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Court Site Study of Adult Unrepresented Accused in the Provincial Criminal Courts (Part 2: Site Reports)
Chapter 3: Halifax, Nova Scotia (continued)
3.6 Further impacts of lack of representation
3.6.1 Impacts on court officers and others
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a. Legal Aid staff
Interviewees were nearly unanimous in stating that the representation provided by Legal Aid staff was of good quality. However, virtually all interviewees agreed that staff lawyers did not have enough time – often "shooting from the hip" – and there was never time for discretionary work. Some interviewees alleged that trials by staff lawyers might be done "on the fly." Some interviewees suggested that the staff lawyer system was not conducive to putting in the extra time or effort that, for example, a private bar member would put in simply to maintain his reputation.
Some interviewees suggested that legal aid clientele had negative experiences to report, including:
- having difficulty getting in touch with staff lawyers;
- being transferred from one staff lawyer to another;
- being encouraged to plead guilty; and
- not being able to meet with their staff lawyer before trial.
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b. Crown attorneys
Crowns generally would not talk to unrepresented accused or negotiate a plea with them – they would only do so if they couldn't avoid it. However, it was a personal choice of the Crown whether to talk to an unrepresented accused – and some did.
In Halifax, plea negotiation generally took place relatively late in the criminal court process. As noted earlier, there did not seem to be a policy in place to provide the Crown's best offer at a very early stage in the process (as part of a progressive overall case management system).
Among the difficulties noted by Crowns were:
- The necessity of Crown review of the disclosure packet in order to ensure victims and witnesses were not placed in any danger.
- Ensuring that unrepresented accused did not inadvertently reveal to the Crown something that can be used against them – and which might result in the Crown being called as a witness against (or, in some circumstances, for) the accused.
- Trying to resolve a case quickly – more difficult to do when the accused had no counsel and Crown was barred from giving advice to the accused.
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c. Judges
Most interviewees agreed that trials involving unrepresented accused took longer than those of represented persons. Those who did not agree said that unrepresented accused had no idea what questions to ask, and did not think to call witnesses or present important arguments in their defence. Virtually all seemed to agree, however, that trials with unrepresented accused were a difficult process for all.
Those who believed that unrepresented accused trials took longer – many said at least twice as long – suggested that unrepresented accused would, at trial, delay the proceedings by:
- requiring lengthy explanations;
- not stipulating evidence, or waiving processes where a lawyer would;
- becoming emotional, being "on the ceiling," and requiring a break; and
- asking irrelevant questions.
Among the difficulties noted for judges were:
- A higher number of remands ordered by the judge to enable unrepresented accused to get a lawyer (more remands than in represented cases).
- Unrepresented accuseds failing to appear for court. Some Crowns stated that failure to appear was directly correlated with lack of representation.
- Attempting (where time was available) to suggest defences, Charter arguments and arguments to be used at sentencing.
Judges, too, were put in the awkward position of assisting unrepresented accused as best they could. Judges "bent over backwards" to protect the unrepresented accused's rights, and had to take care to respect both the Crown and the unrepresented accused, and not appear biased. Judges had to ensure that, for a unrepresented accused's plea of guilty, the charge was based in evidence. When in doubt, the judge would be required to refuse a guilty plea and set the matter down for trial, but at trial the unrepresented accused generally did a poor job of presenting a defence.
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d. Court workers
Clerks at the registrar's counter indicated that they received a lot of questions from accused who couldn't follow what was happening to them. Unrepresented accused expected clerks to spend more time with them. Clerks found, from the questions asked of them, that unrepresented accused were often still seeking legal advice, or had been given conditions of bail or probation that they couldn't follow (e.g., restrictions on seeing children they were partly responsible for, or curfews that affected their ability to perform or keep their jobs).
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e. Court security
Court staff reported occasional problems with unrepresented accused who were upset. Sheriff's staff at the courthouse reported that they did have security problems with persons in custody who were having problems getting legal assistance – "nine out of ten get pretty pissed off."
3.6.2 Overall impacts on court operations
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a. Court workloads: Length and nature of individual appearances
Length of appearances
In most provincial criminal courts in Canada, only 4-to-10 percent of cases go to trial. The overwhelming majority of appearances for cases are, therefore, not trials – and, as noted earlier, in Halifax (as in other courts), these appearances are typically in the order of one or two minutes per case. What would, in other situations, seem a very minor increase in the time taken to perform a function at a case appearance can, therefore, represent a major increase in judicial, Crown, legal aid, defence counsel and court administration workloads – proportionally and in total.
Our Court Observation data did indicate that concern was present that the unrepresented accused be made aware of the opportunities and benefits of having a lawyer – and the expression of that concern did extend the time taken for individual court appearances.
In one sixth (17 percent) of the appearances, a comment concerning representation was made by either the judge, the accused, the Crown, or duty counsel. In 15 percent of the appearances, the judge asked the accused about his or her representation status or instructed the accused to get a lawyer or apply for legal aid. If asked about his or her representation status, the accused would typically say that s/he wished to have a lawyer, or was in the midst of applying for or getting one. In a handful of appearances observed, the judge refused to accept the accused's guilty plea until s/he had spoken with counsel.
Some interviewees suggested that unrepresented accused generally "tied up the system" and caused lost court time. Virtually all agreed that the system moved more efficiently when the accused was represented. Adjournments for and failures to appear by unrepresented accused wasted a great deal of court time. Cases that "collapsed" and result in a plea of guilty on the day of trial were very costly also.
With respect to appearances prior to trial
To create our Direct Court Observation file, court observers sat in Courtroom 1 (first-appearance/docket court) and captured the time taken by each case/appearance. The results speak directly to the issue of whether appearances of self-represented accused (in the appearances prior to trial) were in fact longer or shorter than those with other types of representation.
As shown in Figure H-11, in the first-appearance/docket court – overall, using the typical or median case as the measure – appearances seemed to be over most quickly when the accused was represented by an agent (median length of appearance, 60 seconds) – and lasted longest for cases represented by duty counsel (median, 300 seconds). In between those extremes were cases in which the accused was unrepresented, or represented by Legal Aid staff lawyers other than duty counsel (median, 120 seconds).
From a court resources perspective, it is perhaps a positive result to have unrepresented cases over more quickly than those being represented by duty counsel. However, from an access to justice perspective, there may be reason to be concerned that, when a duty counsel is involved in a first appearance, more time is spent dealing with the case.
Paraphrasing one of those interviewed, "Unrepresented accused tend to do things more quickly than they should. Lawyers add time for good reason."
Figure H-11. Case/Appearances: Distribution of Time (seconds) for different types of Case/Appearances By Type of Representation , Halifax
Appearance Number at which Plea was Entered 25th/ median/ 75th percentile times for case/appearances represented by All Types of Represen-tation* Self Duty Counsel Staff Legal Aid Paralegal All appearances in First-appearance/ docket court 25th =60 50th =120 75th =180 (n=50) 120 300 420 (n=65) 60 120 180 (n=40) 60 60 120 (n= 27 ) 60 120 240 (n=210)
By Result of Appearance Appearance Number at which Plea was Entered 25th/ median/ 75th percentile times for case/appearances represented by All Types of Represen-tation* Self Duty Counsel Staff Legal Aid Paralegal Remand or Stood Down 25th=60 50th =120 75th =1800 (n=40) 120 240 360 (n= 51) 60 120 120 (n=32) 60 90 120 (n= 22) 60 120 180 (n=172) Final 25th = 65 50th =180 75th =300 (n=10) 300 420 825 (n=12) ** ** 180 240 420 (n=33) Source: Direct Court Observation file.
- * Totals for all types of representation includes agents and accused no-shows.
- ** Less than 10 case/appearances.
An attempt was also made to differentiate between case/appearances that resulted in a remand or a final disposition. Unfortunately, too few case/appearances were present in the database to consider the latter. Nonetheless, as shown in Figure H-11, case/appearances that resulted in a remand, and in which the accused was self-represented (together with cases represented by non-duty counsel staff lawyers), were again between the extremes of cases represented by duty counsel (longest) and cases represented by paralegals (medians of 120, 240 and 90 seconds, respectively).
Another factor that would add to the time taken by a case on a court docket would be the process of "standing down" a case to later in the day to complete consideration of any matters that day. In fact, our court observer only rarely saw a case being stood down (only seven in 213 case appearances). Comparisons among cases with different types of representation would therefore be irrelevant. On the other hand, the low probabilities of a case being stood down were consistent with parties (including duty counsel) being prepared to deal with a case when it came before the court.
Events occurring at individual court appearances
Interviewees noted that the efficiency of the entire system was much greater when the accused was represented – "wasted" appearances were reduced, useless discussions and arguments were largely eliminated, and work was concentrated on what was relevant.
The court observation data also yielded some information about how many appearances (in first-appearance/docket courts) were "productive," in the sense that they resulted in decisions on (or, at least, consideration of) one or more of three matters: namely bail, plea, and elections. Figure H-12 shows the breakdown of courtroom events (or non-events) according to representation status at last appearance. The columns in the left half of the table show data for "interim" (i.e., non-final) appearances. The columns in the right half of the table show data for final appearances.[32]
With respect to interim appearances, one of the most striking observations is that, overall, appearances in a case were most likely not to involve consideration of bail, elections, or the entering of a plea (see column 2 – "no decision") if the accused was unrepresented (probability, 52 percent). However, appearances that were, in that sense, "unproductive," were almost as frequent when the accused was represented by duty counsel (55 percent) or other Legal Aid staff lawyer (53 percent). The proportion of such appearances was much lower for appearances involving a private lawyer (36 percent).[33]
The numbers of final appearances observed (i.e., the right-most columns in Figure R-12) were small – only 33 in total. No conclusions can be made from these scant data, but they suggest an interesting line of future inquiry regarding the value of having duty counsel for obtaining a dismissal, not guilty or other favourable verdict.
- * Totals for all types of representation includes agents and accused no-shows.
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b. Workloads: Number of appearances per case
Court schedules appeared, at the time of the site visit, to be driven by time delays built into the legal aid application, approval and access system, although, as noted above, new directives may address this problem. Some interviewees were also of the view that there was a certain segment of the accused population who were aware of the delays inherent in the legal aid process, and took advantage of these delays in order to obtain successive postponements of their case. In the words of one interviewee, "The judges are being held hostage by unrepresented accused." (The reverse phenomenon was also seen – of accused who "just wanted to get it over with," and pled guilty with or without the assistance of counsel.)
Most interviewees appeared to agree that unrepresented accused slowed down the court process, since they did not benefit from the skill that an experienced lawyer would apply to move the process along expeditiously. For example, lawyers would usually waive reading of the charges, while unrepresented accused would not. Multiple postponements before a trial date is set were common for accused who were unrepresented; some judges would grant two or three adjournments in hopes the accused would obtain counsel, while others would grant more. Such appearances were costly for the courts and its officers. After a number of unproductive appearances, some judges attempted to move the process forward by decreasing the length of remands to get counsel.
Reasons for remands at early appearancesThe Direct Court Observation file provided information to at least initiate an exploration of the reasons for remands – and the results showed that a very small percentage (one percent) of the reasons for granting remands were related to obtaining counsel.[34]
If these results were to apply when data from a larger sample of case/appearances were obtained, then they would certainly indicate that remands to obtain legal assistance were not a significant source of delays.
Appearances before a plea is enteredA second direct indicator of the workloads caused by – and resources required to deal with – cases is the appearance numbers at which key activities take place.
Figure H-13 shows the appearance number at which the plea was entered for accused who had various types of representation. The data suggest that self-represented cases in general did not generate more appearances before entering a plea:
- There was a significant group of unrepresented accused who pled guilty early in the process. – these data suggest half the self-represented accused entered a plea at the first or second appearance, and at least one quarter entered a plea at the first appearance. (This may be – as suggested by interviewees – "just to get it over with." However, there may be other explanations for this phenomenon.)
- Self-represented accused entered their plea at an earlier appearance than accused who had counsel of any type. Half the accused represented by legal aid other than duty counsel did not enter a plea until at or after the fifth appearance.
- Half the cases represented by duty counsel or private bar members took three or more appearances before entering a plea – one more appearance than self-represented accused (two), but less than the number of appearances for cases with other legal aid lawyers (five).
- A quarter of the accused represented by legal aid (other than duty counsel) did not enter a plea until at or after the seventh appearance, and a quarter of the accused represented by private counsel did not enter a plea until at or after the fifth appearance.
Figure H-13. Disposed Cases: Distribution of Appearance Number at Which Plea was Entered by Type of Representation at Plea Appearance, Halifax Appearance Number at which Plea was Entered Represented by All Types of Representation Self Duty Counsel Other Legal Aid Private Counsel 25th Percentile 1 2 3 2 2 Median 2 3 5 3 3 75th Percentile 3 4 7 5 6 95th Percentile 10 8 11 12 10 Total Cases 64 47 126 97 334 Notes
* If plea was entered at more than one appearance, last appearance at which plea was entered is shown.Total number of appearances before disposition
Figure H-14 shows the total number of appearances in the case – according to representation type at last appearance.
Figure H-14. Disposed Cases: Distribution of Number of Appearances in Case by Type of Representation at Final Appearance, Halifax Number of Appearances Represented by All Types of Repre-sentation Self Duty Counsel Other Legal Aid Private Counsel No Appear-ance* 25th
Percentile2 2 4 2 2 2 Median 2 3 5 4 4 4 75th Percentile 4 5 8 7 8 7 95th Percentile 8 14 14 13 n/a 13 Maximum 23 20 21 26 10 26 Total Cases 116 66 186 127 13 508 Notes
* This group would include cases where the charges were stayed, withdrawn or dismissed.
The data suggest that self-represented cases did not take more court appearances overall – in fact, they took fewer appearances. More specifically:
- Half the accused unrepresented at last appearance were disposed after only one or two appearances, as compared to three, four or five by accused represented at last appearance by duty counsel, by private counsel and by legal aid other than duty counsel (respectively).
- A small minority of cases resulted in an extraordinary number of appearances – five percent of all accused appeared 13 or more times in the case, and five percent of unrepresented accused made eight or more appearances.
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c. Elapsed time for cases to resolve
The disposed cases sample also yielded information about the time elapsed between the first and last appearance. This information is important from a due process perspective – however, that perspective yields two potential hypotheses: first, "Justice delayed is justice denied," and second, "Justice rushed is justice crushed."[35] The first concern is relevant to those who feel that delays in obtaining legal representation adversely affect the fairness of the court process and the final outcome. The second concern is especially relevant to those concerned that an unrepresented accused may plead out the case early "to get it over with," or because they are not aware of viable legal defences.
As shown in Figure H-15:
- Cases represented by duty counsel took the least time to resolve – a quarter were settled in a day, and half were settled within five weeks.
- As noted above, cases self-represented at last appearance made fewer appearances, and this was reflected in the fact that, apart from duty counsel cases, cases of unrepresented accused took less time to resolve than others. A quarter took one week or less, and half took 14 weeks or less.
- Cases represented at last appearance by legal aid took considerably longer. A quarter took 17 weeks or less and half took 29 weeks or more to resolve.
- Cases represented by private counsel at last appearance took more time to be resolved than did unrepresented cases, but less time than legal aid cases other than duty counsel.
- A quarter of all cases took eleven months or more to be resolved.
Figure H-15. Distribution of Time (in weeks) Between First and Final Appearance By Type of Representation at Final Appearance, Halifax Time (in weeks) between First and Final Appearance when Represented by All Types of Representation Self Duty Counsel Other Legal Aid Private Counsel 25th Percentile 1 0.1 17 5 7 Median 14 5 29 25 22 75th Percentile 29 21 54 47 46 95th Percentile 100 81 121 105 103 Maximum 400 567 254 179 567 Total Cases 116 66 186 127 508 Notes
Source: Disposed Cases Sample.
[32] The figure omits three cases in which the accused's representation status was unclear to the court observer.
[33] These figures may reflect the high number of cases in which duty counsel represent in-custody cases at their bail hearing.
[34] The largest percentage of remands was to plea (45 percent). It is, however, noteworthy that 16 percent of the remands were because the accused did not show for his or her appearance in court.
[35] The latter phrase was first suggested to one of the authors by a widely respected colleague, Carl Baar.
