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

Chapter 9: Scarborough, Toronto, Ontario (continued)

9.5 Impact of self-representation on the accused

9.5.1 Overall impact: Perceptions of those interviewed

The site visit interviews provided some interesting insights on the subject of impacts on accused persons. 

Three general impacts of under-representation and lack of representation suggested by interviewees were that:

  • Charter arguments were not raised because matters were pled out or not properly tried.
  • Consequently, the "audit function" that trials serve in relation to police conduct was diminished.
  • The entire system is premised on the assumption and principle that both sides (Crown and defence) are equally matched.  When they are not, everything (and everyone) suffers.
Figure SC-5. Disposed Cases: Proportion of Accused who were Unrepresented At Final Appearance, by Most Serious Charge Category, Scarborough *
Most Serious Charge Category Proportion of Cases Represented by Number of Cases
Self (%) Duty Counsel (%) Private Counsel (%) Other (%)
Homicide n/a n/a N/a n/a 0
Sexual Assault *** *** *** *** 8
Assaults excl. Common 16 9 74 1 120
Robbery *** *** *** *** 4
Break and Enter *** *** *** *** 10
Impaired Driving 25 13 63 0 32
Common Assault 16 24 61 0 110
Drugs excl. Simple Possession** n/a n/a N/a n/a 0
Weapons Offences *** *** *** *** 10
Thefts and Frauds 15 35 47 2 93
Simple Possession of Drugs *** *** *** *** 5
Offences against Administration of Justice 13 26 61 0 31
Public Order 14 38 43 5 21
Miscellaneous Criminal Code 13 40 47 0 15
Other Federal Statutes *** *** *** *** 1
Provincial/Municipal Statutes *** *** *** *** 9
Unknown offence *** *** *** *** 1
Total 16 22 61 1  

Notes

  • *  Excludes cases for which representation was unspecified in the file
  • **  The Scarborough court does not handle drug cases other than simple possession.
  • ***  The cell contains too few cases to report a percentage.

Most interviewees were of the view that the availability of representation would significantly affect unrepresented accused especially at the early stages of the criminal process.  A few felt that, at plea or trial, "If the Crown was acting in his or her Minister of Justice role," there would be little impact on the verdict.  Others felt that, although they tried, the judiciary could not make up for the limitations.

Among the impacts cited by interviewees were:

  • Unrepresented accused were less likely to get bail and might plead guilty to get out of custody – or (because they did not get released) did not have the opportunity to get a job and pay for a lawyer or to accumulate evidence that they had turned their lives around prior to sentence.
  • Unrepresented accused were less likely to get charges reduced or dropped;
  • Unrepresented accused were more likely to be convicted, even where the case might not be viable and the behaviour did not reflect the charge.
  • Trials in minor cases that had merit, possibly including a defence concerning Charter rights, were no longer covered, which may have increased the guilty plea rate and reduced the review of police procedures.
  • Since no written translation of the disclosure was made, and the disclosure was only briefly translated on the day of trial, unrepresented accused with a limited knowledge of English would have had little understanding of the case against them.The gradual accumulation of a criminal record would make future consequences more severe.
  • Charter arguments that were not raised.
  • Harsher sentences.

9.5.2 Specific strategic and tactical mistakes by the accused

Most interviewees agreed that the most important stages in the criminal process at which the accused requires counsel were the earlier ones – initially at arrest, after charging, pre-trial release, and at plea.  Most interviewees also said sentencing was a stage that required some expertise.

The following were among the most serious errors that interviewees suggested would be made by unrepresented accused at pre-trial stages:

  • Failing to show up for fingerprinting, resulting in a new charge.
  • Believing that if they were innocent, they did not need a lawyer.
  • Not understanding their Charter rights or when they have been breached; the law of search and seizure, etc.
  • Believing that, if they were denied bail, their sentence would be "time served."
  • Not understanding that bail conditions continued beyond the next court appearance – leading to breaches of conditions and additional charges.
  • Not understanding the consequences of a conviction, e.g.:
    • next time the charges would be higher and the failure to appear charge would not be dropped;
    • impacts on their being able to immigrate or on their being deported; and
    • impacts on child custody.
  • Thinking only about whether or not they would be sent to jail or deported.
  • Not understanding that a failure to appear would affect the likelihood of bail the next time.
  • Pleading guilty as soon as they were denied bail, in order to get out of jail (e.g., because of jail conditions, and/or to get off onerous bail conditions, and/or to keep their jobs, and/or to go home to their families).
  • "Blurting out" something at first or other early appearance that would prejudice their case later.
  • Pleading guilty before seeing the disclosure, and not knowing how to assess the strength of the Crown's case.
  • Pleading guilty to offences they did not commit.  (Duty counsel would not assist with such pleas, whereupon the accused would do so unassisted.)
  • Some out-of-custody accused "just wanted to get it over with" and pled guilty as soon as possible, especially where:
    • the charge was a minor one and the accused was convinced s/he would not get legal aid;
    • the accused wanted to lift unworkable bail conditions; and/or
    • the charge was related to family violence and the accused was desperate to return home.
  • Pleading guilty out of shame alone.  (This was particularly common among some Scarborough residents of Asian descent.)
  • Pleading guilty to all the original charges (not knowing that Crowns have a practice of withdrawing certain charges or reducing others), and not pleading to charges more in keeping with the actual behaviour.
  • Pleading guilty even if it meant they would be deported.

The following are among the most serious errors which interviewees suggested would be made by unrepresented accused at trial:

  • Showing up on the day of trial thinking that the trial would be sometime in the future.
  • Going to trial when there were no issues worthy of a trial, and "not getting a good deal."
  • Deciding to testify when they should not.
  • Making accidental and damaging admissions, e.g., mentioning breaches of no-contact orders.
  • Not calling the witnesses they needed – and not knowing how to state the key elements of their defence by interviewing witnesses.
  • Getting so wound up in their own case that they did not listen to and understand the key elements of the Crown's case.
  • Not asking for a directed verdict when the Crown had not proved its case.
  • Not understanding the available defences (especially in impaired driving cases).
  • Not seeing the relevance of evidence.
  • Poor cross-examination
  • Not asking the judge to waive the Victim Fine Surcharge.  (Interviewees indicated that most judges would often waive it, if asked.)

The Direct Court Observation found that, overall, a quarter of the appearances took one minute or less.  The median amount of time taken per appearance was two minutes – meaning that half the cases took less than two minutes and half took more.[79]  Within the context of this type of time pressure, it is not difficult to understand why many of those interviewed noted that an accused without a developed understanding of court procedures would make specific mistakes – and would be disoriented generally throughout the court process.

9.5.3 Type of plea entered by type of representation

The previous discussion focused on the perceptions of those interviewed regarding the impacts of accused appearing before the court without representation.  In this and following sections we provide empirical evidence on what actually happened to unrepresented accused, using data on cases in the Disposed Cases file and from the appearances directly observed in court. 

It is, however, important to make it clear at the outset that the information is not presented to draw causal inferences, but simply to describe the events at various stages in the process.  For instance, the evidence is not presented to suggest that the lack of representation caused, for example, a higher (or lower) likelihood that an unrepresented accused would be convicted.  Rather, it simply describes whether or not, and how frequently, significant decisions were made and certain outcomes occurred with or without the presence of counsel.

As noted earlier, a number of interviewees raised the issue of whether or not unrepresented accused were more likely to plead guilty – for instance, to "get it over with," to alleviate unworkable bail conditions, or because they had neither the knowledge nor resources to contest the charges.  A number of accused also mentioned the frequency with which unrepresented accused plead guilty on the day set for trial.

Figure SC-6 displays the plea entered by the type of representation available to the accused.

  • Of all pleas in the sample, 87 percent were guilty pleas.
  • Unrepresented accused were least likely to plead guilty (69 percent).
  • Pleas entered by accused who were represented by duty counsel were almost always guilty pleas.
  • Cases represented by the private bar resulted in a guilty plea less often than cases represented by duty counsel (86 percent) – but considerably more often than unrepresented cases.
Figure SC-6. Disposed Cases in which a Plea was Entered By Type of Plea Entered by Type of Representation at Plea Appearance, Scarborough
Plea Proportion of all Pleas by or on behalf of Accused Represented by Number of Cases Proportion of Cases
Self Duty Counsel Private Counsel
Guilty 69% 98% 86% 225 87%
Not guilty 31% 2% 14% 33 13%
Total Cases 100% 100% 100% 258 100%

Notes
*  Excludes cases for which representation at plea was unspecified in the file, and cases represented by agents.

Three of the offence categories contained enough cases to permit comparisons of pleas by type of representation. 

  • The pattern for cases as a whole did not hold up for thefts and frauds, where guilty pleas were entered in virtually all instances, regardless of representation type.
  • The pattern for cases as a whole did not hold up for assaults excluding common assault.  In these cases, a guilty plea was entered in 92 percent of private bar member cases, but only 88 percent of duty counsel cases, and 62 percent of self-represented cases.
  • For common assaults, the pattern held up.  All of the accused represented by duty counsel pled guilty, none of the self-represented accused did, and 74 percent of the accused represented by private counsel pled guilty.

9.5.4 Conviction or not by type of representation

Conviction rates were examined in terms of representation at two stages of the court process – at appearances where the plea was entered (containing more dispositions by way of guilty plea), and at final appearances (containing a higher proportion of cases that went to trial).

Figure SC-7 shows the conviction rates for cases by the type of representation at plea.  The data suggest that:

  • Overall, 94 percent of cases in which a plea was entered resulted in conviction.[80]
  • Conviction rates for cases assisted by duty counsel (98 percent) were slightly higher than for those represented by private bar members (93 percent).
  • Conviction rates for self-represented cases were lowest of all (86 percent).

The overall pattern for cases as a whole held up when the three most common offence categories were examined, with the exception that a conviction was entered in every case in which the most serious charge was theft or fraud.[81]

Figure SC-7. Disposed Cases: by Type of Disposition By Type of Representation at Plea Appearance, Scarborough
Disposition Proportion of Dispositions for Accused Represented by Number of Cases Proportion of Cases
Self Duty Counsel Private Counsel
Convicted* 86% 98% 93% 241 94%
Not Convicted** 14% 2% 7% 17 7%
Total Cases 100% 100% 100% 258 100%

Notes

  • *  Includes guilty verdict and peace bond ordered.
  • **  Includes not guilty and discharges.

Figure SC-8 shows similar information but, instead, analysis was done using representation at final appearance.  Different results were possible for a number of reasons.  First, accused who were unrepresented at plea may have retained private counsel or had a certificate lawyer assist them later in the court process.  To the extent that those with weaker cases would retain counsel, the conviction rates of unrepresented cases would go down and the conviction rates of cases with counsel would be higher.  However, an even more important reason for lower conviction rates showing in Figure SC-8 – of cases with all types of representation – was that pleas were hardly ever entered in cases stayed or withdrawn by the Crown – a not insignificant proportion of cases.  The inclusion of such cases in Figure SC-8, but not in Figure SC-7 would be expected to have a significant impact on the percentages shown in the Figures.

In fact, when all disposed cases were considered (i.e., not only those in which a plea was entered),

overall, 54 percent of cases resulted in convictions.

  • Similar conviction rates were observed for cases with different types of representation.
  • Cases represented by private counsel at last appearance had the highest conviction rates (55 percent), but only slightly higher than for duty counsel (52 percent).
  • Self-represented cases had a slightly lower conviction rate (50 percent), perhaps reflecting those cases that did not qualify for legal aid because they were likely to be diverted.

One should, however, note that in comparing conviction rates for self- represented accused with those for represented accused, one should take into account the likely impact of post-charge and pre-court process "diversion" on these conviction statistics.  Accused who were diverted were extremely likely not to have a lawyer. Given that successful completion of the diversion program would result in non-conviction, the existence of a diversion program would be expected to result in lower overall conviction rates for self- represented cases (with little if any impact on conviction rates for represented case).  Unfortunately, data were not available on which cases were diverted or even the percent of cases that were diverted, and therefore we cannot say what the conviction rate would be for unrepresented accused who were not diverted.  However, it is safe to say that the rate for non-diverted non-represented accused would be higher than the 50 percent shown in Figure SC-8.

Figure SC-8. Disposed Cases: by Type of Disposition By Type of Representation at Final Appearance, Scarborough
Disposition Proportion of Dispositions for Accused Represented by Number of Cases Proportion of Cases
Self Duty Counsel Private Counsel
Convicted * 50% 52% 55% 216 54%
Not Convicted** 50% 48% 45% 250 46%
Total Cases 100% 100% 100% 466 100%

Notes :

  • *  Includes guilty verdict and peace bond ordered.
  • **  Includes not guilty, withdrawn, dismissed, stayed, and discharges.
  • ***  Excludes cases represented by students or agents.

When the three most common offence categories are considered individually, this overall pattern breaks down:

  • For common assaults, conviction rates were highest for duty counsel cases (58 percent), lower for private counsel cases (45 percent), and much lower for self-represented cases (18 percent).
  • For thefts and frauds, private counsel cases had the highest conviction rates (73 percent), considerably than those for self-represented (57 percent) and duty counsel cases (39 percent).
  • For assaults excluding common assaults, self-represented cases had the highest conviction rates (63 percent), significantly higher than for private counsel (55 percent) and duty counsel cases (46 percent).

Earlier we cautioned against using these data to imply a causal connection between type of representation and conviction rates.  However, given the impact of having a criminal record (on employment opportunities and the likelihood of being charged with further offences, etc.) the data can definitely be used to show that many unrepresented accused will experience serious negative impacts  as a result of the court process.  Whether or not that possibility alone is sufficient to call for greater availability of legal representation is a matter of public policy.

9.5.5 Custodial sentence and type of representation

Figure SC-9 extends the analysis by showing the proportions of cases receiving a custodial sentence, according to the type of representation available to the accused at the plea appearance.  The figures suggest that the legal aid criterion concerning "likelihood of imprisonment" was applied accurately:

  • Overall, 39 percent of cases in which a plea was entered received a custodial sentence.
  • Cases represented at plea by private counsel were more likely to receive a custodial sentence (63 percent).
  • Duty counsel cases were less likely to result in a custodial sentence (48 percent).
  • Self-represented cases were least likely to result in a custodial sentence (29 percent).[82]

Three offence categories were sufficiently represented to permit comparison of custodial patterns, according to type of representation.  When these were considered separately, the overall pattern did not hold.  For thefts and frauds, cases represented by duty counsel were most likely to receive a custodial sentence (62 percent), and there was no difference between the incarceration rates for self-represented cases and cases represented by private counsel (29 percent).  Common assault was most likely to receive a jail term if self-represented (50 percent), and least likely if represented by duty counsel (21 percent).  For other assaults, the incarceration rate in duty counsel cases was highest (50 percent), followed by that in private bar cases (43 percent) and self-represented cases (23 percent). 

Figure SC-9. Disposed Cases: by Whether or Not Custodial Sentence Received by Type of Representation at Plea Appearance, Scarborough
Sentence Represented by Number of Cases Proportion of Cases
Self Duty Counsel Private Counsel
Custodial Sentence 29% 48% 63% 100 39%
No Custodial Sentence 71% 53% 34% 158 61%
Total Cases 100% 100% 100% 258 100%

Notes
*  Cases represented by agents and students are not included in the table.

Figure SC-10 shows the distribution of custodial sentences for cases by representation at final appearance (which contains additional cases in which a plea was not entered).  The Figure suggests, as the likelihood of imprisonment criterion would suggest, that:

  • Overall, 22 percent of disposed cases received a custodial sentence.
  • Duty counsel and private counsel cases were more likely to receive a custodial sentence (26 percent and 23 percent respectively).
  • Of accused who were unrepresented at final appearance, 13 percent received a custodial sentence.[83]
Figure SC-10. Disposed Cases: by Whether or not Custodial Sentence Received by Type of Representation at Last Appearance, Scarborough
Sentence Represented by Number of Cases Proportion of Cases
Self Duty Counsel Private Counsel
Custodial Sentence 13% 26% 23% 103 22%
No Custodial Sentence 87% 74% 77% 363 78%
Total Cases 100% 100% 100% 466 100%

Notes
*  Excludes cases represented by students and agents.

Three offence categories were sufficiently represented to permit individual analysis of custodial rates according to representation type.  For common and other assaults, self-represented cases had the lowest imprisonment rates (6 percent and 11 percent), but private bar cases were more likely to be result in incarceration (16 percent and 29 percent) than both self-represented and duty counsel represented cases.  For thefts and frauds, duty counsel cases had the highest imprisonment rates (24 percent) and self-represented cases the lowest (14 percent).

Again we caution against using these data to imply a causal connection between type of representation and likelihood of receiving a custodial sentence.  However, the results are directly relevant from another important perspective. Specifically, it is accepted that eligibility for legal aid should depend (in part) on the likelihood of a case receiving a custodial sentence.  Although one cannot expect to predict with total accuracy whether a case will result in a custodial sentence, it is relevant that custodial sentences were received by more than one in 10 self-represented accused – and by almost three in 10 accused who are self-represented at plea.


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