Chapter 8: Kelowna, British Columbia - Overall conclusions - Court Site Study of Adult Unrepresented Accused in the Provincial Criminal Courts (Part 2: Site Reports)

Chapter 8: Kelowna, British Columbia (continued)

8.5 Overall conclusions

8.5.1 Key overall findings

Our key findings with respect to the questions addressed by this 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 on the accused

  • 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 therefore unlikely to understand many key decisions and events in the process.
  • Accused represented by private counsel enter guilty pleas less often than do accused who either represent themselves or are assisted by duty counsel.
  • Rates of conviction are lower for accused who represent themselves, or are represented by private counsel, than is the case for accused assisted by duty counsel.
  • 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
  • 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 legal representation.  Nevertheless, a significant number of unrepresented accused suffer serious penalties or deprivations of liberty as a result of their court case. Some 71 percent receive a criminal record and a smaller, but still significant proportion (in the order of 11 percent) receive custodial sentences.

With respect to impact on the court

  • Many judges, as well as other court officials, respond to the presence of unrepresented accused with efforts to reduce the impact on accused persons of their lack of representation. Some such efforts may appear to threaten the impartiality of the judicial role.
  • Self-represented accused and those assisted by duty counsel make fewer court appearances than do accused represented by private counsel. For duty counsel, this reflects the fact that they do not handle trials.
  • Cases where the accused are assisted by duty counsel are of shorter overall duration than are cases involving self-represented accused or accused represented by private counsel (which typically take the longest times). Again, for duty counsel, this reflects the fact that they do not handle trials.
  • Individual appearances by self-represented accused, in first appearance and arraignment courts, are similar in duration to appearances with private counsel, and somewhat shorter in duration than are appearances for accused assisted by duty counsel.

8.5.2 General reasons for the current situation regarding unrepresented accused

There was general agreement among our key informants that most unrepresented accused in Kelowna were individuals who applied for legal aid, but were refused for either financial or coverage reasons, and who found private counsel to be too costly. In this regard, several interviewees noted that the financial eligibility cutoff was very low.

Many of our interviewees in Kelowna commented on the (then-) recent and forthcoming reductions in legal aid services.  In particular, the availability of duty counsel was described by some as "inadequate."  Whereas there used to be two duty counsel (one for accused in custody, and another for accused not in custody), plus the staff "public defender," there was no longer a full-time staff lawyer position providing representation (as opposed to part-time duty counsel). Even with the previously higher resource level, the service provided by duty counsel was described by some as "rudimentary," and it has become more strained since the cuts were introduced.

Duty counsel coverage was not complete across all days of the week, and was limited to four hours a day (for per diem services). The use of several different lawyers to cover duty counsel was seen as militating against service continuity. Duty counsel were seen as being less available than they were in the past to assist in arraignment court with guilty pleas. The valuable capacity of duty counsel to meet with accused not in custody, to discuss diversion and assist with guilty pleas, was being stretched. Some saw duty counsel as doing little more than "quicky" interviews with accused, scanning their files, and (perhaps) disposing of some cases inappropriately. Finally, some per diem duty counsel days were being taken by out-of-town counsel, who, by nature of that fact, were not routinely available in Kelowna.

On the positive side, the time available to duty counsel to meet before court with accused in custody was described as adequate. As well, duty counsel were generally able to speak to the Crown about accused in custody before their bail hearings.

While the quality of the representation provided by the former BCLSS "public defender" was described as being very high, there was less comfort with the services provided by the private bar on referral. To some considerable degree, these concerns arose from the view that the tariff was inadequate, especially for legal aid clients (who might be relatively demanding) and for more complex cases. One interviewee believed that some successful applicants for legal aid were not able to find a private lawyer willing to take their referral (due to the block fees) if the case was likely to be time-consuming.

Some interviewees saw the criminal legal aid bar as increasingly composed of the more junior and inexperienced lawyers. This was attributed to the perception that fewer and fewer lawyers were taking referrals, and that fewer and fewer lawyers were practising criminal law.

8.5.3 Solutions suggested by our key informants

Our key informants in Kelowna offered the following suggestions for reducing the numbers of unrepresented accused. It should be noted that reluctance on the part of the private bar to take legal aid referrals (complex cases excepted) was not generally seen as a major problem in Kelowna.

  • Expand the "public defender" service (meaning representation by staff lawyers, including at trials), and assign more resources to the "front-end" for more clients, i.e., case assessment and early advice.
  • Introduce incentives into the tariff for early resolution.
  • Crowns could assist unrepresented accused by indicating as early as possible whether or not incarceration would likely be sought, so that they could better assess their chances of being eligible for legal aid.
  • Expand PLEI programs aimed at informing people facing criminal charges, as well as the general public, about legal aid and the consequences of convictions. 
  • Expand the availability of in-custody duty counsel.
  • Broaden eligibility for legal aid.
  • Expand the scope of duty counsel services to encompass examination of disclosure packages (this is currently part of services for accused not in custody).
  • Expand the scope of duty counsel to include conducting trials.  
  • Raise the legal aid tariff. For judicare to work, the tariff must be adequate. Private bar interviewees were not in favour of a public defender model. They did not see that model's incentives encouraging either quality or productivity.
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