Unmet Need for Criminal Legal Aid: A Summary of Research Results

A Framework for Understanding Needs for Criminal Legal Aid (cont'd)

Unmet Needs That Flow From The Adversarial Court Process

A Framework for Understanding Needs for Criminal Legal Aid (cont'd)

Unmet Needs That Flow From The Adversarial Court Process

The central study in the research program was the court site study.[41] This study examined the numbers of un-represented accused[42] in nine criminal courts across Canada and explored the consequences of the lack of representation. Although the focus of criminal defence work is often on the trial, and court decisions regarding the right to counsel often refer to right to representation at trial, the study focused on representation at all stages of the criminal justice process. Only a small proportion of criminal matters are decided by a trial. Most are disposed of earlier in the criminal justice process. For those cases that do proceed to trial, the earlier stages of the criminal justice process are important for the cases that eventually do proceed to trial. Research shows that critical decisions are made at the early stages of the criminal justice process that can have important consequences for subsequent stages and on the outcome of the case.[43] While criminal trials may be more demanding than the pre-trial stages with respect to legal technicalities, the earlier stages are nevertheless adversarial and the court process is formal and complex.

The table below shows that un-represented accused appear frequently in the criminal courts. Table I shows the percentage of accused appearing un-represented at various stages of the criminal justice process in all nine courts combined.[44]
TABLE II - Percentages of Un-Represented Accused by Stage of Proceeding
Appearance Per Cent Un-Represented Minimum Per Cent in Four Of Nine Courts
First Appearance 5 % to 61 % above 36 % in four courts
Second Appearance 2 % to 38 % above 30 % in four courts
Third Appearance 1 % to 32 % above19 % in four courts
Bail Hearing 3 % to 72 % above12 % in four courts
Enter Plea 6 % to 41 % above18 % in four courts
Final Appearance 6 % to 46 % above 23 % in four courts

As Table II shows, the results of the court site study also revealed that fairly large percentages of criminal accused are convicted without the benefit of counsel. Even more troubling, up to 27 per cent of un-represented accused receive jail sentences.

TABLE III - Per Cent of Un-represented Accused Convicted and Sentenced to Jail at Last Appearance
Outcome At Last Appearance Range of Percentages for Nine Courts Combined Minimum Percent in Four of Nine Courts
Per Cent Convicted 43 % to 87 % above 60 % in four courts
Per Cent Sentenced to Jail 4 % to 27 % above 16 % in four courts

Who should Have Legal Representation?

The right to legal representation is not absolute. The right of accused persons to obtain legal representation in court is enshrined in the Canadian Charter of Rights and Freedoms in sections 7 and 11.[45] However, the courts have ruled that accused have a right to state funded counsel in circumstances where the absence of legal representation would result in an unfair trial.[46] In R v. White, McDonald J. outlined the criteria that should be taken into account in considering whether legal counsel is necessary to ensure a fair trial.

  • The characteristics of the accused such as financial situation, language skills and education,
  • The complexity of legal and evidentiary matters, and
  • The possible outcome, for example, the possibility of imprisonment.[47]

The right to legal representation based on the needs to assure fairness that exists in law applies to representation at trial. It has been pointed out that most of what occurs in court happens before the trial stage.

The basic standard applied by legal aid plans is the risk of incarceration. If the degree of seriousness of the offence and/or the criminal background of the accused indicates that a jail sentence is likely legal aid plans will generally provide coverage. However, as we have seen above in the section on coverage, respondents in several studies felt that the risk of incarceration standard is too narrow. The Ontario Legal Aid Review also challenged the "negative liberty test" as being too narrow a standard for legal aid coverage.[48]

Errors made by Un-Represented Accused in the Court Process

The qualitative data reported in this section focus on the errors that un-represented accused make in court and how these errors may place accused at a disadvantage. It is assumed that un-represented accused making these errors jeopardizes fairness, but this connection is intuitive rather than empirical.

The court site study gathered qualitative data from interviews with lawyers and judges about the ability of un-represented accused to represent themselves in criminal court. The figure below summarizes the observations made by key informants concerning the errors made by un-represented accused. These are not presented in any particular order.

Figure I - Most Frequently Cited Errors Made by Criminal Accused [49]
Stage Error or Problem
First Appearance
  • not knowing when to plead guilty
  • failing to appear and not understanding the consequences with respect to bail
  • testing the tolerance of judges by asking for multiple postponements
  • not being aware of entitlement to disclosure
Pre-Trial Release
  • not availing themselves of counsel because "they can not wait" to argue for their release
  • conducting bail hearings without disclosure
  • not understanding, or agreeing to, release conditions that are unworkable; e.g. clauses relating to contact with spouses with whom they have legitimate contact or with whom they have joint responsibilities for children
  • not being aware of diversion or not asking to beconsidered f or diversion
  • pleading guilty "just to get it over with"
  • pleading guilty when they are denied bail, just to get out of jail
  • pleading guilty when they have a viable defence
  • pleading guilty before they have seen the disclosure
  • not knowing how to assess the strength of the Crown's case
  • not asking for certain charges to be dropped
  • not pleading to charges consistent with the actual behaviour
  • not knowing the usual sentence for an offence
  • not understanding the consequences of a conviction either for subsequent charges or with respect to impacts on employment, eligibility to be bonded, etc.
  • not demanding a trial or a dismissal on court days when the Crown witnesses fail to appear
  • not reading the disclosure or learning the Crown's evidence against them
  • going to trial when there are no justiciable issues
  • deciding to testify when they should not, or assuming that they must testify
  • making accidental and damaging admissions ("Yes I hit her but she hit me too.")
  • not calling the witnesses they need for an effective defence
  • not availing them of the legal processes that can help their case; e.g. a hearing on the confession
  • not requesting a directed verdict when the Crown has not proven the case
  • not understanding the available defences
  • not being aware of the relevant evidence
  • not being able to effectively scrutinize the testimony of witnesses
  • poor or ineffective cross-examination
  • the Crown will not normally bargain with unrepresented accused, thus not having the advantage of a reduced sentence
  • not knowing what arguments to make at sentencing
  • not knowing the best arguments to make with particular judges
  • not knowing the mandatory sentences for particular offences
  • not mentioning salutary efforts they may have made since the offence; e.g. getting a job, undertaking counseling or treatment
  • not being aware of and requesting certain types of sentence; e.g. a conditional sentence
  • not arguing against unworkable sentencing conditions

The informants noted that apart from the ability of un-represented accused to formulate and execute legal strategies, they often do not understand the social and economic consequences that may follow from a conviction and a criminal record. They may plead out without properly weighing the consequences.[50]

The respondents in the court site study provided anecdotal evidence of un-represented accused either failing to raise arguments in their defence or accepting outcomes without raising arguments because they had not considered the social or economic consequences. The most frequent examples involved un-represented accused accepting bail or sentencing conditions that would impact on the accused person's ability to fulfill family obligations. The examples included driving prohibitions or peace bonds that prevented the accused from driving children to school, and location curfews or driving conditions that affected the person's employment.[51] It was noted that accused might plead guilty even when they have a legal defence because they are ashamed or embarrassed and wish to minimize the shame and publicity of their offence.[52] This is amplified by the study of accessibility of criminal legal aid for immigrants and certain visible minority groups. The focus group participants in this study emphasized the manner in which the cultural values of minority groups often attach community stigma and personal shame to a criminal offence.[53] Some members of minority groups may therefore be especially vulnerable to the inappropriate decisions reported above in Figure I by the key informants in the court site study. The evaluation of a pilot project designed to provide information to un-represented accused characterizes the clientele of the main provincial criminal court in downtown Vancouver as being "incredibly poor, severely addicted, and whose thinking abilities are challenged, they may have alcohol-related neurological deficiencies (Fetal Alcohol Syndrome/Fetal Alcohol Effects), may be illiterate, have English as a second language, and suffer from mental illness." [54] With these disadvantages, they face an unfamiliar and very stressful environment. According to one judge interviewed for the study:

On occasion an un-represented accused will be pretty well organized. But most of them - they don't have a clue. They don't understand how a trial is conducted. They do not understand what things are relevant in relation to the charges they are facing. They don't have the advocacy skills, and who's to blame them for that? A lot of them are poorly educated people and people who are on the margins. But even people who have been generally more fortunate and better-educated do not have the advocacy skills. They don't know how to ask questions and don't know which questions to ask.[55]

None of the research attempted an empirical analysis of the fairness of criminal proceedings. However, the qualitative data do lead to the conclusion that virtually no accused person who appears un-represented in criminal court could represent him- or herself without making errors of omission and of commission that place them at a disadvantage. Most matters in the criminal courts are disposed of without a full trial. However, even though most of the appearances are at stages of the criminal justice process before the trial stage, the proceedings are adversarial: the un-represented accused is opposed by a trained prosecutor, and the appearance involves legal procedures and technicalities unfamiliar to lay persons. In view of the consequences of a conviction the litany of disadvantages of un-represented accused is cause for concern about un-represented accused.

The Burden of Un-represented Accused on the Courts

Judges and prosecutors claim that the presence of un-represented accused places a considerable strain on them because they must step outside of their normal roles to assist these people. The perception of interviewees was that this results in a greater burden on and increased workloads for the court[56] However, contrary to expectations, the quantitative data do not support the case for an increased burden on the court. Duration of appearances was shorter and number of appearances per disposed case was shorter for un-represented accused.[57] The evidence on total elapsed time to the completion of cases was mixed. Un-represented accused required longer elapsed time compared with accused represented by staff lawyers, but shorter times compared with those represented by private bar lawyers.[58] It is possible that the efforts of the judges and the prosecutors diminish the consequences of any disadvantages experienced by un-represented accused but there is no direct evidence one way or the other. The qualitative evidence suggests that the level of expertise required to avoid disadvantage is well beyond the capacities of virtually all un-represented accused, and this applies to all stages of the criminal justice process. In view of the qualitative evidence about the lack of advocacy skills of accused and the inability to assess appropriate courses of action and consequences, it is very difficult to conclude that fairness in any basic and intuitive sense could characterize the appearance of any un-represented person in criminal court. It is arguable that all accused should receive some level of legal representation.

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