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

Chapter 4: Brandon , Manitoba (continued)

4.6 Further impacts of lack of representation

An earlier section described the impacts on the accused of their appearing before the court without representation.  In this section we discuss the impact of self-representation on the key groups involved in the courts – and on court operations.

Information is presented from both the interviews and the data specially collected for the project.  It is, however, important to repeat that, where empirical information is presented, it is not presented to draw causal inferences, but simply to describe the events at various stages in the process.

4.6.1 Impacts on court officers and others

a. Victims and witnesses

A serious problem arises during a trial when the self-represented accused must question a witness – or worse, the alleged victim.  There is a often a fine line between questioning and badgering or harassment when an inexperienced accused is trying to examine or cross-examine a person with whom he or she has a personal and tense relationship.

b. Legal Aid staff and duty counsel

Interviewees were unanimous in stating that the representation provided by Legal Aid staff was of excellent quality, although fears were expressed by some that the tariffs paid to the private bar for certificate work were eroding the access to and quantum of service offered by the private bar in Brandon. 

The high quality of legal aid representation was attributed to the aforementioned factors of: extensive legal experience and skills of staff lawyers, who are senior members of the bar and highly respected;  staffing levels that are challenging but not unmanageable;  the "competitive" structure of the legal aid plan, in which certificate work by both staff lawyers and members of the private bar promotes efficient, quality work; and the relatively equal footing of Crowns and staff lawyers.  In addition, in most cases, Legal Aid officials have adequate – although not generous – lead time to study case files prior to court.  Usually the responsible Crown attorney communicates with Legal Aid staff the day before appearances to indicate how the Crown will proceed, and Legal Aid staff can usually reach the Crown to discuss the matter in advance, or can meet with Crowns in the early morning on the day of court. 

Some court personnel stated that Legal Aid staff were "run off their feet" (in the words of one clerk), and court was sometimes delayed while staff lawyers put in double or triple duty in trials, docket court, and interviewing accused in the cells or elsewhere.  One Crown speculated whether duty counsel had adequate time to work with cases.  One Legal Aid staff lawyer indicated this was not a problem – while all admitted that they put in very long hours.  Despite the hours, job satisfaction among Legal Aid staff lawyers appeared to be high.

c. Crown attorneys

At stages before trial, Crowns could be put in an awkward position when unrepresented accused wished to discuss their case with the Crown.  Some Crowns would speak to unrepresented accused, but all tried to avoid it when possible.  Although Crowns were not unanimous in their assessment of the magnitude of the problems, among the difficulties they noted were:

  • A higher number of remands ordered by the judge to enable the unrepresented accused to get a lawyer (more remands than in represented cases).
  • Reviewing the disclosure packet in order to ensure victims and witnesses were not placed in any danger.
  • Being unable to agree with unrepresented accused on narrowing the issues by settling on which evidence can be stipulated.
  • Trying to resolve a case quickly – more difficult to do when the accused had no counsel and Crown was barred from giving advice to the accused.
  • Ensuring that unrepresented accused did not inadvertently reveal to the Crown something that could be used against them.
d. Judges

Crowns and judges agreed that trials involving unrepresented accused took considerably longer than trials of represented persons.  Two interviewees said such trials took at least "twice as long," and one said, "Add a day."  Crowns will alert the Trial Co-ordinator when the accused will be unrepresented, and suggest that a lengthier period be scheduled for the trial.  Judges were put in an awkward and time-consuming position at such trials, "getting in the middle of it when they are supposed to be independent."  They found themselves having to:

  • explain to unrepresented accused what would be happening as the process unfolded;
  • outline the options that the unrepresented accused had in presenting evidence and calling witnesses;
  • coach unrepresented accused in how to formulate questions during cross-examination;
  • protect the rights of unrepresented accused;
  • guard against unrepresented accused attempting to manipulate the case in order to delay it;
  • call recesses in order to give the unrepresented accused time to calm down or prepare;  and
  • suggest defences and arguments that were available to the unrepresented accused.

It is rare to see an unrepresented accused cross-examining his or her victim in court.  In assault and sexual assault cases, the judge will step in and appoint counsel to prevent such cross-examination, and/or appoint a lawyer to assist the victim.  The Women's Advocate at the Brandon court could recall only one instance in the past eight years of an unrepresented accused cross-examining his victim in a domestic assault case.

e. Court administration staff

Clerks at the registrar's counter indicated that each of them handled perhaps 10-to-15 inquiries per day from accused who needed questions answered.  "Most" of these were either unrepresented impaired driving cases or represented accused who couldn't remember who their counsel was or what date they were to appear.  Clerks also spent time with accused persons explaining to them the conditions of their bail, although duty counsel also assisted in this.

f. Court security

Sheriff's staff at the courthouse reported that problems related to unrepresented accused were very rare.  Legal Aid staff normally arrived to speak to persons who were brought into custody within one or two hours of being contacted.  The biggest problem faced by security staff was with accused who were represented, where the defence lawyer did not communicate effectively with security staff as to whether and when the accused needed to be brought into court.

4.6.2 Overall impacts on court operations

a. Court workloads: Length and nature of individual appearances
Length of appearances

In most provincial criminal courts in Canada, only 4-to-10 percent of cases go to trial.  The overwhelming majority of appearances for cases are therefore not trials – and, as noted earlier, in Brandon (as in other courts) these appearances are typically in the order of one or two minutes per case.  What would, in other situations, seem a very minor increase in the time taken to perform a function at a case appearance, can therefore represent a major increase in judicial, Crown, legal aid, defence counsel and court administration workloads – proportionally and in total. 

Our court observation data contain information about comments made by court officers and the accused about representation.  Only 19 (four percent) of the appearances featured such a comment.  Virtually all of these appearances involved the judge asking the accused if s/he had spoken to a lawyer yet, and urging the accused to speak to a lawyer or apply for legal aid.  In some of these appearances, the Crown also indicated that the accused should get a lawyer.

While creating our Direct Court Observation file, court observers sat in the non-trial courts and captured the time taken by each case/appearance.  The results speak directly to the issue of whether appearances of self-represented accused (in the appearances prior to trial) are longer or shorter than those with other types of representation. 

As shown in Figure BR-8, in these courts, similar times were taken for the 50 percent of cases with the shortest appearances – 60 seconds for cases in which the accused was self-represented and 60 seconds for cases in which the accused was represented by Legal Aid staff lawyers (by far the majority of whom were duty counsel) or by private lawyers.   On the other hand, when one looks at the length of the shortest75 percent of cases, one finds that –– one has to include cases taking up to 120 seconds to get 75 percent of the cases that were either self-represented or were handled by private lawyers. From a court resources perspective, this result implies that Legal Aid staff lawyers (usually duty counsel for the case/ appearances observed) handle cases in a more expeditious manner than do self-represented accused.  From an access to justice perspective, it might be seen as positive that the courts spend more time on cases when the case is self-represented.

An attempt was also made to differentiate between case/appearances that resulted in a remand or a final disposition.  Doing so provides important clarifications to the results just cited.

As shown in Figure BR-8, when one looks at the 50 percent of case/appearances that were disposed of most quickly – and which resulted in a remand – there seems to be no difference in the amount of time taken per case for self-represented cases, compared to cases represented by Legal Aid staff lawyers or private lawyers.   However, at least 25 percent of self-represented cases took 120 seconds or more – compared to 75 percent of cases represented by Legal Aid staff lawyers or private lawyers being dealt with in 60 seconds or less.  In other words, type of representation does not seem to make much of a difference for the shortest case/appearances, but there are differences for longer case/appearances.

Figure BR-8. Case/Appearances: Distribution of Time (seconds) for different types of Case/Appearances by Type of Representation, Brandon

Appearance Number at which Plea was Entered 25th/ median/ 75th percentiles times for case/appearances represented by All Types of Represen-tation*
Self Staff Legal Aid/ Duty Counsel Private Counsel Agent
All Case Appearances 25e = *** *** *** *** ***
50e = 60 60 60 *** 60
75e = 120 60 120 60 60
(n= 52) (n= 170) (n=214) (n=79) (n= 518)
By Result of Appearance
Appearance Number at which Plea was Entered 25th/ median/ 75th percentiles times for case/appearances represented by All Types of Represen-tation*
Self Staff Legal Aid/ Duty Counsel Private Counsel Agent
Remand or Stood Down 25e = 45 *** *** *** ***
50e = 60 60 60 30 60
75e = 120 60 60 60 60
(n= 30) (n= 116) (n= 148) (n=70) (n=366)
Final 25e = 60 60 60   60
50e = 120 120 270 ** 120
75e = 240 450 660   480
(n=15) (n=45) (n=54)   (n=117)

Source:  Direct Court Observation file.

  • **  Less than 10 case/appearances.
  • *** Less than 60 seconds.

Opposite results are obtained when one looks at appearances that resulted in a final disposition.  Although 50 percent of such case/appearances for both self-represented cases and cases represented by Legal Aid staff lawyers were finished within 120 seconds, 50 percent or more of cases represented by private counsel required at least 270 seconds.  However, a comparison of 75th percentile statistics (i.e., expanding the analysis to include longer case/appearances), shows that case/appearances resulting in a final disposition seemed to be shorter for self-represented cases (75th percentile of 240 seconds) than for case/appearances represented by Legal Aid staff lawyers (450 seconds) or private lawyers (660 seconds).  From a court resources perspective, this is perhaps a positive result.  However, from an access to justice perspective, there may be reason to be concerned that less time is spent dealing with a self-represented case/appearance that results in a final disposition – than one where a duty counsel or private counsel is involved.

Another factor that would add to the time taken by a case on a court docket would be the process of "standing down" a case to later in the day to complete consideration of any matters that day.  In fact, cases that were self-represented had a small likelihood of being stood down – and were less likely to require being stood down than were cases with different types of representation.  The relevant likelihoods of having a case stood down were:

  • 4 percent for self-represented accused (n = 52);
  • 9 percent for cases represented by Legal Aid staff (mainly duty counsel) lawyers (n = 171);
  • 8 percent for cases represented by private counsel (n = 214); and
  • 3 percent for cases represented by agents (n=79).
Workloads: Nature of individual court appearances

As noted earlier, Crowns suggested that unrepresented accused made more appearances as judges tried to ensure they find counsel.  Our docket-based data file was unable to speak to this phenomenon, but the Court Observation information did speak to the question of what goes on at appearances involving unrepresented and represented accused.

The Court Observation data yielded information about how many appearances were "productive," in the sense that they resulted in decisions on (or, at least, consideration of) one or more of three matters: namely bail, plea, and elections.  Figure BR-9 shows the breakdown of courtroom events (or non-events), according to representation status at last appearance. The columns in the left half of the table show data for "interim" (i.e., non-final) appearances.  The columns in the right half of the table show data for final appearances.

Figure BR-9.  Percentage Distribution of Case/Appearances: By Type of Decision Made and Case Status (Interim or Final Appearance) by Accused's Representation Status, Brandon

With respect to interim appearances, one of the most striking observations is that, overall, appearances in a case were most likely not to involve consideration of bail, elections, or the entering of a plea (see column 2 – "no decision") if the accused was unrepresented. 

In fact, almost all (97 percent) of the interim appearances by accused self-represented at interim appearances resulted in no plea, election or bail decision (or consideration for bail).  This may tend to reinforce the perceptions of key informants that judges were reluctant to allow cases to proceed before the accused had spoken to duty counsel or another lawyer.  Appearances involving private counsel were least likely (85 percent) to result in no bail, election or plea decision.

At final appearances (i.e., the right-most columns in Figure R-12, almost half the appearances by unrepresented accused (48 percent) resulted in a dismissal, stay, or other such outcome, reinforcing the suggestion that many of these cases were diverted, after nothing more than perhaps a little advice and information from counsel.  Again, only small differences are observed between Legal Aid staff lawyer cases and private counsel cases.

b. Workloads: Number of appearances per case

At the time of the site visit, court schedules were essentially free from significant backlogs and delays.  However, some court personnel expressed concern that the impending departure of certain key personnel would soon create a backlog problem that would jeopardize the court's efficient functioning.

The Direct Court Observation file does provide information to at least initiate an exploration of the reasons for remands – at least in the pre-trial courts – and the results show that only a small percentage (less than 3 percent) of the reasons for granting remands were related to obtaining counsel, or to remand to a day that counsel could be present.  For instance, of remands granted in the 30 case/appearances involving self-represented accused:

  • zero percent were "to get a Legal Aid certificate,"
  • 10 percent were "to get a lawyer," and
  •  1 percent were "to a date at which a missing lawyer was available."[50]

Even for those cases represented by Legal Aid staff/duty counsel only two percent were remanded for reasons related to getting legal aid or a lawyer.

If these results were to apply when data from a larger sample of case/appearances were obtained, then they would certainly indicate that remands to obtain legal assistance were not a significant source of delays.

c. Elapsed time for cases to resolve

Given the nature of the database, it was not possible to address the question of how many weeks or months it takes to resolve cases.

[50] Although not a focus of the study, it is worth noting that 15 of the 30 remands given to self-represented accused were because the accused had not been in attendance for the court appearance.  As noted earlier, for cases represented by Legal Aid staff duty counsel and by private counsel, a significant percentage of remands (24 percent and 25 percent, respectively) were to get disclosure.

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