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

Chapter 9: Scarborough, Toronto, Ontario (continued)

9.7 Overall conclusions

9.7.1 Key overall findings

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

With respect to frequency of self-representation

  • Few accused proceed through the first appearance and bail processes without the benefit of legal representation, but a significant minority are unrepresented at plea and final appearance.
  • There appears to be a greater problem of under-representation for accused in the criminal court process, caused by structural limitations and procedural problems, particularly in bail court

With respect to impact

  • 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.
  • 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.  Some 50 percent receive a criminal record and a smaller, but still significant number (over 10 percent) receive custodial sentences.

9.7.2 General reasons for current unrepresented accused situation.

Interviewees who were able to speculate on the subject suggested the following key reasons for the unrepresented accused situation in Scarborough (not all were mentioned or agreed to by all).  Notably, finding private bar members to accept cases on a certificate was not considered to be a problem at the time of the site visit, although local bar associations have since announced plans for a strike over the low tariff.

  • The financial eligibility test, which some characterized as "ridiculously low," and which does not make special allowances for the higher cost of living in Toronto, as compared to the rest of the province.
  • Coverage restrictions on legal aid, which leave little room to maneuver and effectively cover only those for whom there is a "really strong chance (probability)" of receiving a jail term.
  • Some accused in the Scarborough court believe that if you are innocent, you do not need a lawyer.
  • Finally, some interviewees felt that, in general, many accused have no idea what is happening in court and what they have to do to get legal aid – in particularly what steps have to be taken before the next court appearance.

9.7.3 Solutions suggested by interviewees in Scarborough

All interviewees suggested it would be preferable if Legal Aid could accept more cases.  Most believed that structural limitations on the duty counsel function should be corrected.  Among the solutions offered by individual interviewees were the following (not suggested by or agree to by all):[88]

  • Accept that duty counsel is and will remain an essential, integral and specialized part of the system, and treat the function and the lawyers who perform it accordingly.  This would require:
    • Generally, practices that reflect the duty counsel function as a valued career track and demonstrate that lawyers who perform the duty counsel function well are welcome to remain in the position for long periods, the better to use their skills and experience.
    • Generally, enhancing the in-house Legal Aid staff duty function – for instance, by using it less as an entry-level function, by giving it more recognition as a specialized function requiring special expertise, by rotating senior lawyers through local staff duty counsel, and providing mentoring, training in specific areas, etc.
    • The use of staff positions instead of contracts for duty counsel work.
    • Compensation levels that are on a par with Crowns, and that will attract and keep senior, top-notch, experienced lawyers who are suited to the unique demands and critical importance of the job.
    • Salary increments that recognize years of experience in the position.
    • Allowing duty counsel to handle trials.
  • Reform of the tariff levels "to something better than an insult."
  • Speeding up and improving the process for submitting and considering applications for legal aid, including:
    • Having the police hand out a notice explaining availability of and procedures for applying for legal aid. (Translations would be required in Scarborough.)
    • Placing a legal aid application officer in the court in order to allow the matter to be held down and returned with a set date the same day.
    • Better empowerment for front-line Legal Aid staff.
    • Finding a way to get an earlier indication that the Crown will be seeking a custodial sentence.  Presently, the judge may ask in open court, or the duty counsel may go into the Crown's meeting room ("the cave") and inquire about cases coming up in the next few days.
    • Allowing Native Courtworkers to take, assist with the completion of, and process legal aid applications.
  • The use of "advice duty counsel" (the term used by the Commission on Systemic Racism in the Ontario Criminal Justice System), who would spend little time in courtrooms, but would be available in the courthouse to offer advice and explanations without being burdened so much by the requirements of their next courtroom appearances.
  • Extended duty counsel service, for greater continuity of service.
  • Provision of a "roving duty counsel" available to the trial courts.
  • Placing greater emphasis in the legal aid system, and in training, on the early stages of the criminal process and on sentencing.
  • Relaxation of the coverage criterion requiring a likelihood of imprisonment.  Some suggested this criterion be relaxed to allow all first offenders to receive legal aid in order to reduce unnecessary first convictions.
  • Relaxation of the financial eligibility limits or at least the living allowance for the Greater Toronto Area.
  • The use of "opinion letters" about whether there is an arguable defence, and granting legal aid if there is.
  • Reforms to bail court, including:
  • Calling the bail docket according to which cases are ready to proceed (when both Crown and defence are ready).
    • Allowing duty counsel in all cases to see all information available to the Crown at the bail stage so duty counsel can assess the strength of the case.
    • Reducing the high number of adjournments by permitting cases to be held down to later in the day to arrange sureties, etc., and to allow the bail hearing to be completed later that same day.
    • More flexible bail court hours and practices regarding the granting of requests to stand the case down to collect information.
    • More duty counsel in bail court.  One interviewee suggested bail court could easily use three or four (rather than the current two) duty counsel, since "Duty counsel in bail court have to be in court, in the cells, on the phone, and in the corridors."
    • The use of judges, not Justices of the Peace, in bail court.
  • Having someone "on-site" (perhaps specially trained duty counsel), available to deal with special challenges associated with mentally ill defendants (because of the need to intercede quickly to prevent the interruptions of medication and treatment).
  • Better case management procedures, agreed to by all court parties, and including agreement on processes for speedy resolution, including "the best Crown offer up front."
  • More networking between duty counsel and community organizations that can assist to formulate a plan for managing the accused in the community.
  • The use of properly trained paralegals to support lawyers and handle summary and hybrid offences.  (Some interviewees strongly opposed this idea, saying, "What these people need is lawyers.")

[88] The interested reader is also referred to the following recent reports for suggestions to improve the access of litigants to legal representation:

  • Commission on Systemic Racism in the Ontario Criminal Justice System, Report of the Commission on Systemic Racism in the Ontario Criminal Justice System (Queen's Printer for Ontario, December 1995).
  • Ontario Legal Aid Review, Report of the Ontario Legal Aid Review: A Blueprint for Publicly Funded Legal Services (1977).
  • Criminal Justice Review Committee, Report of the Criminal Justice Review Committee (Queen's Printer for Ontario, February 1999).
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