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

Chapter 9: Scarborough, Toronto, Ontario (continued)

9.2 Context of the court and legal aid

9.2.2 The court

a. Scheduling of cases

Figure SC-1 highlights the key features of the courthouse and the case scheduling practice during our sites visits in July 2002.  Since September 3, 2002, all first appearances have been combined with the set date court for adults. 

Figure SC-1. Highlights of Scheduling of Cases in Scarborough
Ten criminal courtrooms in total Nine adult courtrooms One (No. 408) for young offenders
One full-time first appearance adult court Courtroom 406 Also hears pleas and set dates Hears first appearance of accused not in custody in the afternoon
An additional adult set date court Courtroom 407 Sits in mornings
One adult bail court Courtroom 412
Two courts for adult "specials" Courtrooms 403 (one-day trials) and 405
Four adult trial courts Courtrooms 404, 409, 410 and 411
Other Special Purpose Courts (e.g., drug court) None
Circuits None
b. Special case/case-flow management concerns

The Scarborough court is facing backlogs of at least eight months (and frequently a year or more) for trials of out-of-custody cases and four months for cases involving pre-trial detention.  Other indicators of numbers of appearances per case, time per case and court delays are presented later in this report.

The court has made attempts to improve the case and case-flow management policies and practices.  For instance, the Crown is available (in a room called "the Cave") to discuss upcoming cases with duty counsel and other defence lawyers, and Judicial Pre-trials are held as well (but only to a limited degree in open court for unrepresented accused).  The court also has an operations committee that meets regularly to discuss court practices.

9.2.3 Legal aid

Legal aid in Scarborough is delivered by Legal Aid Ontario, an independent agency reporting to a board of directors.  Service is provided through a system of staff duty counsel and certificates issued to the private bar through a local area office. 

The nearest area office for accused in Scarborough is located in an adjacent part of the shopping mall that houses the courthouse.  Applications for legal aid must be made in person, without appointment.  Delays for the legal aid application and approval process in Scarborough have recently been reduced by the creation of additional interview rooms for reviewing the accuseds' applications and documentation.  Currently, a certificate normally will be issued within two weeks or less, once all documentation is received.

For the province as a whole, 48,730 adult criminal Legal Aid certificates were issued in fiscal 2001/2002 – a figure that was 21 percent of the number of adult persons charged.  Although separate data was not available for Scarborough, 13,281 Legal Aid certificates were issued in Toronto – a figure that was 29 percent of the number of persons charged.

9.2.4 Duty counsel

The original concept of the use of duty counsel in Ontario called for the use of duty counsel or certificate counsel for serious matters (likelihood of jail) where a guilty plea was entered, and duty counsel service for minor matters where a guilty plea was entered.  Trials were to be handled through certificate for serious matters and for minor matters if there was a defence considered to have merit.  That original model holds today, with the exception that trials for minor matters are no longer covered by legal aid, except that duty counsel may "in very rare circumstances" handle a "very quick" trial requiring little or no preparation time.

In Scarborough, the majority of duty counsel service is delivered by a team of six lawyers who are on three-year renewable contracts with Legal Aid Ontario.  (Scarborough also has a number of "per diem duty counsel," who do piecework, including "specials" – cases with a mental health aspect.)  At the entry level, duty counsel are paid about $12,000 less than Crown attorneys.  The disparity in salary levels between duty counsel and Crown attorneys increases with years of experience. The difference in salaries between the two groups can be as much as $40,000 for the most experienced lawyers.  As a result of these (and possibly other) factors, duty counsel at the Scarborough court are all junior lawyers, with the exception of the Duty Counsel Supervisor, who (like other Supervisors in the province) is very experienced in this and other courts, and in trial work.  With the exception of Supervisors, those hired into duty counsel positions are often just recently out of law school.

Duty counsel must perform a brief financial eligibility test on adult accused (unless they are in custody, in which case duty counsel may assist with whatever processes occur, with the exception of trials, and regardless of financial eligibility).  If the accused is out of custody and does not qualify financially, policy prohibits duty counsel from assisting them with trial (except in very rare circumstances), and from attending court and speaking to the matter for plea or sentence submissions.  Duty counsel do assist financially ineligible as well as eligible persons with plea negotiations, however.  Bail hearings for legal aid clients are, virtually without exception, conducted by duty counsel, since private bar members working on certificate take the view that the inadequacies of the tariff system do not permit them to "waste" two hours doing a bail hearing.  Trials can be conducted only by private bar members on certificate.  Duty counsel are assigned to specific courtrooms, so the same duty counsel will not follow a case from start to finish.  In theory, duty counsel are permitted to help unrepresented accused with plea negotiations on the day of trial, but all duty counsel will, in fact, be tied up in other courts (there is no floating duty counsel).

9.2.5 Disclosure

By agreement with Toronto police, disclosure is made available in 95 percent of the cases within six weeks for out-of-custody cases and two weeks for in-custody cases.  The policy is for the police to provide a copy to the Crown, and a second copy to be given to the accused at the first appearance.  The Crown also has a dubbing system to make copies of video- and audio-tapes.

In practice, however, there are problems with disclosure.  In bail court (because it often happens so soon after arrest), the synopsis is not always made available to duty counsel, and, in many cases, the duty counsel will be handed the Crown copy to read in the "two minutes" while the accused is being brought up from the cells.  Occasionally a judge may ask that duty counsel assist with the plea before the duty counsel has seen the disclosure.  In such cases, the duty counsel and the accused may read the disclosure together hurriedly during a pause in the proceedings; such occurrences are more common where the accused is in custody or where the accused wishes to plead guilty at first appearance. 

Although we did not specifically try to collect empirical data on the influence on court operations of the availability of disclosure, it is worthwhile noting that 11 percent of the requests for remand directly observed (in the non-trial courts) were "for disclosure or particulars."[75]

9.2.6 Other groups available to assist the accused

A number of services are available to assist accused persons and have offices within the courthouse – Mental Health Services, The Springboard Program, the Toronto Bail Program, the Salvation Army, and Interpreters.  In addition, Native Courtworkers are available, although they do not have offices in the Scarborough courthouse.

All provide valuable services to assist all accused (including the unrepresented accused).  Given the ethnic and cultural mix of the community, the interpreters are especially important.

Mental Health Services plays a special role in assisting accused persons with mental challenges.[76]  Of particular relevance for the current study is their role in assisting unrepresented accused to get legal aid.  Legal aid policy and practice make it very likely that persons with mental challenges will get either "normal" legal aid or the appointment of a "special duty counsel."[77]  However, these people require particular assistance in getting their applications together, since they are likely to be disorganized (e.g., they are simply missing bank books and records, or lack permanent residences and jobs).  Mental Health Services also links up with other services to provide psychological and case management support to the accused – and, in general, provides help through diversion, bail and other aspects of the court process.

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