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

Chapter 6: Bathurst, New Brunswick (continued)

6.4 Evidence on the impacts of lack of representation

6.4.1 Perceived impacts of a lack of representation

a. Impacts on the accused

In general, our key informants in Bathurst were of the view that, with the possible exception of unrepresented accused, who did a poor job representing themselves, there were few adverse impacts on the accused as a result of their lack of representation. In general, judges were reported to compensate for the accused's lack of representation by providing explanations where necessary. Some key informants believed that not being represented may even work to the benefit of some accused.

On the other hand, some interviewees suspected that there were significant numbers of accused who simply pled guilty because they did not have legal representation. These accused thus ended up with a criminal record when it may have been avoided. As well, some interviewees noted that unrepresented accused tended to be more dissatisfied with their legal process than accused who had representation. They often felt that the system worked against them, and they tended to have a heightened sense of persecution.

The most serious and common error committed by unrepresented accused, according to interviewees, was taking the stand. Unrepresented accused who took the stand often proved the Crown's case. Other mistakes made by unrepresented accused include:

  • Unrepresented accused pled guilty too early in the process.
  • Unrepresented accused couldn't objectively assess the facts of the cases against them – did not know when to cut bait, deal.
  • Unrepresented accused didn't know how to bargain, or properly present their defence.
  • Unrepresented accused didn't know the "going rate" for sentences.
  • Unrepresented accused didn't know the "best" judges.  
  • Unrepresented accusedadmitted to things that were not helpful to their cases.
  • Unrepresented accused made poor tactical decisions, and couldn't objectively assess prospective risks.
  • Unrepresented accused tried to shift the blame elsewhere, making it appear that there was a lack of remorse on their part. Blaming the victim is generally not looked upon favourably by judges.
b. Impacts on the court

Judges in Bathurst typically made considerable efforts to explain the process to unrepresented accused and to try to guide them through their points of choice.  This was both time-consuming and placed the judges in the uncomfortable position of seeming to "bend over backwards" to assist unrepresented accused when their function is to independently try the facts of the case. From the Crown's perspective, the judge begins to act as the acccused's lawyer – a situation that makes everyone uncomfortable.

Court personnel reported that, in some instances, unrepresented accused sought help or advice from court personnel on how to proceed with their case. This put the court administration in an awkward position, because they are supposed to remain impartial.

All interviewees agreed that the legal process was much slower when an unrepresented accused was involved.  Specifically, judges took the time to explain the process to the accused in order to ensure that the process was as fair as possible.  Some interviewees estimated the process to take one and a half to two times as long.  Judges reported being put into an awkward position in such trials because they were forced to explain the process to the accused and at the same time remain objective.  Judges reported having to:

  • Explain what was happening as the process unfolded.
  • Outline the options available to the accused.
  • Protect the rights of the accused.
  • Call recesses in order to allow the accused to prepare.

One Crown reported that unrepresented accused had a tendency to want to discuss their case with the Crown. However, the Crown is not permitted to discuss the case with the accused, something the unrepresented accused often can't understand.

6.4.2 Empirical findings regarding the impacts of a lack of representation

The preceding section described the perceptions of those interviewed regarding the impacts of accused appearing before the court without representation.  In this section we provide empirical evidence on what actually happened to unrepresented accused, using data on cases in the disposed cases file and from the appearances directly observed in court. 

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.

a. Type of plea entered by type of representation

As noted earlier, a number of interviewees raised the issue of whether or not unrepresented accused were more likely to plead guilty – for instance, to "get it over with," or because they had neither the knowledge nor resources to contest the charges.

Figure B-4 displays the plea entered by the type of representation available to the accused at that appearance. These data indicate that:

  • Of all pleas, 76 percent were guilty pleas.
  • Guilty pleas were entered in 90 percent of cases represented by duty counsel. This was almost exactly the same proportion as the guilty plea rate of unrepresented accused.
  • Cases represented by the private bar were much less likely to involve a guilty plea (63 percent). These may include certificates.
Figure B-4. Distribution of Type of Plea Entered by Type of Representation at Plea Appearance, Bathurst *
Plea Proportion of all Pleas by or on behalf of Accused Represented by Number of Cases Proportion of Cases
Self % Duty Counsel % Private Counsel%
Guilty 87 90 63 214 76%
Not guilty 13 10 37 69 24%
Total Cases 100 100 100 283  

Notes* Excludes cases for which representation at plea was unspecified in the file.

b. Conviction rates by type of representation

The Disposed Cases database enabled an analysis of conviction rates in terms of representation at final appearances.

Figure B-5 shows conviction rates by representation at final appearance.  These data show essentially no variation in conviction rates across types of representation. More specifically:

  • Overall, 95 percent of all disposed cases resulted in a conviction on one or more charges.
  • The conviction rates were 96 percent for accused who were self-represented, 96 percent for accused assisted by duty counsel, and 94 percent for accused represented by private counsel.
Figure B-5. Distribution of Disposition by Type of Representation at Final Appearance, Bathurst
Disposition Proportion of Dispositions For Accused Represented by Number of Cases Proportion of Cases
Self % Duty Counsel % Private Counsel %
Convicted* 96 96 94 236 95%
Not Convicted** 4 4 6 12 5%
Total Cases 115 28 105 248  

Notes 

  • *  Includes guilty verdict and peace bond ordered.
  • **  Includes not guilty, withdrawn, dismissed, stayed, and discharges

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 are very likely to experience serious negative impacts as a result of the court process (but no more likely than accused assisted by duty counsel or private counsel).

c. Custodial sentence and type of representation

The proportions of cases that resulted in custodial sentences were examined in terms of representation at the final appearance.

Figure B-6 shows the distribution of custodial sentences for cases disposed at final appearance, by type of representation. These data indicate that:

  • Overall, 25 percent of all disposed cases resulted in a custodial sentence.
  • Unrepresented accused fared best of all (9 percent custodial rate), while cases finalized with duty counsel had the next highest imprisonment rate (21 percent), followed by cases with private counsel (32 percent).
Figure B-6. Distribution of Custodial Sentence by Type of Representation at Final Appearance, Bathurst
Sentence Represented by Number Of Cases Proportion of Cases
Self % Duty Counsel % Private Counsel %
Custodial Sentence 9 21 32 51 25%
No Custodial Sentence 91 79 68 201 75%
Total Cases 100 100 100 252 100

Again we caution against using these data to imply a causal connection between type of representation and likelihood of receiving a custodial sentence.  However, the results are directly relevant from another important perspective. Specifically, it is accepted that eligibility for legal aid should depend (in part) on the sentence that the Crown is likely to request as a penalty.  Although one cannot expect to predict with total accuracy whether a case will result in a custodial sentence, it is relevant that custodial sentences were received by approximately one in ten self-represented accused. The data do not reflect reduced sentences.

6.4.3 Overall impacts on court operations

a. General

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 elsewhere in this report, in Bathurst (as in other courts) these appearances are typically in the order of a few 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 confirmed that efforts were often made in the courtroom to make unrepresented accused aware of the opportunities and benefits of having a lawyer. In 66 percent of appearances by unrepresented accused, comments were made by judges concerning representation.  In these appearances, the judges asked the accused about his or her representation status, or instructed the accused to speak to duty counsel, get a lawyer or apply for legal aid.

b. Nature and length of individual court appearances

Interviewees noted that the efficiency of the entire system was much greater when the accused was represented – "wasted" appearances were reduced, useless discussions and arguments were largely eliminated, and work was concentrated on what is relevant. 

The Court Observation data also yielded some information about how many interim (i.e., not final) 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 B-7 shows the breakdown of courtroom events (or non-events) at interim (not final) appearances, according to representation status at last appearance.

Figure B-7. Court Observation Data: Percentage Distribution of Cases: Type of Decision Made by Accused's Representation Status At Interim (Not Final) Appearances, Bathurst*
Representation Status Type of Decisions at Interim Appearance (Remanded or Stood Down)
** No decision % Plea entered and/or election made – no bail % Total number of Cases
Self 16*** 84 32 (100%)
Duty counsel 34 66 29 (100%)
Private lawyer 3 97 38 (100%)
Total Appearances 16 83 99 (100%)

Notes:   

  • * Appearances for which data were unavailable or unclear are not included.
  •  **  Bail not considered, no elections made by either Crown or defence, and no plea entered.
  • *** May involve adjournments to allow application for legal aid.

One of the most striking observations is that, overall, only 16 percent of interim appearances in cases in which the accused was unrepresented occurred without consideration of bail, elections, or the entering of a plea.  However, appearances that were, in that sense, "unproductive," were most frequent when the accused was represented by duty counsel (34 percent), compared to only 3 percent of interim appearances where the accused was represented by a private lawyer.

Most of our key informants appeared to agree that unrepresented accused slowed down the court process, since they did not benefit from the skill that an experienced lawyer would be able to apply to move the process along expeditiously. The court observation also yielded data on the length or duration of individual court appearances. Figure B-8 summarizes these data by representation type. The general conclusion supported by these data is that appearances by self-represented accused were typically longer in duration than were appearances for accused assisted by duty counsel, but of similar duration to appearances involving private counsel.

Figure B-8. Distribution of Appearance Durations (in minutes) By Type of Representation at Final Appearance, Bathurst
  2 Appearance Duration (in minutes) when Represented by
Self 3Duty Counsel Private Counsel
25th Percentile 1.0 0.0 1.0
1 Median 3.5 1.0 3.0
75th Percentile 6.8 2.3 6.0
95th Percentile 6.7 6.4 14.6
Total Appearances 32 30 43

Some specific perceptions reported by our key informants, on the impacts of unrepresented accused on the duration of court proceedings, included:

  • Unrepresented accused didn't know to admit evidence so more witnesses and evidence were called than would be the case if a lawyer was involved.
  • Unrepresented accused wouldn't know to narrow issues, so trials took longer. 
c. Number of appearances per case

Some of our key informants suggested that unrepresented accused often "tied up the system" and caused lost court time through "wasted appearances." Virtually all agreed that the system moved more efficiently when the accused was represented.  Adjournments for and failures to appear by unrepresented accused wasted a great deal of court time.  Cases that "collapsed" and resulted in a plea of guilty on the day of trial were very costly also.

A direct indicator of the workloads caused by – and resources required to deal with – individual cases is the number of court appearances required to complete a case. A related indicator is the appearance number at which key activities take place. The Disposed Cases sample yielded information on the number of appearances made by accused who were or were not represented. 

Appearances before a Plea is Entered

Figure B-9 shows the appearance number at which the plea was entered for accused who had various types of representation.  The data suggest that self-represented cases in general did not generate more appearances before entering a plea, especially in comparison to cases handled by private counsel:

  • Half of self-represented accused, and accused assisted by duty counsel entered their plea at their first appearance.
  • Half of accused represented by private counsel did not enter a plea until their third appearance or later.
Figure B-9. Distribution of Appearance Number at Which Plea was Entered By Type of Representation at Plea Appearance, Bathurst
Appearance Number at which Plea was Entered Represented by
Self Duty Counsel Private Counsel
25th Percentile 1 1 2
Median 1 1 3
75th Percentile 2 1.25 4
95th Percentile 4 3 5
Total Cases 95 38 98

Notes * If plea entered at more than one appearance, last appearance at which plea entered is shown.

Total Number of Appearances before Disposition

Figure B-10 shows the total number of appearances in the case – according to representation type at last appearance.  These data suggest that self-represented cases did not take more court appearances overall, especially in comparison to accused represented by private counsel.  More specifically:

  • Half of accused unrepresented at last appearance made only one or two appearances compared to those with private counsel, 50 percent of whom made at least four appearances.
  • Accused assisted by duty counsel typically made the fewest appearances, with 50 percent making only one appearance.
Figure B-10. Distribution of Number of Appearances in Case By Type of Representation at Final Appearance, Bathurst
Number of Appearances Represented by
Self Duty Counsel Private Counsel
25th Percentile 1 1 3
Median 2 1 4
75th Percentile 3 2 5
95th Percentile 5 5.6 7.6
Maximum 6 6 9
Total Cases 116 28 107
d. Elapsed Time for Cases to Resolve

The Disposed Cases sample also yielded information about the time elapsed between the first and last appearance.  This information is important from a due process perspective – however, that perspective yields two potential hypotheses: first, "Justice delayed is justice denied," and second, "Justice rushed is justice crushed."[54]   The first concern is relevant to those who feel that delays in obtaining legal representation adversely affect the fairness of the court process and the final outcome.  The second concern is especially relevant to those concerned that unrepresented accused may plead out the case early "to get it over with," or because they are not aware of viable legal defences.

As shown in Figure B-11:

  • Cases represented at last appearance by duty counsel took the least time to resolve – 50 percent were settled in two weeks or less, and 75 percent were settled in nine weeks or less.
  • Cases self-represented at last appearance took considerably longer, with 50 percent settled within 6.8 weeks, and 75 percent settled within 12.4 weeks.
  • Cases represented by private counsel at last appearance took the longest time to be resolved with 50 percent settled within 13.2 weeks and 75 percent settled within 18 weeks.
Figure B-11. Distribution of Time (in weeks) Between First and Final Appearance By Type of Representation at Final Appearance, Bathurst
  Time (in weeks) between First and Final Appearance when Represented by
Self Duty Counsel Private Counsel
25th Percentile 2 1.6 6.6
Median 6.8 2 13.2
75th Percentile 12.4 9 18
95th Percentile 22.7 - 39
Maximum 52 17 76
Total Cases 60 11 100

[54] The latter phrase was first suggested to one of the authors by a widely respected colleague, Carl Baar.

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