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

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Chapter 5: Edmonton, Alberta (continued)

5.3 Frequency of unrepresented accused

There was general agreement among the key informants in Edmonton that trials involving unrepresented accused were rare. Otherwise, our informants were unsure as to the actual numbers of unrepresented accused one might encounter in the Edmonton courthouse. It was noted that unrepresented accused would sometimes appear at docket court to set a trial date, indicate that they would be seeking legal aid or hiring a lawyer privately, then appear on the date set for trial without counsel and plead guilty. Unrepresented accused were most often observed in docket court, where duty counsel was available to assist them. It was estimated that about 50 percent of bail hearings were held in docket court, where duty counsel was available. The remainder were held in the Edmonton Hearing Office during evenings and weekends, where accused were "on their own," unless they had retained private counsel.  In such cases, justices of the peace would allow accused persons to retain counsel before the hearing proceeded. In any event, bail could later be re-opened in Provincial Court by consent of both the Crown and defence. It is also possible to reverse an earlier decision to deny bail through an appearance in Court of Queen's Bench.

5.3.1 Overview of representation

It is apparent from the Disposed Cases file that it is not possible to characterize representation over the life of a case in any simple manner. 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 self-represented afterwards.

Readers should note that throughout this report, references to "private counsel" encompass both privately retained counsel and private counsel paid through legal aid.  For purposes of this study, we were not able to make this distinction in our collection or analysis of either the Disposed Cases data or the Court Observation data.

Looking at the pattern of representation over all appearances, our analysis of data from complete records of 620 randomly selected cases completed in late 2000 and 2001 indicates the following:

• At first appearance, 49.7 percent of criminally accused adults in Edmonton Provincial Court were unrepresented. An additional 26.3 percent used the services of duty counsel, and 19.3 percent had private counsel.
• At second appearance (if any), the proportion of criminally accused adults in Edmonton Provincial Court who were unrepresented declined sharply to 24.9 percent. An additional 23.7 percent used the services of duty counsel, and 43.3 percent had private counsel.
• At third appearance (if any), only 17.5 percent of criminally accused adults in Edmonton Provincial Court were unrepresented. An additional 9.7 percent used the services of duty counsel, and 60.3 percent had private counsel.
• At final appearance (for accused making multiple appearances only), 17.3. percent of criminally accused adults in Edmonton Provincial Court were unrepresented. An additional 7.0 percent used the services of duty counsel, and 71.0 percent had private counsel.
• For at least one appearance, 64.4 percent of criminally accused adults in Edmonton Provincial Court had private counsel.
• Fifteen percent of criminally accused adults in Edmonton Provincial Court had private counsel for all of their appearances.
• At all of their appearances, 14.2 percent of criminally accused adults in Edmonton Provincial Court were unrepresented by any counsel.
• Duty counsel represented 2.3 percent of criminally accused adults in Edmonton Provincial Court at all of their appearances.

5.3.2 Self-representation by category of offence and stage of process

The general view among our key informants was that accused facing serious charges would, with few exceptions, have a lawyer "one way or another." Most unrepresented accused were believed to face relatively minor charges, the most frequently mentioned being impaired driving, shoplifting, communicating for prostitution, mischief, obstruction and breaches.

The disposed cases sample indicates the proportions of accused at each appearance who were unrepresented.  Figure E-1 displays this information according to the category^[51] of the most serious charge in the case.

Figure E-1. Proportion of Accused who were Unrepresented At Key Appearances, by Most Serious Charge Category, Edmonton

Most Serious Charge Category	Proportion of Unrepresented Accused at					Total Number of Cases (all accused)
	First (%)	Bail (%)	Plea (%)	Defence Election (%)	Final (%)
Homicide	***	***	***	***	***	0
Sexual Assault	***	***	***	***	***	8
Assaults excl. Common	52	29	11	21	10	48
Robbery	***	***	***	***	***	3
Break and Enter	53	27	13	12	21	19
Impaired Driving	23	33	21	14	14	35
Common Assault	50	42	4	22	8	62
Drugs excl. Simple Possession	80	20	9	43	20	15
Weapons Offences	54	0	0	23	0	13
Thefts and Frauds	49	38	24	31	26	108
Simple Possession of Drugs	80	67	31	56	55	20
Offences against Administration of Justice	46	33	22	31	30	265
Public Order	70	67	30	50	30	20
Total	50	34	18	29	24	620

Notes: 
***  The cell contains too few cases to report a percentage.

The data in Figure E-1 indicate that:

• Unrepresented accused were most often encountered at first appearance.
• The proportions of unrepresented accused generally declined across appearances.
• Accused persons charged with drug offences were relatively more likely to be unrepresented at first appearance than were persons charged with other types of offences.
• Accused persons charged with simple possession of drugs were more likely than persons charged with other types of offences to be unrepresented across all appearances, followed by persons charged with public order offences.
• Accused persons facing charges of impaired driving were least likely to be unrepresented at first appearance

5.3.3 Socio-demographic characteristics of unrepresented accused

Most respondents did not identify any specific characteristics of accused they would associate with a lack of representation. Those who did made reference to the working poor, meaning those who fell outside the financial eligibility guidelines for legal aid.  Mention was also made of accused with the mistaken belief that the victim would not pursue the charges (for example, in domestic violence cases and cases of employee theft), and persons who were simply disorganized, meaning that they did not get to Legal Aid or complete an application. Some unrepresented accused were also individuals who were denied legal aid for coverage reasons (i.e., no prospect of incarceration or loss of livelihood on conviction for a summary offence).

5.3.4 Other types of representation

Figure E-2 displays the representation provided by counsel of various types at key stages of the criminal process.  These data indicate that:

• Duty counsel took only a limited proportion of cases to plea (14 percent) and final resolution (11 percent).
• Private counsel assisted a significant proportion of accused at some, but not all stages: 19 percent of all accused at first appearance; 46 percent of all accused at bail; 61 percent at plea; 26 percent at defence elections; and 62 percent of all accused at final appearance. 

Figure E-2. Distribution of Representation Type By Appearance Type, Edmonton

Appearance	Represented by			Number of Cases
	Self (%)	Duty Counsel (%)	Private Counsel (%)
First appearance	49	26	19	616
Bail	34	16	46	250
Plea	18	14	61	470
Defence Election	29	39	26	586
Final Appearance	24	11	62	620

Note.    Percentages may not total to 100 due to rounding.

Figure E-3 shows the most serious offence charged in cases with different types of representation at the final appearance. These data indicate that:

• The offences that had a comparatively higher frequency of self-representation at final appearance were the relatively minor offences, categorized as simple possession of drugs, and, to a lesser degree, administration of justice and public order offences.
• The offences that had a lower frequency of representation by duty counsel at final appearance were the relatively serious offences, categorized as assaults (excluding common assault), break and enter, and drugs (excluding simple possession).
• The offences that had a relatively higher frequency of private counsel representation at final appearance were the more serious offences, categorized as assaults, break and enter, impaired driving, drug offences (excluding simple possession) and weapons offences.

Figure E-3. Distribution of Representation Status at Final Appearance By Most Serious Charge Category, Edmonton*

Most Serious Charge Category	Proportion of Cases represented by			Number of Cases
	Self %	Duty Counsel %	Private Counsel %
Homicide	***	***	***	0
Sexual Assault	***	***	***	8
Assaults excl. Common	10	4	79	48
Robbery	***	***	***	3
Break and Enter	21	0	74	19
Impaired Driving	14	9	71	35
Common Assault	8	8	76	62
Drugs excl. Simple Possession	20	0	80	15
Weapons Offences	0	8	92	13
Thefts and Frauds	26	11	56	108
Simple Possession of Drugs	55	10	30	20
Offences against Administration of Justice	30	14	55	265
Public Order	30	15	45	20
All Offences	24	11	62	620

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[51] See Appendix A for a listing of the offences contained in each of the "offence categories."

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