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

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Chapter 9: Scarborough, Toronto, Ontario (continued)

9.3 Frequency of accused appearing without representation

This section presents the information obtained on the frequency of lack of representation in the Scarborough court.  However, it should be noted that most interviewees believed that while there were very few unrepresented accused, there was a serious problem of under-representation in the Scarborough court.  This latter perception is explored in a later section.

9.3.1 Self-representation over the life of the case

Given the general perception that not having representation has significant implications for the accused, it is important to understand how frequently self-represented accused appear at different stages of the court process.

It is apparent from data from the Disposed Cases file that it is not a simple matter to categorize cases with respect to presentation received. Since 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 self-represented afterwards – and be represented by privately retained counsel later.

Looking at the pattern of representation over all appearances, it is seen that representation information was not available for four percent of the cases.  Of the remainder:

• In one percent of the cases, the accused was self-represented at all appearances.
• In 30 percent of cases, there was a mix of self-representation at some appearances and representation (by duty counsel, private lawyer or clinic lawyers) at others.
• Therefore, the accused was unrepresented on at least one appearance in 31 percent of cases.
• In 16 percent of the cases, the accused was represented by duty counsel at all appearances.
• In 37 percent of the cases, the accused was represented by a combination of duty counsel and private bar or clinic lawyers.
• In 12 percent of cases, the accused was represented by law student clinics or private bar lawyers at all appearances.

The Direct Court Observation sample captured 472 appearances in first appearance, bail, plea and set date courts over 14 days.  At four of those appearances, the court observer could not discern the accused's representation status.  Among the remainder:

• 19 percent involved an accused who was unrepresented;
• 42 percent involved an accused who was represented by a private member of the bar;
• 36 percent involved an accused who was represented by duty counsel (including 10 percent in which duty counsel was standing up for a private bar member who could not be present); and
• 3 percent involved an accused who was assisted by an agent or a student.

9.3.2 Self-representation by category of offence

Key informants suggested that the criminal charges most likely to be faced by unrepresented accused were thefts, stolen goods, mischiefs, assault (including family violence where there was no record or only a minor one) – "cases where the limit for sentence would be six months."  In addition, legal aid was rarely granted in cases of shoplifting, "low-level family violence," and drug possession – but many such cases were diverted.  Representation was also less likely in "domestics," where the defendant was confident the complainant would not testify.

Finally, legal assistance was less likely to be given in impaired driving cases since it was unlikely that the accused would get a jail sentence. As noted elsewhere, however, in many cases the impact of a conviction could be very serious, especially if the accused could not afford to lose his/her driving licence (for work, or fulfilling parental obligations such as driving children to school).

The Disposed Cases sample provided empirical evidence on the actual proportions of accused at each appearance who were unrepresented.  Figure SC-3 displays this information according to the offence category^[78] of the most serious charge in the case.

Among the offences that are sufficiently represented to permit comparisons, there was little variance from the overall self-representation rate for all offence types – with the exceptions of impaired driving, which had a high rate of self-representation at plea and final appearance (17 percent and 30 percent); weapons offences, which had a high rate of self-representation at disposition (30 percent), and common assault, which had a surprisingly low rate of self-representation at plea (4 percent).

9.3.3 Self-representation by stage in process

As noted in later sections, those interviewed felt that it was important to have legal representation not only at trial, but at all stages – and especially the earliest stages – of the court process.

• Answers to questions regarding the frequency of unrepresented accused were very telling, inasmuch as most interviewees inadvertently showed the same lack of regard for duty counsel as they complained the system did – i.e., failing to count duty counsel assistance as "representation."  As a result, "guesstimates" of the proportions of unrepresented accused often moved into a discussion of the duty counsel system. 

Figure SC-3. Disposed Cases: Proportion of Accused who were Unrepresented At Various Appearances, by Most Serious Charge Category, Scarborough *

Most Serious Charge Category	Proportion of Unrepresented Accused at				Total Number of Cases(all accused)
	First (%)	Bail %)	Plea (%)	Final (%)
Homicide	n/a	n/a	n/a	n/a	0
Sexual Assault	***	***	***	***	8
Assaults excl. Common	4	4	18	16	128
Robbery	***	***	***	***	4
Break and Enter	***	***	***	***	10
Impaired Driving	3	0	27	25	33
Common Assault	4	4	4	15	114
Drugs excl. Simple Possession **	n/a	n/a	n/a	n/a	0
Weapons Offences	0	0	17	30	10
Thefts and Frauds	8	3	13	15	99
Simple Possession of Drugs	***	***	***	***	5
Offences against Administration of Justice	0	0	11	13	36
Public Order	10	0	0	14	21
Miscellaneous Criminal Code	0	0	17	13	15
Other Federal Statutes	***	***	***	***	1
Provincial/Municipal Statutes	***	***	***	***	9
Unknown offence	***	***	***	***	1
Total number of all accused at this appearance	472	195	260	470	494
Proportion of unrepresented accused at this appearance	5	3	13	16

Notes

• *  Excludes cases for which representation was unspecified in the file.
  
• **  The Scarborough court does not handle drug cases other than simple possession.
  
• ***  The cell contains too few cases to report a percentage.

That being said, estimates of unrepresented accused (not including those represented by duty counsel) were:

• At first appearance: 5 percent.
• At bail: zero percent to "less than 10 percent."
• At plea: estimates of unrepresented accused varied from 5 percent to10 percent.
• At trial: estimates of unrepresented accused varied from 5-10 percent to 50-60 percent.

With regard to Aboriginal accused, one service provider suggested that "globally," 25-to-30 percent of Aboriginal accused were unrepresented.

Native Courtworkers reported feeling pressure to assist Aboriginal unrepresented accused with bail hearings, disclosures, pre-trials and other processes requiring legal advice – but their policy was not to provide it.

Figure SC-3 also shows – by offence type – the percentages of accused who were without representation at key stages in the court process, namely, first appearance, bail, plea, elections and final (disposition) appearance. 

The Figure suggests that:

• It was at first appearance and bail that accused were least likely to be unrepresented, confirming the critical role of duty counsel at the earliest stages.
• The highest incidence of unrepresented accused occurred at final appearance, where eligibility limits and limitations on the role of duty counsel affected the availability of representation.
• Those accused of less serious offences, which were less likely to incur a custodial sentence, were less likely to be represented.

9.3.4 Socio-demographic characteristics of unrepresented accused

Most interviewees agreed that the only demographic difference between unrepresented accused and other accused lay in income, with unrepresented accused most likely to be "people without money" (and without any prior record, which would affect the likelihood of term of imprisonment).

A significant proportion of the accused in the Scarborough court did not understand English well enough to function effectively.  Legal Aid Ontario officials suggested that the average reading level of their clientele was Grade 3 or 4. 

Mentally disordered accused were more likely to get representation because of their income, but often faced lengthy remands and delays in decisions – while their condition deteriorated  (often because medication and treatment was interrupted) – because of transfers between courts, and general lack of expertise in dealing with their unique challenges.

In general, those with mental challenges – and their families – were especially overwhelmed by the process. "Duty counsel do a good job, but don't have the time." The parts of the Criminal Code are also quite complicated and the families often become disheartened when the process does not move along as quickly as they anticipate.

9.4 Other types of representation

9.4.1 Prevalence of other types of representation

Figure SC-4 shows the representation provided by counsel of various types at each stage of the criminal process.  It suggests that:

• Duty counsel were the most common type of representation at first appearance and bail, assisting three quarters of all accused at those stages.
• Duty counsel was able to take about a quarter of all cases to plea (24 percent) and final resolution (22 percent).
• Private counsel appeared at only about a fifth of first appearances and bail hearings.
• Private counsel was the most common type of representation at plea (62 percent) and final appearance (61 percent).
• Significant proportions of accused were, nonetheless, unrepresented at plea (14 percent) and final appearance (16 percent).

Figure SC-4. Disposed Cases: by Type of Representation by Appearance Type, Scarborough

Representation at First Three Appearances

Appearance	Represented by				Total: All Types of Representation (including self)
	Self (%)	Duty Counsel ** (%)	Private Counsel (%)	Other***(%)
First appearance	5	71	21	4	472 (101%)
Second appearance	9	57	33	1	452 100%)
Third appearance	9	49	41	1	408 100%)

Representation at Key Stages

Appearance	Represented by				Total: All Types of Representation (including self)
	Self (%)	Duty Counsel ** (%)	Private Counsel (%)	Other***(%)
Bail	3	77	20	1	195 (101%)
Plea	14	24	62	1	260 (101%)
Final appearance	16	22	61	1	470 (100%)

Notes

• *  Excludes cases for which representation information is not available.
  
• ** Includes instances of duty counsel acting in place of a private lawyer.
  
• *** Includes agents, students and clinic assistance.
  
• ****  Percentages may not total to 100 due to rounding.

Figure SC-5 (in the following subsection) on the following  pageshows the most serious offence charged in cases with different types of representation at the final appearance.  It suggests that:

• Impaired driving accused had a higher frequency of self-representation at final appearance (25 percent);
• Duty counsel took a higher proportion of thefts and frauds (35 percent), public order offences (38 percent), and miscellaneous Criminal Code offences (40 percent) to final appearance. 
• Private counsel were most likely to represent accused who were charged with assaults, other than common assault, at final appearance (74 percent).

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[78] See Appendix A of Chapter 2 for a listing of the offences contained in each of the "offence categories."

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