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

Chapter 6: Bathurst, New Brunswick (continued)

6.5 Overall Conclusions

6.5.1 Key Overall Findings

Our key findings with respect to the key questions raised by the study include:

With respect to frequency of self-representation

  • A significant number of accused adults in Bathurst proceed through key parts of the criminal court process without the benefit of legal representation. It is the view of Legal Aid New Brunswick that some accused may be unrepresented because of informed choice.

With respect to impact on the accused

  • Accused represented by private counsel enter guilty pleas less often than do accused who either represent themselves or are assisted by duty counsel. This may include certificate work.
  • Rates of conviction do not vary by type of representation. The rates of conviction may be greater for charges on more serious matters.
  • Accused who represent themselves are less likely to receive custodial sentences than are accused who are assisted by duty counsel or represented by private counsel. This does not account for seriousness of offences.
  • The evidence is insufficient to conclude whether or not self represented accused are more likely to be convicted or to receive harsher sentences as a result of their lack of representation.
  • A significant number of unrepresented accused suffer serious penalties or deprivations of liberty as a result of their court case.  Some 96 percent receive a criminal record and a smaller, but still significant number (in the order of 9 percent) receive custodial sentences.
  • Interviews with key officials strongly suggest that unrepresented accused (especially those with little prior experience in the court system) are less likely to be aware of the legal remedies available to them at key stages in the process – and are unlikely to understand many key decisions and events in the process.

With respect to impact on the court

  • Judges often make efforts to encourage unrepresented accused to obtain counsel.
  • Unrepresented accused typically make fewer, and shorter court appearances than do accused with private counsel.

6.5.2 General Reasons for Current Unrepresented Accused Situation

The existence of unrepresented accused in Bathurst was attributed by the majority of interviewees to inadequate funding for legal aid. The current budget has forced Legal Aid New Brunswick to tighten the criteria for eligibility for legal aid, thereby denying legal aid to some accused. In general, interviewees feel that the criteria are too strict, particularly the limit on the number of certificates that may be granted within a two-year period and the requirement that there be a risk of jail time.

Despite concern over the number of unrepresented accused, there is a sense that the problem is not more severe as a result of:

  • Judges' and Crowns' strong encouragement for those arriving at court without representation to get representation. Judges may avoid setting a trial date until the accused has a lawyer.
  • Proceedings being delayed in order that the accused may seek representation.
  • Pro bono work done by lawyers in situations where the accused has been denied legal aid and lacks the financial means to pay for representation.

Most interviewees believe that the legal aid system in New Brunswick is not functioning as well as it should be. This is generally blamed on the lack of adequate funding. The key problems cited by interviewees include:

  • Legal aid lawyers are paid significantly less than Crowns with comparable experience. Provincial Crowns and temporary Crowns are paid a maximum of $100 per hour, while legal aid lawyers are paid a maximum rate of $60 per hour. In addition, 40 per cent of the hourly rate paid by Legal Aid is held back until the end of the fiscal year. This amount is then paid based on the year-end financial results of the Legal Aid program. If there is a shortfall, then legal aid lawyers get less that the full amount owed at the end of the year.
  • Preparation time for duty counsel was reported to be inadequate in most cases. The time to discuss the case, review relevant documents and explain the accused's options, and the implications of these options, is considered inadequate by duty counsel interviewed. One duty counsel referred to this as the "fast food" of legal representation.

6.5.3 Suggested Solutions

Staff system or combination of staff and certificate.  Most interviewees believe that either a staff system or a combination of staff and certificate would decrease the number of unrepresented accused. A few interviewees disagreed, believing that a staff system would bureaucratize the legal system. Few interviewees support a purely staff system because it is felt that this would eliminate, or at least sharply curtail, the extent to which accused are able to exercise choice of counsel.

Increasing funding to the legal aid system.  This would allow for more flexibility in the eligibility criteria for legal aid, and it would allow for higher rates to be paid to legal aid lawyers, thereby increasing the number and quality of lawyers accepting legal aid cases.

Additional time with duty counsel for unrepresented accused.  In situations where an accused is not eligible for legal aid, a system should be set up whereby these individuals are provided with an hour or two of time with duty counsel to review their case and discuss options. This approach was implemented in family law, where the $43 per hour fee was charged to the courthouse. This system is believed to have worked well for the clients, and saved the courthouse money by reducing the number of delays and adjournments.

Increasing awareness among accused of the availability of duty counsel.  Some key informants believe that not all unrepresented accused are even aware of the existence or availability of duty counsel. Efforts to increase the "visibility" of duty counsel might be of assistance to some of these accused, particularly in the larger courts.

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