strategic and tactical mistakes by the accused

Most of those interviewed indicated that representation was important not only at the trial stage.  Most interviewees suggested the earlier stages – initially at arrest, after charging, pre-trial release, and at plea – were the most important.  A few suggested trial was the most important, and most suggested sentencing was very important.  Many cited the evidence and simple logic that strongly suggested that decisions made from the point of arrest and charging have significant impacts on the outcome of a case.  For some decisions (e.g., bail and plea negotiations) the impact was indirect.  For other decisions (e.g., plea) the impact was very direct.

Interviewees suggested that among the most frequent errors made in Brandon by unrepresented accused were the following:

  • They did not understand concept of disclosure – or did not use disclosure to try to find weaknesses in Crown's case.
  • "Giving up" and pleading guilty too soon. This was reportedly far more common in Brandon than insisting on trial.
  • However, those who did not plead guilty early might be less likely to enter a guilty plea later, when it might be in their interest.
  • Not understanding the defences available to them (especially in breathalyzer situations).
  • Not being able to fathom complex defences.
  • "Raising useless arguments," belabouring points, not knowing when to give something up.
  • Arguing with witnesses. Judges gave unrepresented accused more leeway, but had to prevent accused from badgering witnesses.
  • Not knowing the best arguments to present at sentencing.

The court observations found that, overall, the average amount of time taken per appearance was two minutes and three seconds.  On different court days, this varied from an average of one minute and 45 seconds to an average of four and a half minutes.[47]  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.

To paraphrase one interviewee, "It is terrible to see an unrepresented accused walking away without understanding what has happened."

4.5.3 Type of plea entered by type of representation

Earlier sections described the perceptions of those interviewed regarding the impacts of accused appearing before the court without representation.  The study also has available empirical evidence on what actually happened to unrepresented accused (i.e., using data from the Direct Court Observation file and from the Three Month Docket file).

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 suggested that one of the most common errors that unrepresented accused made was to "give up" and plead guilty too soon.  However, at the same time, interviewees did suggest that, if an accused were likely to be entering a guilty plea, the judge or Crown would refer the accused to duty counsel.

A plea was entered in 19 percent of the appearances in the supplemented CCAIN file.  In Brandon, if the accused wished to plead not guilty, the case would be transferred to a trial courtroom and the plea entered there.  For that reason, and because of the nature of the file (case/appearances in non-trial courtrooms rather than disposed cases from all courtrooms), it is not possible to trace differences in the type of plea entered according to the type of representation.

4.5.4 Conviction or not by type of representation

In examining dispositions, it is important to remember that both the Direct Court Observation file and the Three Month Docket file cover only cases heard in the non-trial courts – usually Courtroom 1.  Therefore, neither file includes data on dispositions reached after the case has been scheduled to a trial court.

With that caveat in mind, Figure BR-6 presents data from both data sources.

Figure BR-6. Distribution of Disposed Cases: By type of Final Disposition by Type of Representation: Brandon Comparison of Estimates from Direct Court Observation and [Three Month Docket] Data Sources*
Disposition Proportion of all Dispositions by or on behalf of Accused Represented by Number of Case/ Appea-rances Proportion of Case/ Appearances %
Self % Legal Aid % Private Counsel %
Guilty, peace bond, 25 [43] 60 [64] 70 [63] 66 / 251 58 [58]
Varied order or Committed for Trial** only 25 [12] 26 [ 6] 6 [5] 19 / 32 17 [ 7]
Not guilty, Discharge Dismissed, stayed, withdrawn 50 [45} 15 [30] 24 [32] 28 / 150 25 [35]
Total Number of Case/Appearances 16 / 114 46 / 167 50 / 149 113 / 433

Notes
The first percentages or numbers shown in a cell are based on data from the Direct Court Observation File; the second percentages shown (in square brackets "[]") or numbers are based on the Three Month Docket file.

*  Excludes six cases for which representation was unspecified in the file, and 178 cases for which final disposition information was unavailable in the file.

Although there are differences in the results from the two files, some general observations can be made.[48]

  • There seemed to be little difference, regarding the likelihood of receiving a guilty verdict, between cases with legal aid staff lawyers and cases with private counsel.
  • Fully a quarter of all dispositions were a stay, withdrawal, or dismissal of charges.
  • Unrepresented accused were more likely to receive such a disposition, reflecting the fact that diversion rarely calls for legal representation, although counsel may be available to explain the consequences of diversion to the accused.

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 25 percent shown in Figure BR-6.

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 will often 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.

4.5.5 Custodial sentence and type of representation

The case/appearance file contains 392 appearances in which at least one guilty verdict was entered and a final disposition made.  Figure BR-7 shows that there were only relatively minor differences, among the different types of representation, in the likelihood of an accused receiving a custodial sentence – with the likelihood ranging from: [49]

  • 16 percent at appearances involving a legal aid staff lawyer; to
  • 19 percent at appearances at which the accused was self-represented; to
  • 23 percent for appearances involving a private lawyer.
Figure BR-7. Distribution of Appearances in which a Conviction was Entered by Whether or not a Custodial Sentence was received
by Type of Representation - Brandon*
Sentence Represented by Number of Cases Proportion of Cases
Self (%) Legal Aid (%) Private Counsel (%) Agent (%)
Custodial Sentence 19 16 23 0 74 19%
No Custodial Sentence 81 84 77 100 318 79%
Number of Case/Appearances 77 161 150 4 392
Total Cases 100% 100% 100% 100% 100% 100%

Notes
Source: Three Month Docket file.
* Excludes four cases for which representation was unspecified.


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