Court Site Study of Adult Unrepresented Accused in the Provincial Criminal Courts (Part 2: Site Reports)
Chapter 7: St. John's, Newfoundland (continued)
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 proceed through key parts of the criminal court process without the benefit of legal representation.
With respect to impact
- Interviews with key officials strongly suggest that the 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.
- The evidence is insufficient to conclude whether or not self-represented accused are more likely to be convicted or to receive harsher sentences.
- A significant number of unrepresented accused suffer serious penalties or deprivations of liberty as a result of their court case. Almost 90 percent receive a criminal record, and a smaller, but still significant number (in the order of 20 percent) receive custodial sentences.
Interviewees who were able to speculate on the subject suggested the following key reasons for the unrepresented accused situation in St. John's (not all were mentioned or agreed to by all):
- The financial eligibility and coverage restrictions on legal aid leave little room to maneuver, and effectively exclude the working poor and those who are not likely to receive a jail term.
- Some accused "just want to get it over with," and plead guilty as soon as possible.
- Some accused (reportedly) decline the assistance of legal aid (see below).
- Others assume they will not be granted legal aid and do not bother to apply.
Among the solutions offered by individual interviewees were the following (not suggested by or agreed to by all):
- Hiring more Legal Aid staff lawyers, and reducing "bean-counter-type" administrative controls.
- Stronger professionalization, quality control and mentoring over legal work and more effective caseload management for legal aid.
- Higher salaries for Legal Aid staff lawyers, to attract good candidates.
- A mixed system of staff lawyers and certificate service.
- Making accused aware earlier of the availability of legal aid – and the procedures for applying for it (including what documents are needed). One possibility mentioned was that police would hand out printed information.
- Duty counsel-type coverage of all appearances after the first, to enable a case to be held down briefly while legal advice is provided. In fact, virtually all interviewees advocated placing a duty counsel in all courts (i.e., more than first appearance court) at times when they are dealing with non-trial appearances. Currently, this is from 9:30 to 10:00 in Courtrooms 1 through 6. Two scheduling problems would be presented by placing duty counsel in these courts at that time: Trials currently scheduled for 10:00 would have to start later, and there would be conflicts for staff lawyers, who routinely have to be in family court (in a different building) at 10:00. The majority of interviewees suggested that it was important for the courts, the Crowns and the Legal Aid Commission to find a way to organize their business in a way that would make duty counsel available to assist accused persons at subsequent appearances.
- Having a Legal Aid office in the courthouse, or at least closer to it and more plainly marked, to increase accessibility and visibility, and to reduce commuting time between the Commission offices and the courthouse.
- Eliminating or re-framing the "likelihood of jail" criterion, especially in cases where there is a "real issue deserving trial" – or the possibility of injustice to the accused.
- Relaxing the financial eligibility cutoffs.
- Having judges ask more rigourous questions of, and granting shorter postponements to out-of-custody accused who claim to be having difficulty navigating the legal aid approval process.
- Having the plea deemed after a certain number of unproductive appearances.
- A better court case management system, wherein all court parties would co-operate in the process of moving cases expeditiously through the system. (This would include expanded duty counsel service, having Crowns make their best offer at an early stage, and requiring Crowns to indicate before first appearance those cases where they will be seeking jail, ), so reducing useless appearances.)
Several interviewees noted that some of the suggested solutions would require a strong co-operative effort among all involved parties towards commonly agreed-upon goals. It was noted that the current priority initiatives and strategic plan established by the Minister of Justice and Attorney-General and the Newfoundland Department of Justice support just such a co-operative effort in some of the suggested areas. Our site visit occasioned discussions, on several fronts, of the usefulness of integrated action, possibly involving the results of this research as one building block within discussions towards such integrated strategies.
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