Legal Aid Research Series Court Side Study of Adult Unrepresented Accused in the Provincial Criminal Courts Part 1: Overview Report

3. Findings - context

3. Findings - context

Both previous research and the interviews and data findings from this study suggest that there are seven key contextual factors that are important to a full understanding of questions related to access to legal representation in criminal cases.  Any problem assessment or planning of improvements must be undertaken within a broad framework that recognizes that the extent and impact of legal representation cannot be measured by simply counting whether or not an accused has a lawyer.  Instead, there are many, wide-ranging factors that will determine the impact of an accused having or not having representation.

This chapter presents our findings with respect to these important contextual factors and their relationship to the impacts of a lack of representation.  For the most part, these findings are drawn from the results of our interviews with a range of key informants in each study site.

3.1 Availability and Quality of Representation

Although the study was originally conceived as a study purely of whetheror not adult accused had some legal assistance in criminal court, it quickly became apparent that it would be necessary to look also at questions of the quality and nature of that representation – how well the accused was represented.  For example, one of the sites in the study had among the highest rates of representation, but key informants consistently characterized the situation as one of under-representation.  Both the availability and quality of representation are related to a host of factors, but perhaps key among these are resources, workload, structural limits on service, training, and the experience at the bar of the lawyers involved.

3.2 Client Population

The extent to which the presence or absence of a lawyer will matter is also linked to the characteristics of the client. Many criminal defendants are poor, have limited education, lead relatively disordered lives, and function at low reading levels.  At some sites, many were from racial or cultural minorities; some were immigrants facing language and cultural barriers.  Some sites also have significant numbers of mentally disordered accused.

With the exception of the criminally sophisticated, most accused have only the faintest understanding of what is happening around them in court.  These factors are relevant because they will affect individuals’ willingness to stand on their rights, their ability to avail themselves of legal assistance and work effectively with counsel, and (should it become necessary) their ability to read relevant documents and represent themselves in a criminal proceeding.  As one judge in a western city said, “So many of the people we deal with don’t have a sense of entitlement; the only chance of getting people to stand on the rights they have is to get them a lawyer.”

3.3 Court Management and Operations Context

The experience of un-represented accused – and of legal aid – cannot be understood without considering the context of court management and operations within which it occurs.  Conversely, the management and operations of the court are also influenced by the self-represented accused and legal aid.

For instance, a backlogged and delay-ridden court will cause extra appearances – and workloads – for all court parties, thus further stretching the resources of all court parties, including legal aid.  On the other hand, a legal aid system that enjoys the trust and respect of court parties and clients, and is able to assist in a flexible way with the needs of clients and courts, will immensely assist the court to function efficiently, expeditiously, and in a manner which preserves the rights of clients and the public and, in turn, reduce the workloads of not only legal aid staff, but of all other court parties.

Specific contextual court management factors that have a significant impact on (and which are significantly impacted by) the unrepresented accused include: court backlogs; the manner in which cases are scheduled and assigned to judges; the manner in which Crown attorneys and duty counsel are assigned to cases; court practices regarding standing a case down and/or the granting of remands; and the extent to which officers of the court advise the unrepresented accused of his or her legal rights and of the availability of – and advisability of obtaining – legal assistance.

These operational practices are varied and potentially very significant, and are related not only to practices of court officials. For example, in some sites, the degree to which the police provide disclosure in a timely and accessible manner to the Crown (for subsequent distribution to the defence) has a major effect on the impact of legal representation.  How the Crown makes disclosure available to the unrepresented accused clearly also has a significant impact.

3.4 Stages in the Criminal Process

Despite the traditional emphasis on the criminal trial in defence work, the earlier stages of the criminal process are of key importance to the outcome of other stages for the accused.  The manner in which representation is approached at earlier stages will affect not only the outcome, but also the functioning of the court at early and later stages.  Although the criminal trial is often seen as the centrepiece of the criminal process, in practice the trial is a relatively rare event, most matters being settled by way of either a guilty plea or withdrawal of the charges.  This fact alone would lead one to extend the inquiry into the state of legal aid beyond those issues related to representation at trial.  But, in addition, previous research suggests there are certain critical stages in the criminal process where decisions are made that can significantly affect the outcome of later stages, as well as the ultimate outcome of the case.  Previous research has found, for example, that:

  • The prosecutor’s decision to dismiss cases initially accepted for prosecution is related to the successful completion of diversion programs.  Other relevant factors are related to witness, evidence and due process problems.[9]
  • Prior record, offence, nighttime offence, and the type of counsel (private or state-appointed) affect the pre-trial release decision.[10]
  • Sentence severity is related to whether the defendant had been released or detained prior to trial.[11]
  • Subsequent decisions in the justice system may be affected by earlier decisions in ways that heavily influence the final outcome.  For an excellent discussion of these interaction effects, see Holmes et al. (1987).

This study therefore undertook to examine legal representation over the full spectrum of the criminal court process after charging (other research currently being funded by the Department of Justice is examining Brydges and pre-court stages), including the stages of pre-trial release, diversion, plea, plea negotiation, disposition and sentencing.

3.5 Service Delivery Models

There is a wide variation across the sites in the types of delivery models used in legal aid, including certificates for private bar service, staff lawyer systems, and a mix of both.  In addition, variants in the delivery of duty counsel service are widespread across the provinces and within each province.  Each model has its advocates.  What is key here is that the strengths and weaknesses of each model will have impacts of various kinds on the unrepresented accused and on the courts in which they appear.

3.6 The Availability of Assistance from Other Sources

Organizational and operational mechanisms may be available to mitigate the negative impacts of being unrepresented – for example, the presence of court workers, social service agencies and other forms of special assistance, and the degree to which assistance is provided to the unrepresented accused by judges, Crown attorneys, court administration staff, court security and commissionaires, etc.

3.7 Variance Across Sites and Within Provinces

It is perhaps self-evident to court experts, but worth stating, that enormous variations were found across the nine sites.  This applies not only to variation in the numbers and proportions of unrepresented and under-represented accused at the various sites, but also to the organization of services, the experience and workload of key players, the operations of the courts, the availability of supports for accused persons, and other key factors which affect the impacts from representation.  The research team was also told by many key informants that there were relevant variances within the province also – that the nine courts in the study were not necessarily typical of the province as a whole.

3.8 Summary: Importance of a Systems or Holistic Perspective

The factors listed above in 3.7 must be considered in any analysis that seeks to understand the frequency of and impacts upon unrepresented and under-represented accused, and the consequences of under representation or lack of representation.

Further, our criminal justice system is built on the premise that Crown and defense function as equals, with equal legal expertise.  It is not built to operate with major gaps in either access to representation or legal expertise, and does not function efficiently or well with such gaps or imbalances.  Thus, the question of unrepresented and under-represented accused is not just one of preventing injustices to the individual accused – it affects the entire court and everyone who functions in it, as well as other parts of the justice system.

It is, then, almost axiomatic to conclude that formulating solutions to problems must also be seen in a holistic way.  In understanding the problems and developing solutions, one must consider the roles of all groups involved in the court process, and the wide range of functions performed by those groups.  This conclusion, in turn, implies that developing and implementing solutions will often require the active participation of those same groups.

A final reason for taking a holistic approach is that it takes into account the costs and benefits to all parts of the court system and will permit a better setting of priorities regarding potential solutions to problems. For instance, many of those interviewed felt strongly that increasing resources for activities that occur earlier in the court process (including broader duty counsel and other types of representation at early court appearances) would result in significant downstream cost savings to the courts, and positive impacts on the accused.

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