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Court Site Study of Adult Unrepresented Accused in the Provincial Criminal Courts (Part 2: Site Reports)
Chapter 5: Edmonton, Alberta (continued)
5.4 Evidence on the impacts of lack of representation
5.4.1 Perceived impacts of a lack of representation
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a. Impacts on the accused
The site visit interviews provided some interesting insights on the perceived impacts of a lack of representation on accused persons in Edmonton Provincial Court. Some key informants in Edmonton were of the view that unrepresented accused suffered significant impacts from their lack of representation. Other interviewees tended to the view that, if a case reached the sentencing stage, the sentence might (or might not) be just as fair, or even less harsh, but more unrepresented accused cases reached the conviction and sentencing stage than did represented cases.
Among the impacts cited by the former were the following:
At trials: Opinion was quite varied as to the impact of a lack of representation at trial on an accused. These comments were offered in the context of a general perception that unrepresented accused at trial were quite rare, especially if the charges were serious.
Negative impacts that were suggested included:
- Being found guilty on more charges.
- Receiving a harsher sentence.
- Facing a higher risk of conviction.
These negative impacts were seen as arising from a number of factors, including:
- The inability of unrepresented accused to plea-bargain.
- Their lack of knowledge of the typical range of sentences for the charges on which they were convicted.
- Their inability to objectively assess which options were in their best interests.
- When unrepresented accused testified, they might convict themselves, when they might have been found not guilty if they had stayed silent (which counsel might have strongly advised).
On the other hand, some of our interviewees believed that sentences may be lower for unrepresented accused because:
- Judges may try harder to find mitigating factors when unrepresented accused plead guilty.
- Judges may impose lighter sentences when an accused self-represents.
At stages before trial: Opinion was quite uniform as to the impact of a lack of representation at stages before trial. Bail court (Edmonton Hearing Office) was generally seen as the stage at which representation levels were the lowest. It was recognized by some respondents that being denied bail and held in custody could provoke some unrepresented accused to plead guilty to "get it over with." Some unrepresented accused were described as making important decisions about bail, without assistance. It was suggested that they would be better off waiving their bail hearings at EHO on the weekend or overnight, and waiting for the next docket court so that duty counsel would be available to assist with their bail hearings.
More generally, representation at the earliest stages was seen by our key informants in Edmonton as very important, and not completely covered by the services of duty counsel. Opinions along this line included:
- It is most important to have representation at the initial stage, even before docket, so that the accused understands both the charges and the choices to be made.
- Crowns will not plea-bargain with unrepresented accused. As a result, they may be convicted on more charges. However, these negative impacts may be offset by the judge during sentencing.
- Unrepresented accused miss opportunities for alternative measures and diversion.
- They don't know how to bargain with the Crown or properly present their defence.
- Unrepresented accused don't know that they need to obtain and read their disclosure packages.
- Bail seems the most obvious gap in the services provided by duty counsel. A great need is seen for representation at bail hearings (although adverse decisions can be reversed later at Queen's Bench).
- Unrepresented accused have to make repeated appearances (to get counsel, to get disclosure, to make elections) so the process is slower, and more drawn out than it might be with counsel.
The key informants were also asked to identify the types of errors made most often by self-represented accused. Included on this list were:
- Unrepresented accused couldn't objectively assess the facts of the cases against them – did not know when to cut bait, deal.
- Unrepresented accused didn't know how to bargain, or properly present their defence.
- Unrepresented accused didn't know the "going rate" for sentences.
- Unrepresented accused didn't know the "best" judges.
- Unrepresented accusedadmitted to things that were not helpful to their cases.
- Unrepresented accused asked witnesses questions that were unhelpful.
- Unrepresented accused tried to explain their behaviour, including where the explanation made it clear that a defence existed, negating a prior guilty plea and leading to a trial – that although it may yield a better outcome.
- Unrepresented accused made poor tactical decisions, and couldn't objectively assess prospective risks.
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b. Impacts on court officers and others
Judges in Edmonton typically make considerable efforts to explain the process to unrepresented accused, and to try to guide them through their points of choice. This is both time-consuming and places the judges in the uncomfortable position of seeming to "bend over backwards" or "become the guardian of the accused's interests," when their function is to independently try the facts of the case. Crowns may also assist in ways that have the effect of leveling the field. Defence counsel may also volunteer to assist unrepresented accused when in the courtroom on another matter.
More specific points raised on the impacts of unrepresented accused on the duration of court proceedings included:
- Unrepresented accused didn't know to admit evidence so more witnesses and evidence were called than would have beeen the case if a lawyer was involved.
- Unrepresented accused wouldn't know to narrow issues, so trials took longer.
- There would be wasted appearances for witnesses if unrepresented accused asked for adjournments on trial dates.
5.4.2 Empirical findings regarding a lack of representation
The preceding section described the perceptions of those interviewed regarding the impacts of accused appearing before the court without representation. In this section we provide empirical evidence on what actually happened to unrepresented accused, using data on cases in the Disposed Cases file and from the appearances directly observed in court.
It is, however, important to make it clear at the outset that the information in this section is not presented to draw causal inferences, but simply to describe the events at various stages in the process. For instance, the evidence is not presented to suggest that the lack of representation caused, for example, a higher (or lower) likelihood that an unrepresented accused would be convicted. Rather, it simply describes whether or not, and how frequently, significant decisions were made and certain outcomes occurred with or without the presence of counsel.
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a. Type of plea entered by type of representation
A number of our key informants in Edmonton expressed the view that unrepresented accused might be more likely to plead guilty – for instance, to "get it over with," or because they had neither the knowledge nor resources to contest the charges.
Figure E-4 displays the plea entered by the type of representation available to the accused at that appearance. These data indicate that:
- Overall, 55 percent of all pleas were guilty pleas.
- Guilty pleas were entered in 72 percent of cases assisted at that appearance by duty counsel. This was almost exactly the same proportion as the guilty plea rate of unrepresented accused.
- Accused represented by the private bar were much less likely to enter a guilty plea (50 percent).
Figure E-4. Distribution of Type of Plea Entered By Type of Representation at Plea Appearance, Edmonton* Plea Proportion of all Pleas by or on behalf of Accused Represented by Number of Cases Proportion of Cases Self Duty Counsel Private Counsel Guilty 73% 72% 50% 333 55% Not guilty 27% 28% 50% 272 45% Total Cases 100% 100% 100% 605 100% -
b. Conviction rate by type of representation
Conviction rates (including those resulting from guilty pleas) were also examined in terms of representation at final appearances.
Figure E-5 shows conviction rates by representation at final appearance. These data suggest that:
- Overall, 58 percent of all disposed cases resulted in convictions on at least one charge.
- The conviction rates were lowest (53 percent) for accused who were self-represented, followed by those for accused represented by private counsel (58 percent) and accused assisted by duty counsel (79 percent).
Figure E-5. Distribution of Disposition by Type of Representation at Final Appearance, Edmonton Disposition Proportion of Dispositions For Accused Represented by Number of Charges Proportion of Charges Self Duty Counsel Private Counsel Convicted* 53% 79% 58% 360 58% Not Convicted** 47% 22% 42% 259 42% Total Cases 100% 100% 100% 619 100% Notes :
- * Includes guilty pleas, guilty verdicts and peace bonds ordered.
- ** Includes not guilty, withdrawn, dismissed, stayed, and discharges.
Earlier, we cautioned against using these data to imply a causal connection between type of representation and conviction rates. Factors associated with individual cases, such as the number and seriousness of the charges, and the accused's criminal record, are likely to affect both the type of legal representation provided to the accused and the likelihood of conviction. However, given the impact of having a criminal record (on employment opportunities and the likelihood of being charged with further offences, etc.), the data can definitely be used to show that unrepresented accused are very likely to experience serious negative impacts as a result of the court process.
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c. Custodial sentence and type of representation
The proportion of cases that resulted in custodial sentences was examined in terms of representation at final appearance.
Figure E-6 shows the distribution of custodial sentences for cases disposed at final appearance by type of representation. The Figure suggests that:
- Overall, 32 percent of all disposed cases resulted in a custodial sentence.
- Unrepresented accused fared best of all (27 percent custodial rate); followed by cases with private counsel (33 percent). Cases finalized with duty counsel had the highest imprisonment rate (49 percent).
Figure E-6. Distribution of Custodial Sentence by Type of Representation at Final Appearance, Edmonton Sentence Represented by Number of Cases Proportion of Cases Self Duty Counsel Private Counsel Custodial Sentence 27% 49% 33% 199 32% No Custodial Sentence 73% 51% 67% 421 68% Total Cases 100% 100% 100% 620 100% Again, we caution against using these data to imply a causal connection between type of representation and likelihood of receiving a custodial sentence. Factors associated with individual cases, such as the number and seriousness of the charges, and the accused's criminal record, were likely to affect both the type of legal representation provided to the accused and the likelihood of a custodial sentence. However, the results are directly relevant from another important perspective. Specifically, it is accepted that eligibility for legal aid should depend (in part) on the likelihood of a case receiving a custodial sentence. Although one cannot expect to predict with total accuracy whether a case will result in a custodial sentence, it is relevant that custodial sentences were received by about one in four self-represented accused in Edmonton.
5.4.3 Overall impacts on court operations
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a. General
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 Edmonton (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 confirm that efforts were made in the courtroom to make unrepresented accused aware of the opportunities and benefits of having a lawyer. In 12 percent of appearances by unrepresented accused, and 23 percent of appearances assisted by duty counsel, comments were made, mostly by judges, concerning representation. In these appearances, the judges asked the accused about his or her representation status or instructed the accused to get a lawyer or apply for legal aid. In a handful of appearances observed, the judge informed the accused that if s/he failed to retain counsel for his or her next appearance, the trial would proceed regardless.
Some of our key informants in Edmonton expressed the view that unrepresented accused often caused court time to be spent unproductively. 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 resulted in a plea of guilty on the day of trial were very costly also.
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b. Nature and length of 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 is relevant.
The Court Observation data yielded some information about how many appearances 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 E-7 shows the breakdown of courtroom events (or non-events) at interim (meaning other than final) appearances according to representation status at last appearance.
Figure E-7. Court Observation Data: Percentage Distribution of Cases: Type of Decision Made by Representation Status At Interim (not Final) Appearances, Edmonton * Represented by Type of Decisions at Interim Appearances (Remanded or Stood Down) ** No decision Bail considered, plea entered and/or election made Total number of Appearances Self 86% 14% 190 Duty counsel 42% 58% 191 Private lawyer 66% 34% 299 Total Appearances 65 35 680 Notes:
- * Appearances for which data were unavailable or unclear are not included.
- ** Bail not considered, no elections made by either Crown or defence, and no plea entered.
One of the most striking observations is that, overall, almost two thirds of interim appearances (440 of 680 observed) did not involve consideration of bail, elections, or the entering of a plea, making them, in a sense, unproductive. However, appearances that were, in that sense, "unproductive" were most frequent when the accused was unrepresented (86 percent) or represented by private counsel (66 percent). The lowest proportion of such appearances (42 percent) occurred with appearances involving duty counsel.[52]
The court observation also yielded data on the length or duration of individual court appearances. Figure E-8 summarizes these data by representation type. The general conclusion supported by these data is that appearances by self-represented accused were typically somewhat shorter in duration than were appearances for accused assisted by duty counsel or private counsel.
Figure E-8. Distribution of Appearance Durations (in minutes) by Type of Representation at Final Appearance, Edmonton Appearance Duration (in minutes) when Represented by Self Duty Counsel Private Counsel 25th Percentile 0.0 1.0 1.0 Median 1.0 1.0 1.0 75th Percentile 1.0 3.0 2.0 95th Percentile 4.0 7.7 9.6 Total Appearances 203 245 347 - * Appearances for which data were unavailable or unclear are not included.
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c. Number of appearances per case
Most of our key informants in Edmonton were of the view that unrepresented accused slowed down the court process, since they did not benefit from the skill that an experienced lawyer would be able to apply to move the process along expeditiously. For example, lawyers would often 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 might repeatedly grant adjournments in hopes the accused would obtain counsel. Such appearances were costly for the court 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.
A direct indicator of the workloads caused by – and resources required to deal with – cases is the number of court appearances required to complete a case.
A related indicator is the appearance number at which key activities take place.
The Disposed Cases sample yielded information on these measures for appearances made by accused who were or were not represented.
Appearances before a plea is entered
Figure E-9 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, as well as those involving duty counsel, did not generate more appearances before a plea was entered, especially in comparison to cases handled by private counsel:
- At least 50 percent of self-represented accused, and accused assisted by duty counsel, entered their plea on or before their second appearance.
- Fifty percent or more of accused represented by private counsel did not enter a plea until their fourth appearance or later.
Figure E-9. Distribution of Appearance Number at Which Plea was Entered By Type of Representation at Plea Appearance, Edmonton Appearance Number at which Plea was Entered Represented by Self Duty Counsel Private Counsel 25th Percentile 1 1 2.25 Median 2 2 4 75th Percentile 3 2 5 95th Percentile 5 5 9 Total Cases 87 66 288 Notes * If plea entered at more than one appearance, last appearance at which plea entered is shown.
Total number of appearances before disposition
Figure E-10 shows the total number of appearances in the case – according to representation type at last appearance. Again, these data indicate that self-represented cases, as well as cases involving duty counsel, do not make more court appearances overall. More specifically:
- Fifty percent or more of accused unrepresented at last appearance and those assisted by duty counsel made only one or two appearances, as compared to accused represented at last appearance by private counsel, 50 percent of whom made at least four appearances.
Figure E-10. Distribution of Number of Appearances in Case By Type of Representation at Final Appearance, Edmonton Number of Appearances Represented by Self Duty Counsel Private Counsel 25th Percentile 1 1 3 Median 2 2 4 75th Percentile 3 2 6 95th Percentile 5 4.7 10 Maximum 8 5 13 Total Cases 149 65 380 Taken together, the data presented in this section indicate, contrary to a widely held perception, that unrepresented accused, in fact, made fewer rather than more court appearances than did accused represented by private counsel.
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d. 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."[53] 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 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 E-11:
- Cases represented at last appearance by duty counsel took the least time to resolve – 50 percent were settled in two weeks or less, and 75 percent were settled in 12 weeks or less.
- Cases self-represented at last appearance took considerably longer, with 50 percent settled within 8.6 weeks, and 75 percent settled within 17.7 weeks.
- Cases represented by private counsel at last appearance took the longest time to be resolved, with 50 percent settled within 13.4 weeks and 75 percent settled within 20.6 weeks.
- Approximately 5 percent of all cases took ten months or more to be resolved.
Figure E-11. Distribution of Time (in weeks) Between First and Final Appearance by Type of Representation at Final Appearance, Edmonton Time (in weeks) between First and Final Appearance when Represented by Self Duty Counsel Private Counsel 25th Percentile 1.4 0.21 5.7 Median 8.6 2 13.43 75th Percentile 17.7 12.1 20.6 95th Percentile 48.6 43.9 40.7 Maximum 642 61 470 Total Cases 91 37 371
