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Court Site Study of Adult Unrepresented Accused in the Provincial Criminal Courts (Part 2: Site Reports)
Chapter 8: Kelowna, British Columbia (continued)
8.4 Evidence on the impacts of a lack of representation
8.4.1 Perceived impacts of a lack of representation
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a. Impacts on the accused
At trials: Opinion was divided as to the impact of a lack of representation at trials on unrepresented accused. It should be noted that most interviewees thought it rare that accused faced serious charges at trial without counsel.
One suggested negative impact at trial was that sentences might be more harsh for unrepresented accused, especially compared to the results of plea negotiations conducted by counsel. One other comment on the impacts on accused persons of being unrepresented at trial was that there might be little difference in the probability of conviction or severity of sentence if the unrepresented accused could express themselves clearly.
At stages before trial: The main impact of a lack of representation before trial was seen to be on accused persons held in custody. Representation at the bail stage was seen as important both in terms of the accused's likelihood of pre-trial release and in terms of their access to diversion programs.
A lack of representation was seen as having little real impact on accused persons at first appearance. These individuals were encouraged to apply for legal aid and/or retain private counsel, depending on their circumstances. Several interviewees noted that this advice often went unheeded, with the result that many accused made their next appearance seeming to have done nothing in the meantime to obtain representation.
Negative impacts of a lack of representation at stages before trial which were suggested were:
- Unrepresented accused might plead guilty to more charges, but the overall sentence might not be different.
- Cases that should be diverted went to court.
- Cases that should have been discharged resulted in convictions.
- Unrepresented accused might not understand the impacts of conviction, with the result that some would plead guilty when they clearly ought to have sought legal advice.
- The consequences of a conviction might be more severe, as unrepresented accused couldn't effectively negotiate with Crown on numbers of charges (although Crowns in Kelowna went out of their way to be fair to unrepresented accused).
Our key informants were also asked to identify the types of errors made most often by unrepresented accused. Included on this list were the following:
- Most unrepresented accused had no sense of the trial process.
- Most unrepresented accused did not understand what the Crown has to prove, or what defences were available to them.
- Unrepresented accused did not know what their questions needed to accomplish.
- Unrepresented accused would sometimes disclose incriminating information that they were not obliged to.
- Most unrepresented accused were incapable of testing Crown witnesses.
- Unrepresented accused did not know what they needed evidentially to establish their defence.
- Some unrepresented accused would plead guilty when they had a defence they had not used.
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b. Impacts on court officers and others
Judges in Kelowna typically made considerable efforts to ensure that unrepresented accused were treated fairly. They would also assist unrepresented accused to better understand the court process. These efforts may, at times, have made it appear that their impartiality was being compromised.
Crowns also tried to ensure fair treatment for unrepresented accused. This may have involved adopting a less aggressive stance if an accused was unrepresented, in terms of pursuing individual charges and/or in terms of sentences sought.
The main perceived impact on the court of unrepresented accused concerned the time consumed by unrepresented accused. Here, opinions varied somewhat. Most were of the view that appearances involving unrepresented accused took longer than otherwise similar appearances with counsel present. This was due in part to the need to explain the process to unrepresented accused and to guide them through the choices they had to make. Some suggested that the time differential might be as high as 300 percent.
Some estimated that trials with unrepresented accused might be faster (in part because they did not cross-examine Crown witnesses), while previous appearances were slower. Also slow were cases in which unrepresented accused pled guilty "with an explanation" that negated their guilty plea, resulting in time wasted and a confused accused. Sentencing was also described by some as a process that could be particularly slow with unrepresented accused, as they were often unprepared to offer or substantiate arguments that might reduce the severity of their sentences.
One of the effects of unrepresented accused's more frequent delays and adjournments ("to get counsel") was to create attendance problems for Crown witnesses.
8.4.2 Empirical findings regarding a lack of representation
The preceding section described the perceptions of our key informants in Kelowna regarding the impacts of accused persons 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 this information 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 raised the issue of whether or not unrepresented accused were 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 K-4 displays the plea entered by the type of representation available to the accused (for cases in which a plea was entered).
- Of all pleas, 94 percent were guilty pleas.
- Guilty pleas were entered in 96 percent of cases represented by duty counsel. This was higher than the rate of guilty pleas by unrepresented accused (88 percent), which was, in turn, higher than the rate for accused represented by private counsel (82 percent).
Figure K-4. Distribution of Type of Plea Entered by Type of Representation at Plea Appearance, Kelowna * 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 88% 96% 82% 614 94% Not guilty 6% 0% 8% 38 6% Total Cases 185 173 294 652 Note Excludes cases for which representation at plea was unspecified in the file
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b. Conviction rate by type of representation
Conviction rates were also examined in terms of representation at final appearances. In this analysis, pleas of guilty were combined with findings of guilt.
Figure K-5 shows conviction rates by representation at final appearance. These data indicate that:
- Overall, 72 percent of all disposed cases resulted in a conviction on one or more charges.
- The conviction rates were highest 78 percent for accused assisted by duty counsel. The conviction rates for accused who were self-represented, and those represented by private counsel were essentially the same (71 percent and 70 percent, respectively).
Figure K-5. Distribution of Disposition By Type of Representation at Final Appearance, Kelowna Disposition Proportion of Dispositions for Accused Represented by Number of Cases Proportion of Cases Self Duty Counsel Private Counsel Convicted * 71% 78% 70% 707 72% Not Convicted** 29% 23% 30% 274 28% Total Cases 272 236 473 981 Notes
- * Includes guilty verdict and peace bond 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. 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 (but no more likely than are accused assisted by either duty counsel or private counsel).
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c. Custodial sentence and type of representation
Again, the proportion of cases that resulted in custodial sentences was examined in terms of representation at the final appearance.
Figure K-6 shows the distribution of custodial sentences for cases disposed at final appearance by type of representation. The Figure suggests that:
- Overall, 31 percent of all disposed cases received a custodial sentence.
- Unrepresented accused fared best of all, and by a wide margin, with an 11 percent custodial rate. Cases finalized with the assistance of duty counsel had the highest imprisonment rate (42 percent), followed closely by cases with private counsel (37 percent).
Figure K-6. Distribution of Custodial Sentence by Type of Representation at Final Appearance, Kelowna Sentence Represented by Number of Cases Proportion of Cases Self Duty Counsel Private Counsel Custodial Sentence 11% 42% 37% 305 31% No Custodial Sentence 89% 58% 63% 676 69% Total Cases 272 236 473 981 Again we caution against using these data to imply a causal connection between type of representation and likelihood of receiving 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 are received by over one in ten self-represented accused.
8.4.3 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 elsewhere, in Kelowna (as in other courts) these appearances are typically in the order of a few 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 confirmed that efforts were made in the courtroom to make unrepresented accused aware of the opportunities and benefits of having a lawyer. In 27 percent of appearances by unrepresented accused, and 8 percent of appearances assisted by duty counsel, comments were made, mostly by judges (or justices of the peace in first appearance court), concerning representation. In these appearances, the judges or JPs most often asked the accused about his or her representation status or instructed the accused to get a lawyer or apply for legal aid.
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b. Nature and length of individual court appearances
Some of our key informants suggested that unrepresented accused often "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 resulted in a plea of guilty on the day of trial were very costly also.
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 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. Readers are reminded that these observations were not made primarily in first appearance courts. Figure K-7 shows the breakdown of courtroom events (or non-events) at interim (not final) appearances, according to representation status at last appearance.[71]
Figure K-7. Court Observation Data: Percentage Distribution of Cases: Types of Decision Made by Representation Status At Interim (not Final) Appearances, Kelowna * Representation Status Type of Decisions at Interim Appearance (Remanded or Stood Down) **No decision % Bail, plea and/or election considered % Total number of Appearances Self 95 5 60 (100%) Duty counsel 94 6 36 (100%) Private lawyer 86 14 88 (100%) All 92 14 (100%) 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 was that 92 percent of all interim appearances did not involve consideration of bail, elections, or the entering of a plea. If the accused was either unrepresented or represented by duty counsel, the proportion of "unproductive appearances" was higher (95 percent and 94 percent, respectively) than was the case for appearances in which the accused was represented by private counsel (86 percent of which were "unproductive").
The Court Observation also yielded data on the length or duration of individual court appearances (again, not primarily from first appearance court). Figure K-8 summarizes these data by representation type. The general conclusion supported by these data is that, while the majority of all appearances in these courts were short, appearances by self-represented accused were similar in duration to appearances with private counsel, and somewhat shorter in duration than appearances for accused assisted by duty counsel.
Figure K-8. Distribution of Appearance Durations (in minutes) by Type of Representation at Final Appearance, Kelowna Appearance Duration (in minutes) when Represented by Self Duty Counsel Private Counsel 25th Percentile 1 1.5 1 Median 2 3 2 75th Percentile 3 5 3 95th Percentile 10.0 11.5 21.1 Total Appearances 51 31 72 - * 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 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. Multiple postponements before a trial date was set for accused who were unrepresented were common; some judges repeatedly granting adjournments in hopes the accused would obtain counsel. 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.
A direct indicator of the workloads caused by – and resources required to deal with – individual 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 the number of appearances made by accused who were or were not represented.
Appearances before a plea is entered
Figure K-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 entering a plea, 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.
- At least 50 percent of accused represented by private counsel did not enter a plea until their fourth appearance or later.
Figure K-9. Distribution of Appearance Number at Which Plea was Entered By Type of Representation at Plea Appearance, Kelowna Appearance Number at which Plea was Entered Represented by Self Duty Counsel Private Counsel 25th Percentile 1 1 2 Median 2 2 4 75th Percentile 3 3 7 95th Percentile 7 8 16 Total Cases 195 179 325 Notes If plea entered at more than one appearance, last appearance at which plea entered is shown.
Total number of appearances before dispositionFigure K-10 shows the total number of appearances in the case – according to representation type at last appearance. These data indicate that self-represented accused did not typically make more court appearances overall than did accused assisted by duty counsel or private counsel. More specifically:
- Fifty percent of accused unrepresented at last appearance, and those assisted by duty counsel, made only one or two appearances.
- Fifty percent of accused with private counsel at their last appearance made up to four appearances.
Figure K-10. Distribution of Number of Appearances in Case By Type of Representation at Final Appearance, Kelowna Number of Appearances Represented by Self Duty Counsel Private Counsel 25th Percentile 1 1 2 Median 2 2 4 75th Percentile 4 3 7 95th Percentile 9 6 16 Maximum 32 20 40 Total Cases 273 236 467 -
d. Elapsed time for cases to resolve
The Disposed Cases sample also yielded information about the time that elapsed between the first and last appearances. 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."[72] 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 K-11:
- Cases represented at last appearance by duty counsel typically took the least time to resolve – 50 percent were settled in less than one week and 75 percent were settled in three weeks or less.
- Cases self-represented at last appearance typically took somewhat longer, with 50 percent settled within one week, and 75 percent settled within 7 weeks.
- Cases represented by private counsel at last appearance typically took the longest time to be resolved, with 50 percent settled within four weeks and 75 percent settled within 11 weeks.
Figure K-11. Distribution of Time (in weeks) Between First and Final Appearance By Type of Representation at Final Appearance, Kelowna Time (in weeks) between First and Final Appearance when Represented by Self Duty Counsel Private Counsel 25th Percentile 0 0 1 Median 1 0 4 75th Percentile 7 3 11 95th Percentile 51 16 71 Maximum 167 166 175 Total Cases 273 236 467 Note: Percentile values of "0" in this table indicate durations of less than one week
