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)

9.6 Further impacts of lack of representation

9.6.1 Impacts on officers of the court and others

• a. Legal Aid staff duty counsel

  It was noted above that a number of key informants suggested that the representation problem at the Scarborough court was less one of lack of representation, and more one of under-representation.

  For instance, interviewees expressed serious concern about what were characterized as the built-in limitations on the effectiveness of duty counsel.  "The real issue is whether duty counsel is enough representation."  The duty counsel function was of critical importance to the functioning of the court, but had, effectively, never really been "accepted" by all, and was hampered by numerous factors, including:

  • Salary levels that virtually ensured that the only lawyers hired into duty counsel positions would be inexperienced, and, in particular, would have no trial experience.
  • Salary and experience levels that placed duty counsel in a poor position to conduct plea bargains with Crown attorneys, who "pushed duty counsel around."
  • Restrictions on duty counsel handling trials, such that duty counsel could not say to Crowns, "I know from my trial experience that you won't be able to prove that at trial – give me a better offer or we're going to trial."
  • Duty counsel did not have adequate support resources (e.g., to talk to witnesses, or gather new evidence) – while the Crown had the police to continue to collect evidence against the accused.
  • Hiring structures and compensation that virtually ensured that "Duty counsel will leave the position just when they are getting good at it."
  • "Huge dockets and resource shortages" left too little time for each case.  There was, e.g., too little time to review the disclosure in detail (some afternoon lists contained 50 to 100 cases).  "Duty counsel could spend 30 minutes to one hour per person to give good, thorough legal advice." 
  • Plea negotiations were done "on the fly" for "people you met 10 minutes ago."

• b. Private bar acting under Legal Aid certificates

  With respect to the question of under-representation, several interviewees also mentioned that the limitations in the tariff system led to serious shortcomings in the quality and quantity of legal assistance given by a portion of the private bar, including:

  • Generally, disincentives for the private bar to "go the whole nine yards" on a case.
  • Appearances at which the accused was "represented" by a member of the private bar who did not show up.
  • Private bar members who sent an agent in their place who could not handle, e.g., pre-trials, and had to have the case remanded again.
  • In particular, bail hearings that were virtually always conducted by duty counsel, because private bar members invested their tariff dollars at other stages.
  • Private bar members who rarely practised in Scarborough did not have the knowledge of the idiosyncrasies of individual judges that would assist their clients at sentencing. They did not have the interest or time to research judges' patterns (e.g., where a particular judge would not grant an intermittent jail term without written proof that the accused had a job).
  • "Lousy sentence submissions."

  Clearly such comments do not apply to all instances in which the accused was represented by a member of the private bar under a Legal Aid certificate.  However, the fact that these issues were raised at all by a number of those interviewed is certainly a cause for further investigation.

• c. Crown attorneys

  Crowns generally would not talk to unrepresented accused or negotiate a plea with them, but would only discuss plea resolutions in open court.  It was not uncommon for duty counsel to be asked to assist on the spot in such situations, sometimes being pulled out of other courtrooms to help out.  Pre-trials with unrepresented accused were "impossible," not allowing the court to narrow the issues and proceedings for trial.  Crowns' ability to manage their time effectively could be hampered by trials that were remanded by concerned judges when the accused showed up on the day of trial without representation.

  Crowns also were troubled by issues related to under-representation, which made life "more hectic." Among the difficulties noted:

  • Bail hearings were "a disgrace," according to a number of interviewees, with private bar members on certificate rarely in evidence; cases being called in an order that had no regard for whether the duty counsel had interviewed the accused or was ready for the bail hearing; the disclosure available to the Crown sometimes not being made available to duty counsel; and with permissions being refused by the presiding justice of the peace to hold matters down until duty counsel could be ready later in the day.
  • Large numbers of "no-shows" by private counsel, which slowed down the process.
  • The huge dockets and rushed pace suffered by duty counsel, which put them in a poor position generally, and especially (according to some) when compared to Crowns and private counsel.
  • Some Crowns mentioned that duty counsel would sometimes assist with guilty pleas before seeing full disclosure, although reviewing disclosure with the accused at the same time as plea may be the more common experience.

• d. Judges

  Those interviewed indicated that most judges "bend over backwards" to try to preserve the rights of unrepresented accused.  "It's very hard on judges to wear so many hats, but they don't want to sit there and watch someone plead in cases where the Crown is not in a good evidentiary position."  However, some judges were more thorough in this role than others, who might "leave the accused to flounder."

  Most interviewees agreed that trials involving unrepresented accused took longer than those of represented persons – perhaps twice as long, or "ten times as long if an interpreter is needed."  Those who did not agree said that unrepresented accused had no idea what questions to ask and did not think to call witnesses or present important arguments in their defence.  In addition, many unrepresented accused "get shut down a lot during the trial and by the time of sentencing don't want to talk much."  Most seemed to agree, however, that trials with unrepresented accused were a difficult process for all.  On the other hand, although definitely in a minority, some felt that talking directly to the accused resulted in some stages of the court process being more efficient and effective.

• e. Court administrative staff

  Unrepresented accused asked court administrative staff to explain court procedures and even what strategy they should use to fight their case.  However, the court staff could not give legal advice and referred the accused to duty counsel.

  Court staff often found that they had to explain to unrepresented accused what had happened to them in court.  Especially difficult explanations were needed when accused understood, for the first time, what bail or sentencing conditions meant – or found out for the first time that they had to pay a Victim Fine surcharge that represented a considerable amount of money for poor accused (i.e., $50 per count on summary conviction, and $100 per count for conviction by way of indictment).

• f. Court security

  Although the problems were not frequent, there had been some security problems related to mentally challenged accused – with the threats being felt most by other accused persons (especially other prisoners).  Such problems were, however, not restricted to such persons who were unrepresented.

9.6.2 Overall impacts on court operations

a. Court workloads: Length and nature of individual appearances

Length of appearances

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 Scarborough (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 Direct Court Observation data did indicate that concern was present that the unrepresented accused were aware of the opportunities and benefits of having a lawyer – and the expression of that concern did extend the time taken for individual court appearances.

In nearly one third (32 percent) of all observed appearances, and 64 percent of the appearances involving self-represented accused, a comment concerning representation was made by either the judge, the accused, the Crown, or duty counsel.  Typically, the judge asked the accused if s/he was represented, and the accused would reply that s/he would be self-represented; was applying to Legal Aid; had been refused; had spoke to a lawyer but not retained one; had a lawyer who was not present in court; and so on.  A few appearances seemed to reflect impatience – the Crown asking for proof that the accused had applied for legal aid, or the judge stating that trial would begin on the next appearance, whether or not the accused was represented.

Interviewees agreed that some processes would take longer and others would take less time when the accused was unrepresented.  Unrepresented accused could "hang up on some irrelevant point," while a lawyer would have moved directly to what was relevant – but unrepresented accuseds may also have failed to raise issues out of ignorance, language barriers, anxiety or intimidation.

Those who believed that unrepresented accused trials took longer suggested that unrepresented accused would, at trial, delay the proceedings by:

• Requiring lengthy explanations.
• Not stipulating evidence or waiving processes where a lawyer would.
• Considering all things to be relevant.
• Asking "stupid, irrelevant" questions.
• Making statements instead of asking questions.

It is also important to note that Scarborough has implemented a practice of Judicial Pre-trials – meetings among the parties in the judge's library or chambers to ensure the most effective use of the parties' and the court's time at trial.  (Judicial Pre-trials are not held in this manner for cases with unrepresented accused, although a greatly restricted form of pre-trial may be held in open court.)

Most interviewees appeared to agree that unrepresented accused slowed down the court process and contributed to backlogs, in the sense that unrepresented persons would appear more times on the same case.  One interviewee suggested that three quarters of all accused would have a lawyer within a month, and the remaining quarter were "jerking the system around."

With respect to appearances prior to trial

To create our Direct Court Observation file, the court observer sat in bail, first appearance and set date courts and captured the time taken by each case/appearance.  The results spoke directly to the issue of whether appearances of self-represented accused (prior to trial) were actually longer or shorter than those with other types of representation. 

Figure SC-11. Case/Appearances: Distribution of Time (seconds) for different types of Case/Appearances by Type of Representation , Scarborough

Appearance Number at which Plea was Entered	25th/ median/ 75th percentile times for case/appearances represented by
	Self	Duty Counsel	Duty Counsel assisting Private Lawyer	Private Counsel	All Types of Represen-tation
All appearances	25th = 60 50th = 90 75th = 120 (n=77)	60 120 240 (n=123)	60 120 300 (n=52)	60 120 240 (n=208)	60 120 180 (n=473)

Source:  Direct Court Observation file.
*** Less than 10 case/appearances

As shown in Figure SC-11, in the first appearance/docket/set date courts – overall, using the typical or median case as the measure – appearances seemed to be shortest when the accused was self-represented (median length of appearance, 90 seconds) – and longer for cases represented by duty counsel, by duty counsel assisting a private lawyer, or by private lawyer (all having equal medians, 120 seconds).    Similar results are evident if the 75th percentile is used as the measure for comparison – although that measure showed appearances in which the accused was represented by duty counsel assisting a private lawyer as taking longer than those represented by duty counsel or a private lawyer alone.^[84]

From the perspective of achieving cost savings for courts, it might be thought a positive result to have unrepresented cases over more quickly than the alternative of being represented by duty counsel.  However, from an access to justice perspective, there may be reason to be concerned that, when an accused is not represented, less time is spent dealing with issues in the case.  One key informant suggested that a case for an unrepresented  person took less time because it was not informed, prepared or spoken to.

Another factor that would add to the time taken by a case on a court docket would be the process of "holding down" a case to later in the day to complete consideration of any matters that day.  In fact, our court observer saw 12 percent of the cases being held down – with the percentage being highest for cases represented by duty counsel (16 percent). Of the 61 cases that were held down, 11 (18 percent) were stood down because a lawyer was not present (i.e., in cases where the accused was represented by duty counsel assisting a private lawyer, or by a private lawyer alone).  However, by far the most likely reason given for holding a case down was to transfer the case to another court that day (69 percent overall, and 91 percent of stand downs for self-represented cases).

It should, however, be noted that, according to interviewees – and the researchers' direct court observations – the justices of the peace in the bail courts were often quite reluctant to grant a request to hold down or stand down a case – for the duty counsel to read the particulars, confer with the accused or the Crown, or to speak with or contact a surety, for example.  Given that such refusals would have resulted in wasted court appearances and the accused having to be transported back to jail (and back to court for the next appearance), having representation to ensure that matters such as sureties are in order would have to be considered important to the accused.

Events occurring at individual court appearances

Interviewees noted that appearances without counsel would often be wasteful of the court's time, and as noted below, unrepresented accused would put in more appearances than represented ones.

The Court Observation data also 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 SC-12 shows the breakdown of courtroom events (or non-events) according to representation status at last appearance. The columns in the left half of the table show data for "interim" (i.e., non-final) appearances.  The columns in the right half of the table show data for final appearances.^[85]

With respect to interim appearances, the Figure suggests that, overall, appearances in a case were least likely not to involve consideration of bail, elections, or the entering of a plea (see column 2 – "no decision") if the accused was represented by a private lawyer (93 percent), and most likely not to involve such a decision if the accused was unrepresented (98 percent).  For all types of representation, however, the proportion of appearances where no decision was made as to bail, plea or elections was very high (93 percent overall).  This proportion was lower (but still high at 88 percent) for duty counsel, especially as regards their role in bail hearings.

Figure SC-12.  Court Observation Data:  Percentage Distribution of Cases/Appearances: Type of Decision Made by Accused's Representation Status

With respect to final appearances (i.e., the right-most columns in Figure R-12), the numbers of appearances observed were small – only 33 out of  480 for which all data for this analysis were present.  No conclusions could be drawn from these scant data.

b. Workloads:  Number of appearances per case

Most interviewees appeared to agree that unrepresented accused slowed down the court process and contributed to backlogs, in the sense that unrepresented persons would appear more times on the same case.  One interviewee suggested that three quarters of all accused would have a lawyer within a month, and the remaining quarter were "jerking the system around."  Interviewees suggested that appearances without counsel would often be wasteful of the court's time, and as noted above, unrepresented accused put in more appearances than represented ones.

Reasons for remands at early appearances

The Direct Court Observation file provided information to at least initiate an exploration of the reasons for remands – and the results showed that a sizeable percentage (19 percent) of the reasons for granting remands were related to obtaining counsel.^[86]  More specific reasons given were: to get a Legal Aid certificate (2 percent), to get a lawyer (8 percent), to get proof that the accused had a lawyer (3 percent) and to find a date that a missing lawyer could make himself available (6 percent).

If these results were to apply when data from a larger sample of case/appearances were obtained, then they would certainly indicate that remands to obtain legal assistance were a significant source of delays.

Appearances before a plea is entered

A second direct indicator of the workloads caused by – and resources required to deal with – cases is the appearance numbers at which key activities take place. 

Figure SC-13 begins by showing 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 did in fact generate more appearances before entering a plea than did cases represented by duty counsel, but, except for the extremely drawn-out cases, did not generate more appearances than cases represented by private counsel.  In addition:

• Few unrepresented accused pled guilty early in the process.  The one quarter of unrepresented accused who pled guilty the soonest still took up to four appearances to plead.
• Half the accused represented by duty counsel had entered a plea by the second appearance.
• A quarter of the self-represented accused made 13 or more appearances before pleading, and a quarter of those in private counsel cases made 10 or more appearances before pleading.

Figure SC-13.  Cases in which a Plea was Entered: Distribution of Appearance Number at Which Plea was Entered by Type of Representation at Plea Appearance, Scarborough

Appearance Number at which Plea was Entered	Represented by			All Types of Representation
	Self	Duty Counsel	Private Counsel
25th Percentile	4	1	4	3
Median	7	2	7	6
75th Percentile	13	4	10	9
95th Percentile	n/a	16	17	16
Total Cases	35	61	160	260

Notes
* If plea was entered at more than one appearance, last appearance at which plea was entered is shown.

Total number of appearances before disposition

Figure SC-14 shows the total number of appearances in the case – according to representation type at last appearance.  The data suggest that self-represented cases did require more court appearances than duty counsel cases, but, except for the extremely drawn-out cases, generated slightly fewer appearances than cases represented by private counsel.  More specifically:

• The speediest half of accused self-represented at the last appearance made one less appearance than privately represented cases (six or fewer vs. seven or fewer) – however, the speediest half of cases represented by duty counsel were finished much earlier, within three appearances. 
• A quarter of the self-represented accused made 11 or more appearances and a quarter of the privately represented accused made 10 or more appearances.
• A small minority of self- and privately represented cases resulted in an extraordinary number of appearances. Five percent of the accused unrepresented at last appearance appeared 28 or more times in the case, and five percent of the accused represented by private counsel at last appearance made 16 or more appearances.

Figure SC-14.  Disposed Cases: Distribution of Number of Appearances in Case by Type of Representation at Last Appearance, Scarborough

Number of Appearances	Represented by			All Types of Representation
	Self	Duty Counsel	Private Counsel
25th Percentile	3	2	4	3
Median	6	3	7	6
75th Percentile	11	5	10	9
95th Percentile	28	10	16	14
Maximum	30	17	25	30
Total Cases	76	105	285	471

Notes
Source: Disposed cases file

c. Elapsed time for cases to be disposed

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."^[87]  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 SC-15:

• Duty counsel cases took the least time to resolve, from every perspective.
• The speediest quarter of self-represented cases took three weeks longer than privately represented cases to resolve, and 12 weeks longer than cases represented by duty counsel.
• At the halfway mark, there is no difference in time taken to resolve between self-represented and privately represented cases.
• The lengthiest quarter of the cases represented by private counsel took longer to resolve than the equivalent group of unrepresented cases.
• A quarter of all cases took more than seven months to be resolved.

Figure SC-15.  Disposed Cases: Distribution of Time (in weeks) Between First and Final Appearance by Type of Representation at Final Appearance, Scarborough

	Time (in weeks) between First and Last Appearance when Represented by			All Types of Representation
	Self	Duty Counsel	Private Counsel
25th Percentile	13	1	10	6
Median	24	5	24	20
75th Percentile	39	14	42	37
95th Percentile	78	52	75	68
Maximum	84	66	224	224
Total Cases	76	105	286	471

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• [84] An attempt was also made to differentiate between case/appearances that resulted in a remand or a final disposition.  Unfortunately, too few case/appearances were present in the database to consider the latter.  Nonetheless, as shown in Figure SC-11, case/appearances that resulted in a remand and in which the accused was self-represented were again over more quickly than cases with any of the other types of representation – with, again, cases represented by duty counsel, assisting a private lawyer, taking the longest.

• [85] The figure omits four cases in which the accused's representation status was unclear to the court observer.

• [86] The single most frequent (29 percent) non-lawyer reason given for a remand was to set a trial date (29 percent).  It is also noteworthy that 7 percent of the remands were because the accused did not show for his or her appearance in court.

• [87] The latter phrase was first suggested to one of the authors by a widely respected colleague, Carl Baar.
  
  

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