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

Chapter 6: Bathurst, New Brunswick

6.1 Objectives and methodology

The Department of Justice and the Federal-Provincial-Territorial Permanent Working Group on Legal Aid engaged the research team to measure:

  • The frequency with which accused persons are appearing before the court without representation – at different stages of the court process.
  • The impacts of self-represented accused – on themselves, on other groups involved in the court process, and on the courts in total.

The methodology for the Bathurst part of the national study followed a strategy for data collection and site visits similar to that followed in the other sites.

The methodology involved data collection and site visits.  Information was available on the question of unrepresented accused from three sources: 

  • A Disposed Cases sample.  This was created for the project, containing key data, including representation, on all appearances for a total of 252 cases which were disposed in late 2001.
  • Direct  Observation of 151 appearances in arraignment/first-appearance court over seven days during May and June of 2002; trial courts were not observed.
  • Interviews with key informants (judges, Crowns, legal aid staff and management, court administrators, private bar members, local service agencies, etc), whose anonymity was assured. 

Throughout this project, we received excellent co-operation and assistance from all those we asked to participate.  We also gratefully acknowledge the very able assistance and expertise of the Bathurst-based researcher who assisted in observing in court and in creating the Disposed Cases file.

6.2 Context of the court and legal aid

One of the major conclusions of this research – supported by the data from all sites – was that data on the extent of legal representation in a particular court cannot be interpreted out of the context of (at least):

  • The type of community served (including the nature of accused persons brought before the court).
  • The resources and management and operations practices in place in the courts.
  • Legal aid policies and practices.
  • 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 four of the above areas.  Information on the fifth is contained throughout the report.

6.2.1 The community

Bathurst is a small municipality in northern New Brunswick, on the Bay of Chaleur, near the Gaspé Peninsula. It originally served as a trade centre for the surrounding region. Traditional industries include farming, fishing, mining, and pulp and paper. The area was settled by both the British and Acadians, and remains strongly bilingual: each official language is spoken in the home by close to 50 percent of the population.

In 2001, the population of Bathurst was 12,924, which represented a decrease of 6.4 percent from the 1996 population of 13,815. This was a greater percentage decrease than that reported for the province of New Brunswick as a whole (the provincial population decreased by 1.2 percent in the same period). The population of Bathurst included a comparatively high proportion of females over the age of 65 (15 percent). Approximately 21 percent of males and 19 percent of females in Bathurst were in the 15-to-29 age range associated with the highest rates of crime. The population density of Bathurst was 141.2 per square kilometre.

In 2001, the average total income of persons 15 years and older was $20,664, slightly lower than the provincial average income of $20,755. The average household income for Bathurst in 2001 was $45,000 (compared to $46,100 for New Brunswick as a whole) and the per capita income was $17,900, almost the same as the province's $17,800.

The unemployment rate in 2001 for the city of Bathurst (13.6 percent) was higher than that of the province of New Brunswick as a whole (9.6 percent).  About 13 percent of males and 10 percent of females were unemployed in the province, very similar to the figures for Bathurst, at 13 percent for males and 9 percent for females.

Of the population of Bathurst aged 25 years and over, 18.8 percent reported less than a Grade 9 education (19.9 percent of females and 17.7 percent of males). The same trend was apparent in provincial statistics, although percentages were slightly higher overall (19.4 percent). Just over 60 percent of residents of the city of Bathurst reported having a high school certificate or higher, a similar proportion to the province as a whole.

In 2001, about 14 percent of Bathurst's estimated 7,750 families were single-parent, which is the same as the percentage for New Brunswick as a whole.

Of the estimated 10,105 occupied private dwellings in Bathurst in 2001, 72 percent were owner-occupied. The provincial rate was 74 percent for the same year.

For the year 2001, Bathurst reported 2,285 total person, property, and other Criminal Code offences (2,129 actual offences). This was a decrease from the previous year, when there were 2,371 reported Criminal Code offences (2,239 actual offenses). There were 105 reported drug offences in 2001 (up from 37 the previous year), and 18 reported "other federal statute" offences (compared to 13 in the previous year).

6.2.2 The court

The Bathurst courthouse handles approximately 3,600-4,000 criminal cases (both adult and youth) per year. For accused in custody, first appearance is always within 24 hours of arrest (this is consistent throughout New Brunswick). For accused in custody, trials are scheduled approximately 30 days after first appearance. For those accused who are not in custody, the first appearance is usually within one week, and the trial or hearing date in approximately three months. The courtrooms hearing criminal matters are described in the following chart.  Three courtrooms are typically required for Provincial Court cases.

One arraignment/first appearance courtroom (plea day) (Provincial Court only) Sits one day per week Courtrooms handle both adult and youth Do not split drugs and CCC
Trial courtroom (same as above – for other criminal matters, e.g., preliminary hearings and trials) Sits rest of week hearing Provincial Court cases
Second courtroom Sometimes used for overflow of Provincial Court cases
Three additional courtrooms Queen's Bench criminal, civil and family matters for the districts of Bathurst and Tracadie-Sheila
Circuit Courts None

6.2.3 The legal aid system

The legal aid system in New Brunswick is regulated by the Legal Aid Act and the Regulations under that Act. The Act provides for the structure as well as the operation of the Plan. It provides for the Law Society of New Brunswick to establish and administer a Plan known as Legal Aid New Brunswick. While the legislation provides for the establishment of legal aid services in both criminal law and civil cases, presently, legal aid services are being offered only in criminal and family law matters.

In criminal matters, eligibility is limited to those who meet the financial eligibility criteria, who face charges that carry the risk of jail time or loss of means of earning a livelihood upon conviction, and who have not received services through Legal Aid on more than two occasions within the previous two years. Further, Legal Aid New Brunswick  requires a financial contribution on the part of eligible clients. The client's financial contribution is means-tested.

Applications for legal aid are made directly at Legal Aid New Brunswick offices. Usually applications are processed immediately – there is virtually no waiting period. Once applications have been assessed, a certificate is issued to the client. Clients are able to take their certificate to a lawyer of their choosing. There is no evidence that clients in receipt of a certificate experience any difficulty in finding a lawyer to accept their case. Quite often the client has been sent to the Legal Aid New Brunswick office by the duty counsel who provided assistance to the client at the client's first appearance.

Legal aid lawyers are paid on an hourly basis up to a maximum amount of approximately $25,000 per case, subject to discretion. Lawyers submit their bills to Legal Aid New Brunswick, which reviews the billing and then pays 60  percent of the fees owed, plus any disbursements.  The remaining 40  percent of the fees are not paid until fiscal year end. Lawyers only receive the full amount owing if Legal Aid New Brunswick does not have a deficit. The 40  percent hold-back has always been paid in full, although in the following year in one instance.

6.2.4 Duty counsel

Under the Criminal Law program, Legal Aid New Brunswick offers duty counsel services. This provides accused persons with the opportunity to consult with legal counsel prior to their first appearance. Duty counsel are available on "first appearance day," which is every Monday in Bathurst. At the time of our site visit, there was a roster of fourteen private lawyers doing legal aid work and also serving as duty counsel on a rotating basis.

Current duty counsel are all highly experienced members of the bar, with the most junior member having between five and ten years of experience. Two of the lawyers have over 15 years of experience practising criminal law.

Duty counsel provide assistance regardless of eligibility for legal aid, in order that any accused may have the opportunity to consult with a lawyer prior to his/herfirst appearance.

However, duty counsel is not available to accused beyond the first appearance. If an accused individual requires legal assistance after first appearance, the duty counsel will advise the accused to apply for legal aid. However, one duty counsel noted that this can be a frustrating issue for the duty counsel, because, in some cases, they know in advance that the individual is unlikely to get a certificate from Legal Aid. 

There is some continuity of service in that, according to interviewees, quite often accused who are assisted by the duty counsel will apply for a Legal Aid certificate on the advice of the duty counsel. The accused will then use the certificate to retain the lawyer who served as duty counsel at their first appearance.  Lawyers who do duty counsel work generally do legal aid work on a regular basis, and have put their names forward as being available for duty counsel work. They are paid the same hourly rate as for other legal aid work.

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