Legal Aid Research Series Court Side Study of Adult Unrepresented Accused in the Provincial Criminal Courts Part 1: Overview Report
This chapter focuses on the impacts of a lack of representation identified by this study. For the purposes of this report, these impacts are grouped under three headings: key general impacts; impacts on the accused (including both legal and socio-economic impacts); and impacts on the courts and court officers.
Four key general impacts of accused being unrepresented and under-represented suggested by some interviewees were that:
- Charter arguments are not raised because matters are pled out or not properly tried.
- The “audit function” that trials serve over police conduct is weakened.
- The entire system is premised on the assumption and principle that both sides (Crown and defence) are equally matched. When they are not, everything (and everyone) suffers.
- The general public is left with the impression that there is one system for the rich and another for the poor.
Our interviews revealed that most key informants felt that unrepresented and under-represented accused typically suffer significant negative impacts. Those who were of the view that they did not (with a few mentioning that, occasionally, there may in the end be a positive impact) were definitely in the minority.
Further, most interviewees agreed representation was important at all stages of the criminal court process, and that it was important to be clear about the types of impacts to be considered at each of the different stages.
(a) Pre-trial: Process
Our site visits revealed that the majority of those interviewed felt that it was important to have representation at the very early stages of the process. Given the importance of information collected – especially admissions – from the accused soon after arrest – “very early” was often defined as considerably before the first court appearance.
The earlier stages of the court process are especially important because (as noted before) it is at those appearances that the court or the accused make decisions that will have significant impacts on the outcome of the case (e.g., from failing to obtain bail, to failing to obtain legal representation, to pleading guilty).
On a more general level it is difficult to believe that unrepresented accused are capable of formulating an appropriate defence strategy, given that many of our interviewees explicitly noted that:
- Unrepresented accused (except for repeaters/professionals) do not understand what is happening to them at many stages of the court process – or what was decided at verdict and sentencing.
- Unrepresented accused do not understand how being unrepresented precludes certain activities during the court process. For instance, it is rare to find a Crown who will plea bargain with an unrepresented accused (because of fear of censure, becoming a witness to a damaging statement or admission of guilt, etc), so unrepresented accused do not benefit from reduced or dropped charges, or recommendations at sentencing.
- Further – as will be shown in the following sections – unrepresented accused (again, except perhaps for repeaters/professionals) are not aware of the many legal options available to them, nor of the procedural and strategic mistakes counsel would likely prevent them from making.
(b) Socio-Economic Impacts on the Accused
Those interviewed also noted that unrepresented accused are also less likely to formulate the most appropriate overall defence strategy – especially regarding pleading guilty or not guilty This is because they do not understand the socio-economic consequences of a criminal conviction and record – or tend only to think in terms of whether/how much jail time they will get. They may plead out without being aware of socio- economic consequences such as:
- the outcomes of future encounters with the criminal justice system being significantly affected by the presence of the cumulative record – (including the likelihood of pre-trial release, dropping of some charges, etc);
- being excluded from entering certain university streams;
- being shut out of future job prospects, getting bonded for certain jobs, retaining other jobs;
- incurring driving prohibitions, which can affect their and their family’s livelihood;
- being unable to cross the U.S. border;
- being unable to serve in the military;
- being barred from immigrating or emigrating – or being deported; and/or
- severe problems in continuing important familial relationships and responsibilities.
Informants also provided numerous examples of unrepresented accused agreeing to – or at least not raising arguments against – specific court decisions, because the accused had not considered the specific socio-economic implications of those decisions. The most frequent examples related to:
- Unrepresented accused quietly acquiescing to certain bail or sentencing conditions – without considering how those conditions might impact on the accused’s ability to fulfill family obligations (e.g., a driving prohibition or peace bond preventing him or her from driving the children to school), or maintain a current job under, for example, certain driving prohibitions or time and/or location curfews.
In contrast, those interviewed also noted a number of ways in which the knowledge of socio-economic factors affected – often inappropriately – specific decisions made by unrepresented accused. For instance:
- Accused may plead guilty – even when they have a legal defence – because they are ashamed or embarrassed and want to minimize the shame and publicity.
- Accused often plead guilty because they cannot live with their bail restrictions or afford the time for numerous court appearances and a trial – and their impact on the accused’s family and/or economic responsibilities.
(c) Pre-trial: Errors Made by Unrepresented Accused
Key informants were also asked to indicate the most serious specific errors made by unrepresented accused. The most frequently mentioned errors are listed in Figure 5.1 below.
The Direct Court Observation found that, overall, a quarter of the appearances in the non-trial courts in different sites typically took one or two minutes, or even less. Within the context of this type of time pressure, it is not difficult to understand why many of those interviewed noted that an accused lacking a developed understanding of court procedures would make specific mistakes – and would be disoriented generally throughout the court process.
(d) Timing of Pleas
As noted above, one of the concerns raised by interviewees was that unrepresented accused were more likely to plead guilty early – “to get it over with,” as they frequently put it themselves.
The empirical data gathered for this study on disposed cases allows us to test whether this perception reflects reality. The data available included information on the appearance number at which pleas were entered, broken down by representation type (self, duty counsel or private counsel) at that appearance. Figure 5.2 summarizes these data for the nine study sites.
As shown in Figure 5.2, in most sites,self-represented accused do indeed typically plead earlier than represented accused – at least compared to accused represented by private counsel. Unrepresented accused typically plead at their first or second appearance. On the other hand, accused assisted by private counsel typically did not enter pleas until later – with at least 50 percent not entering pleas until their third to sixth (or later) appearances.
However, as with other findings of this study, there are exceptions to the general rule. The exception here is Scarborough, where pleas were typically entered by self-represented accused at later appearances than in other courts in the study – and after roughly the same number of appearances as for accused represented by private counsel.
One also finds differences among the courts when one compares the appearance numbers at which pleas are entered by self-represented accused with the appearance numbers at which pleas are entered by accused assisted by duty counsel. Three groupings of courts are found:
- Courts in which pleas are entered earlier by unrepresented accused (St. John’s, Halifax, Regina).
- Courts in which pleas are entered after roughly the same number of appearances for unrepresented accused and accused assisted by duty counsel (Bathurst, Edmonton and Kelowna).
- Courts in which pleas are entered later by unrepresented accused (Scarborough).
(e) Pre-trial: Impact on Outcomes
Another key concern raised was whether unrepresented accused are more likely to plead guilty. In fact, the data suggest that unrepresented accused are more likely to plead guilty in some courts – but less likely to plead guilty in other courts. Figure 5.3 uses data from the disposed cases sample to calculate the proportion of accused pleading guilty, broken down by representation type (self, duty counsel or private counsel) at that appearance.
We first compare the likelihoods of unrepresented accused pleading guilty with analogous likelihoods for accused represented by private counsel. Three groupings of courts are found:
- Courts in which guilty pleas are more likely to be entered by unrepresented accused (St. John’s, Bathurst, Edmonton).
- Courts in which guilty pleas are entered with roughly the same probabilities for unrepresented accused and accused represented by private counsel (Halifax, Sherbrooke, Regina and Kelowna).
- Courts in which guilty pleas are less likely to be entered by unrepresented accused (Scarborough)
However, different results apply when we compare the likelihoods of unrepresented accused pleading guilty with analogous likelihoods for accused represented by duty counsel. Again, three groupings of courts are found, but the courts were grouped differently:
- Courts in which guilty pleas are more likely to be entered by unrepresented accused than by accused represented by duty counsel (St. John’s).
- Courts in which guilty pleas are entered with roughly the same probabilities for unrepresented accused and accused represented by duty counsel (Bathurst, Edmonton, Regina and Kelowna).
- Courts in which guilty pleas are less likely to be entered by unrepresented accused than by accused represented by duty counsel (Halifax and Scarborough).
It is, however, important to make it clear 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 an unrepresented accused person to plead guilty, but rather to simply describe whether or not, and how frequently, significant decisions are made and certain outcomes occurred with or without the presence of counsel.
(a) Trial and Sentencing: Process
Given the special legal procedures that apply and the types of issues that are raised at trial, it is not surprising that many of those interviewed in all sites highlighted the need for representation at trial.
The following are among the most serious errors that interviewees suggested would be made by unrepresented accused at trial:
(b) Trial and Sentencing: Impacts on Outcomes
Our data allowed us to look at two key indicators of the outcomes of trial and sentencing: conviction rates and rates of receiving custodial sentences.
Conviction Rates. Our data suggest that, in most courts, unrepresented accused are convicted in from 50 percent to 96 percent of the cases. But, are unrepresented accused more likely to be convicted than those who are represented? Our data suggest they are not, but this may reflect other factors – for instance, the possibility that diverted (and therefore not convicted) cases are more likely to be unrepresented.
Figure 5.5 uses data from the disposed cases sample to provide, for each of the nine courts in the study, estimates of the proportion of accused convicted on one or more of the charges they faced, broken down by representation type (self, duty counsel or private counsel) at that appearance.
As shown in Figure 5.5, in all but one site, the conviction rates for unrepresented accused did not vary greatly from those for accused represented by private counsel.
One finds – for the majority of sites – similar results (i.e., similar conviction rates) when one compares conviction rates for unrepresented accused with those for accused assisted by duty counsel. However, for three of the sites, one finds conviction rates for self-represented accused to be considerably below those for accused assisted by duty counsel.
One should, however, note that in comparing conviction rates for un- represented accused with those for represented accused, one should take into account the likely impact of post-charge and pre-court process “diversion” on these conviction statistics. Accused who are diverted are extremely likely to not have a lawyer. Given that successful completion of the diversion program will result in non-conviction, the existence of a diversion program would be expected to result in lower overall conviction rates for self- represented cases (with little if any impact on conviction rates for represented cases). Unfortunately, data were not available on which cases were diverted or even the percentage of cases that were diverted in each of the sites in the study. Therefore, we cannot say what the conviction rate would be for unrepresented accused in each site who were not diverted. However, it is safe to say that the rate for non-diverted, un-represented accused would be higher than the percentages shown in Figure 5.5.
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 many unrepresented accused will experience serious negative impacts as a result of the court process. Whether or not that possibility alone is sufficient to call for greater availability of legal representation is a matter of public policy.
Rates of imposition of custodial sentences. Our data can be used to address two questions regarding how many unrepresented accused suffer deprivation of liberty.
First, do significant proportions of unrepresented accused receive custodial sentences? Our data suggest that the answer is yes. Although less than 10 percent of unrepresented accused received custodial sentences in two sites, over 10 percent received custodial sentences in the other seven sites – with more than 15 percent receiving custodial sentences in three of those sites.
The second question is, are unrepresented accused more likely than represented accused to go to jail? Our data suggest that they are not.
Figure 5.6 summarizes data from the disposed cases samples to show the proportion of accused given custodial sentences, broken down by representation type (self, duty counsel or private counsel) at that appearance.
In all but one site, custodial sentences were least likely for accused who were un-represented – as opposed to accused represented by either duty counsel or by private counsel.
When one compares imprisonment rates for accused represented by duty counsel with those for private counsel:
- For three courts, imprisonment rates were higher for cases represented by duty counsel;
- For four courts, imprisonment rates were similar for cases represented by duty counsel and those represented by private counsel; and
- For one court, the imprisonment rate was higher for cases represented by private counsel.
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 get a custodial sentence, it is relevant that custodial sentences are received by at least one in ten self-represented accused in seven of the courts considered.
Figure 5.6 Variation in Probability of Accused Receiving a Custodial Sentence by Type of Representation Disposed Cases: Percentage of Accused Receiving a Custodial Sentence (if convicted on at least one charge) by Type of Representation at Last Appearance by Site
 Data were not available on which cases in our samples were or were not diverted. However, since diverted cases are much more likely to be unrepresented than represented, it is safe to conclude that conviction rates of unrepresented accused who were not diverted would be above those shown for all (i.e., diverted plus not diverted) unrepresented cases in Figure 5.5.
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