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

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Chapter 4: Brandon , Manitoba (continued)

4.3 Frequency of accused appearing without representation

4.3.1 Self-representation over the life of the case

As shown later, the interviews and the analysis of the data specially collected for the project indicate that not having representation has significant implications for the accused – and for other groups involved in the court process. It is therefore important to start by describing how frequently self-represented accused appear at different stages of the court process.

It is not a simple matter to categorize cases with respect to representation received. An accused's representation status will often change from one appearance to the next, as, for example, when an accused may be represented by duty counsel at the bail hearing, but be represented by a private bar member afterwards.

For Brandon, given the nature of both the Court Observation file and the Three Month Docket data file, we were not able to track the patterns of representation over the life of each case. Instead, both files focus on whether specific individual case/appearances (or perhaps several in a case) were associated with certain events – and the type of representation at each of those case/appearances.

However, once the CCAIN automated system has been operational for a longer period of time, it will contain the full past appearance history of a sufficient number of disposed cases. It will then be possible to create an accurate picture of how representation develops and changes between the first and last appearance of a case.

4.3.2 Self-representation at selected stages in the court process

Key informants suggested that, ironically, under the "extended duty counsel system," since duty counsel provided whatever help was required by the unrepresented accused at the early stages of the court process, unrepresented accused were least likely to be found at those stages. Conversely, unrepresented accused were most likely to be found at the trial stage, for which Legal Aid officials had to verify the accused's financial eligibility and qualifications under the coverage criteria before issuing a Legal Aid Certificate. Only then would Legal Aid staff – or a member of the private bar, if chosen by the accused – commit the time required to conduct a trial. All in all, interviewees were unanimous in believing that very few unrepresented accused would be found in Brandon, other than at the trial stage.

As noted earlier, the Direct Court Observation data are considered to be a more accurate reflection of the numbers and proportions of unrepresented accused in the Brandon court.

For the 522 case/appearances observed:^[45]

• Overall, 10 percent involved an accused who was unrepresented:
  • Nine percent of case/appearances not resulting in a final disposition were without representation. Almost half of the case/appearances observed resulted in an adjournment.
  • Fourteen percent of case/appearances resulting in a final disposition were without representation.

Analogous estimates can also be developed from the Three Months Docket sample. However, as noted earlier, the local coder who added the representation data by examining court clerks' manual notes on the dockets indicated that the representation notes appeared to be incomplete in many instances – and her recollection of specific cases and their progress was that many cases that she knew had been represented were noted as not having been represented. In addition, our interviews with key informants were unanimous in suggesting that unrepresented accused were a rarity in the Brandon court, except at trial for certain types of offences. When unrepresented accused did appear at the beginning of an appearance, they were referred to duty counsel by either the judge or the Crown. A number of persons indicated that unrepresented accused were "not an issue" in Brandon.

Nonetheless, for completeness, estimates derived from that second data source are shown here (and are compared to the preferred estimates).

Figure BR-2: Comparisons of Estimates of Self-Representation from Different Sources*

	Data Source
	Direct Court Observation	Three Month Dockets
First Appearances	n/a	31%
Non-final Appearances	9% (including first appearances)	22 % (excluding first appearances)
Final Appearances	14%	26%
Total	10%	24%

* All data related to case/appearances in docket courts.

Clearly the differences are considerable. Before using the data on representation in the manual court records for similar studies, further investigation is indicated to understand the conventions for recording such data.

Even with the lower levels of self-representation shown by the Direct Court Observation sample, if one accepts the opinion of many of those interviewed – in Brandon and in other sites in the study – that having representation at all stages of the court process is important to the fair and efficient disposition of cases, the existence of lack of representation (at some point in the criminal process) is relevant from both a policy and operational perspective.The remainder of this report will both question this assumption and explore the prevalence and impact of self-representation in more detail.

4.3.3 Self-representation by category of offence

According to interviewees, the criminal charges most likely to be faced by unrepresented accused are shoplifting and first-offence impaired driving, since a custodial sentence is unlikely in these cases. (Shoplifting cases are, in fact, usually diverted, but, as noted earlier, duty counsel will explain the implications of diversion to persons charged with shoplifting.) Persons appearing in "peace bond" (s. 810) applications or violations are also generally unrepresented. Other, non-criminal cases where representation is unlikely involve Highway Traffic and Wildlife, Fish and Game offences.

Using data from the Direct Court Observation file, Figure BR-1 shows the proportions of unrepresented accused, according to the most serious charge in the case and the type of appearance (interim or final).

Figure BR-3. Proportion of Case/Appearances Involving Unrepresented Accused by Most Serious Charge Category, Brandon* Preferred Source of Statistics

Most Serious Charge Category	Type of Case Appearance
	Not-final (%)	Final (%)	Total
			%	(Number
Homicide	***	***	***	(5)
Sexual Assault	0		0	(28)
Assaults excl. Common	11	8	10	(108)
Robbery	***	***	***	(4)
Break and Enter	5	***	8	(23)
Impaired Driving	***	***	***	(7)
Common Assault	8	10	8	(60)
Drugs excl. Simple Possession	***	***	***
Weapons Offences	***	***	***	(2)
Thefts and Frauds	8	18	10	(83)
Simple Possession of Drugs	***	***	***	(1)
Offences against Administration of Justice	11	10	11	(99)
Public Order	***	***	***	3

Miscellaneous Criminal Code

Most Serious Charge Category	Type of Case Appearance
	Not-final (%)	Final (%)	Total
			%	(Number
Other Federal Statutes & Provincial or Municipal Laws	12	3	23	(34)
Total: All Offence Types %	9	14	10
Number	(406)	(113)		(519)

• * Data Source: Direct Court Observation Sample.
  
• *** The cell contains too few cases to report a percentage

The information in Figure BR-3 suggests that:

• for all offences, the likelihood of an offender being unrepresented seldom rose above one or two in 10; but
• offence categories that were less likely to result in imprisonment were also more likely to be associated with lack of representation (provincial or municipal statute violations, and thefts and frauds, for example).

Again, caution must be exercised in using the analogous numbers (in Figure BR-4) from the Three Month Docket sample – which, according to the court observation data and the key informant interviews, may overstate the proportions of unrepresented accused by as much as 150 percent.

The implications of the statistics in Figure BR-4 are consistent with those in Figure BR-3:

• Offence categories that are less likely to result in imprisonment – impaired driving, provincial or municipal statute violations, and miscellaneous Criminal Code offences – are also more likely to be associated with lack of representation.
• More serious offences, like homicide and robbery, are associated with a lesser prevalence of unrepresented accused, as are weapons offences.

Figure BR-4. Proportion of Case/Appearances involving Unrepresented Accused by Most Serious Charge Category, Brandon* ¹

N.B. Because of Data Problems, only relative values among cells from one row to another should be considered

Most Serious Charge Category	Proportion of Appearances with Unrepresented Accused			Unrep-resented Appear-ances as Proportion of All (%)	Total Number of Case/ Appear-ances
	First (%)	Interim (%)	Final (%)
Homicide	N/a	8	n/a	6	31
Sexual Assault	33	23	0	23	105
Assaults excl. Common	35	22	25	25	400
Robbery	N/a	13	n/a	11	18
Break and Enter	35	23	17	24	98
Impaired Driving	43	34	22	33	180
Common Assault	20	25	24	24	253
Drugs excl. Simple Possession	32	27	33	28	81
Weapons Offences	27	13	14	15	73
Thefts and Frauds	27	19	31	22	636
Simple Possession of Drugs	48	24	17	29	75
Offences against Administration of Justice	30	20	21	23	724
Public Order	n/a	***	***	n/a	5
Miscellaneous Criminal Code	33	23	60	46	52
Other Federal Statutes	n/a	***	n/a	***	9
Provincial or municipal laws	100	55	20	57	21
All Offence types – cases	504	1699	558		2761

Notes
¹ Source: Three Month Docket file – All percentages may overstate the proportions of unrepresented accused by as much as 150 percent.
* Excludes cases for which representation was unspecified in the file.
*** The cell contains too few cases to report a percentage.

4.3.4 Socio-demographic characteristics of unrepresented accused

Interviewees said there were no other characteristics that appeared to all respondents to be common to unrepresented cases. Some interviewees speculated that such persons would be, variously:

• people who did not wish to disclose their finances; persons who did not wish to pay for their own lawyer but wished to go to trial;
• people who wished to represent themselves out of lack of trust in the criminal justice system, generally;
• people who wished to use their case in order to advocate a cause, such as Aboriginal hunting rights;
• people who wanted to appear in their own defence; and
• people who raised so many barriers to obtaining Legal Aid help that they were refused.

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[45] Court observation data were directly coded onto a form that captured – as one record – all data on all counts observed in a case/appearance.

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