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

Chapter 8: Kelowna, British Columbia (continued)

8.3 Frequency of unrepresented accused

There was general agreement among our key informants in Kelowna that it was rare to see unrepresented accused at trial. Most accused facing serious charges would be able to retain counsel, one way or another.

The general view was that unrepresented accused were more often observed at earlier appearances than at trials. As many as half of all accused were estimated to appear at initial appearance court without counsel. Duty counsel was available at initial appearance court to assist these individuals. Often these accused would want to plead guilty with the help of duty counsel. It was estimated that perhaps 25 percent of accused in arraignment court were unrepresented.

While most key informants were uncomfortable estimating actual numbers of unrepresented accused, there was a general perception that these numbers were increasing, especially as the (then-) recently announced cuts to legal aid funding and services took effect.

8.3.1 Overview of representation

It was apparent from the Disposed Cases file that it was not possible to characterize representation over the life of a case in any simple manner. An accused's representation status would often change from one appearance to the next, as for example when an accused might be represented by duty counsel at the bail hearing, but be self-represented afterwards.

Looking at the pattern of representation over all appearances, our analysis of data from complete records of 1,020 cases completed in Kelowna Provincial Court in 2001 indicated the following.

  • At first appearance, 35 percent of criminally accused adults in Kelowna Provincial Court were unrepresented. An additional 42 percent used the services of duty counsel, and 23 percent had private counsel (or an agent).
  • At second appearance (if any), 29 percent of criminally accused adults in Kelowna Provincial Court were unrepresented. An additional 27 percent used the services of duty counsel, and 41 percent had private counsel (or an agent).
  • At third appearance (if any), 24 percent of criminally accused adults in Kelowna Provincial Court were unrepresented. An additional 20 percent used the services of duty counsel, and 53 percent had private counsel (or an agent).
  • At final appearance, 28 percent of criminally accused adults in Kelowna Provincial Court were unrepresented. An additional 24 percent used the services of duty counsel, and 48 percent had private counsel.
  • Private counsel represented 45 percent of criminally accused adults in Kelowna Provincial Court for at least one appearance.
  • Private counsel represented 13 percent of criminally accused adults in Kelowna Provincial Court for all of their appearances.
  • For all of their appearances, 17 percent of criminally accused adults in Kelowna Provincial Court were unrepresented by any counsel.
  • Duty counsel represented 15 percent of criminally accused adults in Kelowna Provincial Court at all of their appearances.

Readers should note that, throughout this report, references to "private counsel" encompass privately retained counsel, private counsel paid through a legal aid referral or certificate, and the Legal Aid staff lawyer. For the purposes of this study, we were not able to make these distinctions in our collection or analysis of either the Disposed Cases data or the Court Observation data.

8.3.2 Self-representation by category of offence and stage of process

Most of our key informants in Kelowna were of the view that the charges faced by most unrepresented accused were typically minor in nature. Some interviewees described these in terms of the four-level categorization used by BCLSS, where category one includes breaches and minor motor vehicle offences. The private bar was described as being reluctant to accept referrals of these cases, due to the low level of compensation under the tariff. Otherwise, the most frequently mentioned charges faced by unrepresented accused were reported to concern:

  • Impaired driving (especially first offences)
  • Family violence
  • Shoplifting
  • Mischief
  • Drug possession
  • Driving while prohibited
  • Breaches
  • Minor assaults
  • Environmental violations

These views were only partially supported by our analysis of the Disposed Cases sample. Figure K-1 indicates the proportions of accused at each appearance who were unrepresented, according to the offence category of the most serious charge in the case.

Figure K-1 indicates:

  • Accused persons facing charges of impaired driving were most often self-represented, followed by those charged with simple possession of drugs.
  • The proportion of accused persons who were unrepresented generally declined across appearances.
Figure K-1. Proportion of Accused who were Unrepresented At Various Appearances, by Most Serious Charge Category, Kelowna *
Most Serious Charge Category Proportion of Unrepresented Accused at Total Number of Cases
First (%) Bail (%) Plea (%) Final (%)
Homicide *** *** *** *** 6
Sexual Assault 31 0 33 25 13
Assaults excl. Common 23 9 20 24 87
Robbery *** *** *** *** 6
Break and Enter 33 17 15 18 41
Impaired Driving 62 20 55 51 92
Common Assault 30 8 34 28 68
Drugs excl. Simple Possession 36 21 11 27 47
Weapons Offences 32 17 20 32 19
Thefts and Frauds 41 10 29 31 251
Simple Possession of Drugs 46 0 45 39 57
Offences against Administration of Justice 24 16 15 17 268
Public Order 25 20 26 24 49
All Offences 35 13 28 28

Notes 

  • *  Excludes cases for which representation was unspecified in the file.
  • ***  The cell contains too few cases to report a percentage.

8.3.3 Socio-demographic characteristics of unrepresented accused

Few of our key informants were able to identify any demographic or other personal characteristics of accused persons they would associate with being unrepresented.  Individual interviewees suggested the following:

  • Most unrepresented accused had limited financial means, but nothing else distinguished them from other criminally accused adults.
  • Seasonal workers might be over-represented among unrepresented accused.

Persons with mental health problems were seen by some of our key informants as possibly over-represented because the private bar don't want them on referral, as they are time-consuming and may be associated with a greater risk of complaint.  On this same point, a second interviewee commented that there were very good services in Kelowna for accused with mental health problems.

Other types of representation

Figure K-2 displays the representation provided by counsel of various types at each stage of the criminal process. These data indicate that:

  • The majority of accused were either unrepresented or assisted by duty counsel at first appearance.
  • The proportion of accused persons with private counsel rose across appearances, while the proportion who were unrepresented, or assisted by duty counsel, fell.
Figure K-2. Distribution of Representation Type by Appearance
Type, Kelowna
Appearance Represented by Number of Cases
Self (%) Duty Counsel (%) Private Counsel (%)
First appearance 35 42 23 996
Bail 13 62 25 293
Plea 28 26 47 702
Defence Election 16 9 75 81
Final Appearance 28 24 48 981

Notes
Excludes cases for which representation information is not available.
Percentages may not total 100 due to rounding.

Figure K-3 shows the most serious offence charged in cases with different types of representation at the final appearance.  These data indicate that:

  • Persons charged with impaired driving were most likely to be unrepresented.
  • Persons charged with the relatively serious charges of assaults other than common assault, break and enter, drug offences excluding simple possession, and weapons offences, were most likely to be represented by private counsel.
Figure K-3. Distribution of Representation Status at Final Appearance By Most Serious Charge Category, Kelowna *
Most Serious Charge Category Proportion of Cases represented by Number of Cases
Self % Duty Counsel % Private Counsel %
Homicide *** *** *** 6
Sexual Assault 25 25 50 12
Assaults excl. Common 24 19 58 85
Robbery *** *** *** 6
Break and Enter 18 23 60 40
Impaired Driving 51 11 38 92
Common Assault 28 26 46 61
Drugs excl. Simple Possession 27 11 62 45
Weapons Offences 32 11 58 19
Thefts and Frauds 31 29 39 242
Simple Possession of Drugs 39 18 43 56
Offences against Administration of Justice 17 32 50 253
Public Order 25 18 55 49
All Offences 28 24 48

Note: Excludes cases for which representation at final appearance was unspecified in the file.

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