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


System-Centered and Client-Centered Perspectives on Criminal Legal Aid Needs: Meeting The Special Needs of Legal Aid Clients

The results of most of the research promote the concept that the disabilities and disadvantages of the accused should be considered to a much greater extent in determining and addressing the needs of legal aid clients. In her report on the criminal legal aid needs of women, Lisa Addario describes this as a more client-centered approach as distinguished from the conventional court-centered perspective on criminal legal aid needs.[59] In the court- centered approach legal aid needs are assumed to flow almost exclusively from the arrest, the offence and the court process. Meeting the client's needs means providing the person with legal advice or representation. This approach tends to see the criminal matter as an isolated legal issue disconnected from the disadvantages and disabilities of the accused that may be relevant to the offence or to other legal or non-legal issues that are part of the bundle of problems related to the offence. On the other hand, the client-centered perspective on criminal legal aid needs represents the view that it is important to deal with the legal issues in a way that takes into account the effects of disabilities or disadvantages that are related to the offending behaviour and/or attempts to employ reparative and preventative strategies that address the individual or systemic factors are linked to the offence. These other factors may be linked to the offence either as cause or consequence. The criminal offence is not isolated from these related issues and treating them as such is, in Addario's view, a form of tunnel vision that ignores the social realities involved in the production of criminal offending and the social consequences of employing criminal sanctions.

A client-centered emphasis on legal aid needs acknowledges a changing social role of criminal defence, a new role that appears to be the product of at least two influences. One is a cross-over of perspectives from the literature in civil legal aid that views legal problems as an integral aspect of poverty.[60] The second influence may be the increasing influence of the restorative justice movement that promotes greater reliance on preventative and reparative strategies in dealing with offenders.

The client-centered perspective is not distinct from providing legal advice and representation. The court-centered and the client-centered approaches should not become a false dichotomy. The need for criminal legal aid is driven in the first instance by the criminal justice process; by the arrest, the charge and the court process. The client-centered approaches to legal aid needs adds a dimension to the court-centered approach and may require a change in delivery methods to deal with the special needs of legal aid clients. It does not replace it, nor does it imply that legal aid should provide a range of services beyond what a lawyer might either take into account or arrange to have provided when serving the client. It suggests a number of client characteristics that might be taken into account in providing legal representation. Taking into account the special needs of legal aid clients may be necessary to enable legal aid to effectively meet the more traditional court-centered needs or to provide an outcome that has stronger preventative or reparative aspects for that particular individual. This view of court-centered and client-centered needs attempts to recognize that the justice system within which legal aid operates is changing, emphasizing more reparative and preventative ways of dealing with clients. These changes in the broader justice system challenge criminal legal aid to adjust to these changes while, at the same time, recognizing that the core business of criminal legal aid is legal advice and legal representation.

The research suggests four main types of special needs that support the argument for a more client-centered approach to legal aid. These are needs that relate to the disabilities of legal aid clients; needs that relate to linguistic, social and cultural characteristics; needs that relate to overlapping legal problems experienced by legal aid clients; and needs related to systemic social factors.

Unmet Needs That Flow From the Disabilities and Disadvantages of the Accused

Both the Brydges study and the court site study pointed to the frequency of mental disorders, cognitive disabilities and learning disabilities found among the criminal accused. The authors of the Brydges study discussed the limitations in dealing with clients needs at the Brydges duty counsel stage. The court site study observed that there are significant numbers of mentally disordered offenders in some courts studied.[61] This observation was made in the context of un-represented accused, rather than with regard to providing representation for offenders with these disabilities. Several factors, however, may contribute to the inability of legal aid service providers to recognize many of these disabilities. One is the pace of the court process. The court site study showed that appearance times, excluding full trials, generally varied between about a minute and four minutes.[62] Second, due to a lack of legal aid resources, legal aid lawyers were described by respondents in the court site report as being "run off their feet" and "unable to go the whole nine yards" for their clients.[63] The court site study raised the issue of mentally disordered accused as an argument for the need for legal representation. It is very likely that even if accused with these problems are represented by legal aid, lawyers may have little possibility of identifying client's problems unless there is adequate opportunity before the court appearance to assess client needs. Thus there may be little likelihood that the special needs of some clients are being met.

Unmet Needs That Flow from Linguistic and Cultural Barriers

The court site study reported significant numbers of Aboriginal people and immigrants in certain courts. In the case of both groups, the court site study cited language and cultural barriers that limit the ability of un-represented accused to cope with the court system. Both the study of the needs of Aboriginal people for legal aid and the study of needs of immigrants and visible minorities extended the discussion of language and cultural barriers to problems in providing effective representation to minority clients. To a large extent, the issues raised by the Aboriginal and Immigrants studies related to effective communication between clients and legal aid lawyers. The inability to speak either English or French presents obvious problems. Interpreters are available in courts when required, although possibly not immediately. Both studies cited the lack of interpretation, especially for contacts between lawyers and clients out of court, as a problem.

The studies cited a variety of barriers to effective legal aid service that are broadly cultural in nature. For example, the Aboriginal study pointed to culturally-based communication patterns. According to some respondents, the fast pace of the court and the lack of time that lawyers have to talk to clients present a "culture clash" with traditional Aboriginal styles of communication. Aboriginal people who are strongly rooted in traditional oral cultures will not establish a bond of trust and effective communication unless there is time for the Aboriginal client to speak at sufficient length to the lawyer to "tell his or her story". This is often not the case and, according to the study, many Aboriginal accused will not communicate critical information to the lawyer or may be inclined to enter guilty pleas when they should not, in part because of culturally-based communication barriers.

The describe psychological barriers relating to feelings of systemic discrimination that limit effective communication between some minority legal aid clients and lawyers. Although the perceptions of systemic discrimination arise from different histories and patterns of social relations, many Aboriginal people and members of several disadvantaged minority groups hold strong perceptions of systemic discrimination in the justice system general. This is related to feelings of mistrust and suspicion of the justice system, including legal aid.

Unmet Needs that Flow From Overlapping Legal Matters

Respondent opinions and analysis of the literature from a number of the studies observed that the "silos" that exist between traditional service delivery areas (e.g. criminal law, family law and refugee law) result in unmet need for some clients. Respondents in the immigrants, refugees and visible minorities study observed that a conviction in a criminal matter may have significant consequences for the immigration status or the refugee claim of an accused. Some respondents reported that in dealing with criminal matters legal aid lawyers tend not to take into account implications for a person's immigration status or refugee claim.[64] The study of needs of women and criminal legal aid indicated that the involvement of women in a criminal law matter, as an accused person or as a victim, can invite the attention of child welfare or social services, thus raising poverty law matters.[65] Respondents in all three of the studies dealing with legal aid in the northern territories indicated that family disputes often give rise to criminal law offences and if not resolved can cause repeated criminal offences.[66] Involvement in criminal legal aid cannot be separated from these connected issues. Although they may not directly become part of the actual court proceeding, legal aid should be organized to identify and deal with them to limit the impacts on the lives of people and to attempt preventative and reparative efforts.

Unmet Needs That Flow From Systemic Social Factors

The Aboriginal study recommends that legal aid should become more involved in developing restorative justice strategies for Aboriginal clients.[67] In a similar fashion the immigrants and visible minorities study suggested that legal aid should be more proactive in developing diversion options and sentencing alternatives to address the special circumstances related to the involvement of minorities in crime.[68] In view of the alienation from the justice system felt by Aboriginal people and suspicion about the justice system felt by many members of immigrants and visible minority groups, these expectations of legal aid are a paradox. The perspective of Aboriginal people on legal aid needs is a product of the over-representation paradigm. The interpretation of the authors of the Aboriginal study is that Native people trace legal aid needs back to the common source of perceived systemic discrimination. This is the explanation for the view that legal aid should be addressing the systemic factors that bring Aboriginal people into conflict with the law in numbers so disproportionately greater than non-Aboriginals. Similarly, the perspective of the informants from immigrant and visible minority communities is a reflection of the view that immigrants and non-white minorities suffer from perceived systemic discrimination in the justice system. It is a paradox that both Aboriginal people, immigrants and members of visible minorities were reported to be suspicious and mistrustful of legal aid, along with the justice system generally but, at the same time, respondents from these minority groups expressed the expectation that legal aid should champion the rights of accused from visible minoritiesagainst systemic discrimination.

The expectations relating to this type legal aid need not only reflect the views of respondents. They are firmly rooted in Canadian law. The alternative measures provision of the Criminal Code encourages the use of alternatives to incarceration.[69] The case law also provides that systemic social factors should be taken into account in developing sanctions for both Aboriginal people[70] and, more recently, for Afro-Canadians.[71] Proactively developing alternative measures of these types would no doubt benefit legal aid clients.

A Caveat on the Client-Centered Perspective

The need for legal aid is triggered by detention by the police, by a charge and the appearances in court. Thus, there is a clear link between the justice system and the need fro legal representation. The client-centered argument shifts the decision to provide legal aid to the needs and characteristics of the clients. The client-centered needs argument is that the effective provision of legal aid is affected by range of client characteristics that give rise to needs related to effective communication with the legal aid lawyer or give rise to needs for dispositions or resolutions that take into account the clients disadvantages and disabilities. With respect to the latter these quite possibly reflect the same factors that may be related to the legal aid client's having committed the offence in the first place. This is not an empirically-based argument like analysis of the proportions of un-represented accused, the percentages being convicted, the percentages being sent to jail and the related qualitative data. The substance of this perspective on client needs derives largely from the apparent fit between the comments of various respondents and the conclusions of some researchers about the problems experienced by legal aid clients and the conceptual framework comparing client-centered needs and court-centered needs articulated in the report by Addario on the legal aid needs of women. The concept of client-centered needs seems sensible on intuitive grounds. However, there is no careful observational evidence describing how a client-centered might work as a dimension of a delivery model, nor is there empirical evidence about the benefits.

Conclusions

The results of the research show that a large proportion of accused in criminal courts are un-represented. Many of these people are without representation at critical stages in the criminal justice process; at bail and at the sentencing appearance. In four of the nine courts, more than 60 percent of un-represented accused at final appearance were convicted without the benefit of representation. At least 16 percent of un-represented accused at final appearance received jail sentences, again, without legal representation.

Most respondents felt that legal aid should be accessible to a much larger number of criminal accused. Interviews with lawyers and judges indicated that virtually all un-represented accused make mistakes in court that jeopardize their legal position. The overwhelming point of view of respondents was that un-represented accused lack the ability to defend themselves properly in the adversarial and technical environment of the criminal courts. Thus it may be argued that nearly all un-represented accused require legal representation in order to assure a fair hearing.

It was also observed by a number of respondents that the un-represented accused problem is produced by financial eligibility guidelines that are too low, thus excluding too many people who must appear in court. This is consistent with quantitative results showing that financial eligibility guidelines are for the most part below accepted poverty levels. Finally, some respondents proposed that first times offenders, not at risk of imprisonment but at risk of receiving a criminal record, should receive legal representation. This proposal would effectively make legal aid a universal service.

Respondents proposed a number of responses to the un-represented accused problem. Respondents in several of the studies suggested that greater resources should be dedicated to duty counsel services, especially the expanded model of duty counsel. Expanded duty counsel is a disposition model of duty counsel that is intended to remove cases from the docket early in the criminal justice process. Given that most criminal cases are relatively straightforward and most are disposed before the trial stage, this proposal by respondents may be a viable solution to the un-represented accused problem. Another suggestion from respondents was the need for legal service as early as possible in the criminal justice process to avoid mistakes made early on by an un-represented accused from magnifying later in the process. Expanded duty counsel could be viewed as the means by which early intervention might be achieved.

A strong body of opinion emerged within the research emphasizing a more client-centered approach to meeting the needs of legal aid clients. Respondents in the court site study, observations from the un-represented accused pilot project and the literature review in the Brydges study characterized criminal accused as a low functioning population typically with low levels of literacy, low educational levels, and disproportionately high levels of learning disabilities, mental disorders, cognitive limitations and impacts of chronic drug and alcohol abuse. The court site study, the Aboriginal report and the immigrants, refugees and visible minorities study indicated that courts in some regions have large numbers of immigrants or Aboriginal people who may experience language and cultural barriers, possibly in addition to other disadvantages and disabilities. Accused who fall into these categories require special forms of assistance starting at the legal aid intake stage through to legal representation. Many respondents emphasized the need for public legal information so clients can understand the charges they are facing, the criminal justice process that they will experience and role of legal aid in that process.

The Brydges study, as well as the Aboriginal study, the immigrants, refugees and visible minorities study and the three studies in the northern territories all emphasized the difficulties experienced by accused persons in understanding legal advice provided over the telephone. A key observation in the Brydges study is that the "perfunctory" provision of advice that is poorly understood may satisfy the formal legal requirement to advise the detainee of his or her rights, but it may work to the disadvantage of clients who do not understand their rights and do not exercise them in subsequent police interrogation.

Implications for Legal Aid Delivery

Two elements of an improved approach to meeting the needs of legal aid clients that were suggested by respondents have already been noted in the conclusion. These were the greater use of expanded duty counsel and the closely related suggestion related to early intervention. This final section of the paper suggests several implications for legal aid that are suggested by the research. They are not based directly on the results of the quantitative or qualitative data.

In order to become more client-centered legal aid delivery may have to become more vertically integrated. Identifying and dealing with the needs of clients that flow from their significant disadvantages would require a capacity to do so early in the legal aid process. The process of dealing with client needs could possibly begin at intake or even further back in the justice process with Brydges duty counsel. If the needs of clients were assessed early in the process it would open up the possibility of a type of "continuum of service" approach in which appropriate levels and types of service would be provided based on the needs of the client, and continuity could be maintained as clients proceed through the criminal justice process. It was suggested by respondents in the court site study that Native court workers or other paralegals might be linked more closely with legal aid in a vertically integrated delivery model assisting lawyers with tasks such as scheduling and providing information to clients, gathering evidence and assisting with the development of sentencing plans. [72]

Legal aid delivery could be made more horizontally integrated. Respondents representing immigrants, Aboriginal people and women indicated that there is a need to make the necessary linkages between criminal charges and related problems in other areas of law such as refugee and immigration law, family law or poverty law. Legal problems in other areas of law should be identified, assuring that these needs are met within the overall legal aid system. The related legal problems might be relevant to the criminal matter. Alternatively, they might be addressed separately, at least in part. From the client-centered point of view problems that might otherwise be seen as distinct legal matters are treated holistically as the interdependent set of problems affecting the client's life.

Another implication is the possible need for greater external integration. Respondents in the court site study, in the Aboriginal study and in the immigrants and visible minorities study suggested that greater external integration with community groups would be beneficial. The resources of community associations might be useful to lawyers in developing alternative measures or support for bail conditions. Community associations might be ideal intermediary groups for developing public legal information related to legal aid. Finally, community groups could provide a source of information about group cultures and social patterns that may be relevant to providing legal advice and criminal defence services.

Problems and Legal Aid Needs

The research has produced a wealth of empirical data about un-represented accused and qualitative information about their experiences in the criminal courts. However, transforming these results into conclusions about needs in not a straightforward exercise. Whether the conditions described by the research represent unmet needs remains open for discussion. The question of whether a situation is a need that should be met is, in large measure, a normative issue.

The Role of Legal Aid in the Criminal Justice System

Based on the range of quantitative and qualitative data drawn from the various studies, this paper presents a broad framework for understanding criminal legal aid needs. In doing so, the research results raise equally broad questions about the role that legal aid is expected to play in the criminal justice system. Should legal aid meet the basic standards of providing service for those who are in custody or at risk of imprisonment? Should there be universal access to legal representation at some or all levels before the trial stage? Should legal aid play some role in achieving broader justice system objectives of preventative and reparative strategies for the accused? To what extent do we expect legal aid to mitigate the disabilities and disadvantages of individual accused? It has been pointed out long before this research that "[h]aving a lawyer for a court appearance in a criminal charge is widely thought of not as a right, but a necessity."[73]

Legal aid delivery could be made more horizontally integrated.[74] However, there are possible social justice objectives for legal aid that are integrally connected with the appearance in court but, at the same time, go beyond the strictly legal aspects.


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