JustResearch Edition no. 11

5. Research in Profile

5. Research in Profile

5.1 A Burden on The Court? Self-Representing Accused in Canadian Criminal Courts

By Ab Currie, Principal Researcher, Research and Statistics Division

Introduction

It is often argued that self-representing accused place a burden on the courts. The burden on the courts caused by the presence of self-representing accused has two main aspects. One relates to the normal roles of judges and prosecutors in adversarial justice. It is frequently observed that judges and prosecutors have to step outside of their normal roles to assist self-representing accused. Because they do not know how to argue a case, self-representing accused may jeopardize their rights. Thus, judges and, to a certain extent, prosecutors, because they are officers of the court and are bound to uphold fair process, are obliged to intervene in ways that are outside the norms of the adversarial process.

A second aspect is that self-representing accused are said to slow down the court process. The criminal court process at the pre-trial stages moves at a very fast pace. Appearance times are typically measured in minutes as the court moves through crowded dockets. The "efficiency" of the court is dependent on the presence of trained prosecutors and defence counsel who are familiar with court procedures. With the possible exception of experienced criminals who are repeat users of the court, self-representing accused are unfamiliar with the law and with court procedures. Low levels of literacy, low levels of education, mental disorders and cognitive limitations often related to excessive alcohol and drug abuse occur more frequently among criminal accused than in the general population, and are limitations on the capacities of self-representing accused to function unassisted in the court process. As a consequence, self-representing accused are unsure about the charges against them and the possible consequences, are completely ignorant about the court process, do not know when or how to make arguments, or talk too long and get off the point when they do speak in court. The necessity for judges to intervene in order to explain the process to self-representing accused contributes to the problem of self-representing accused slowing down the courts.

According to these arguments it should bear out that self-representing accused take longer to move through the courts. The burden on the court hypothesis should be borne out by a number of measures. If self-representing accused slow down the courts, pleas may be entered later, appearance times may be longer, the number of appearances per case may be greater, and the length of time to dispose of a case may be longer for self-representing accused compared with accused who are represented by a lawyer.

Method

Data from a recent study of self-representing accused in Canadian criminal courts (Hann, Nuffield, Meredith & Svoboda, 2003) allows each of these propositions to be examined. The self-representing accused study gathered data from nine provincial courts in Canada, which were selected to represent a wide variety of city types and accused populations. Prince Edward Island was the only province not included. Data from one of the nine participating provinces (Manitoba) was not sufficiently detailed to include in the present research. The remaining eight databases allow an examination of the burden on the court hypothesis using indicators for each of the variables proposed above. Two measures are presented for each variable, the median observation and the observation for the 75th percentile. In each case the data compare self-representing accused with accused represented by legal aid duty counsel and with clients represented by other lawyers. Legal aid duty counsel, whether private bar lawyers or staff lawyers, could be identified in all of the courts. However, it was not possible, except for two courts, to distinguish accused represented by legal aid lawyers and those represented by privately retained counsel. The latter category is, therefore, a mix of the legal aid lawyers, both staff and private bar lawyers on certificates, and lawyers privately retained by accused. Where it was possible to make the distinction between legal aid and privately retained lawyers other than duty counsel, the two categories are identified in the tables.

The data used in this analysis were from samples of disposed cases drawn from court databases in each of the eight courts. The sample sizes and methods of collection varied from one court to the next, depending on factors unique to the particular court database. The sample sizes are as follows: St. John's, a random sample of 501 cases; Halifax, a random sample of 509 cases; Bathurst, 250 cases disposed in late 2001; Sherbrooke, 250 cases disposed in late 2001, a random sample of 495 cases disposed from September through November of 2001; Brandon, all 2761 cases disposed between October and December of 2001; Regina, all 10,000 cases disposed in 2001; Edmonton, 623 cases disposed in late 2000 and early 2001; and Kelowna, all 1020 cases disposed in 2001[1]. The data represent criminal court appearances from first appearance to final appearance at which a sentence was passed.

Results

Timing of Pleas

This is the least certain of the indicators of burden on the court. Lawyers interviewed in the court study were asked to identify mistakes frequently made by self-representing accused. Respondents indicated that, at first appearance, self-representing accused did not know when to plead guilty and some accused tended to "test the tolerance levels of judges by seeking multiple postponements" (Hann et al., 2003a, p.19). These observations are an indication that accused might plead guilty later rather than earlier. On the other hand, the respondents reported that self-representing accused tended to plead guilty to 'get it over with', plead guilty as soon as they are denied bail in order to avoid jail, plead guilty before seeing the disclosure and plead guilty even when they have a viable defence (Hann et al., 2003a). These observations suggest that self-representing accused would tend to plead guilty earlier in the court process. Although there are arguments pointing in both directions, on balance, the tendency should be for self-representing accused to plead guilty earlier, and thus to be less of a burden on the court.

Table 1a - Median Appearance at Which Plea Was Entered
Court Location SJ H B SH SC R E K
Self-Represented 1 2 1 1 7 2 2 2
Duty Counsel 4 3 1 -- 2 6 2 2
Private or Staff Lawyer 3 5/3 3 3 7 6/16 4 4

Table 1b - Appearance at Which 75% of Accused Enter a Guilty Plea
Court Location SJ H B SH SC R E K
Self-Represented 3 3 2 1 13 5 3 3
Duty Counsel 6 4 1 -- 4 9 2 3
Private or Staff Lawyer 6 7/5 4 6 10 9 5 7

An examination of the data in Table 1a and Table 1b show that self-representing accused enter guilty pleas earlier than accused who have legal representation in four cities; St. John's, Halifax, Regina and Sherbrooke. They enter guilty pleas at about the same time in Bathurst, Edmonton and Kelowna. In only one court, Scarborough, did self-representing accused enter guilty pleas later than accused with legal representation.

Self-representing accused do not place a greater burden on the court in terms of the timing of pleas. It is possible that self-representing accused did consume the time of judges who may have been required to provide assistance to these accused. The court observation component of the research did not gather data about this issue. However, the greater burden might be reflected in the data presented on the number of appearances and appearance times.

Duration of Individual Appearances

If self-representing accused place a greater burden on the courts, the duration of appearances may be longer. Table 2a and Table 2b show the median duration of appearances in minutes and the appearance times in minutes for 75 % of cases.

Table 2a - Median Duration of Appearance in Minutes
Court Location SJ H B SH SC R E K
Self-Represented 2/4 2 4 1 2 2 1 1
Duty Counsel 4 6 1 -- 2 2 1 3
Private or Staff Lawyer 3 2 3 5 2 2 1 2

Table 2b - Duration of 75% Of Appearances in Minutes
Court Location SJ H B SH SC R E K
Self-Represented 4/8 3 7 2 2 2 1 4
Duty Counsel 12 7 2 -- 4 6 3 6
Private or Staff Lawyer 10/7 3 6 10 4 6 2 5

The only court in which appearance times for self-representing accused are longer than for accused with some form of legal representation is Bathurst. This is the case for both median and percentile measures. Clearly, self-representing accused do not consume more court time in terms of the length of appearances.

Number of Court Appearances

If self-representing accused place a greater burden on the criminal courts, there should be a difference in the number of court appearances per case compared with accused represented by counsel. Table 3a and Table 3b show the median number of appearances per case and the number of appearances for the lowest 75 % of all cases.

Table 3a - Median Number of Court Appearances for Disposed Cases
Court Location SJ H B SH SC R E K
Self-Represented 2 2 2 1 6 2 2 4
Duty Counsel 5 3 1 -- 3 5 2 3
Private or Staff Lawyer 5 5/4 4 4 7 5 4 7

Table 3b - Number of Court Appearances for 75% Of Disposed Cases
Court Location SJ H B SH SC R E K
Self-Represented 3 4 3 1 11 5 3 9
Duty Counsel 8 5 2 -- 5 9 2 6
Private or Staff Lawyer 7 8/7 5 7 10 9 6 16

There are three courts in which the median and 75th percentile appearance numbers are higher for self-representing accused compared with accused represented by duty counsel. These are Bathurst, Scarborough and Kelowna with respect to median number of appearances and Bathurst, Edmonton and Kelowna in terms of the number of appearances for disposed cases up to the 75th percentile. There are three courts, St. John's, Halifax and Regina, in which the number of appearances for self-representing accused is lower compared with accused represented by duty counsel. Edmonton shows the same number of appearances. Using the percentile measure, the number of appearances for 75 % of all cases is lower in St. John's Halifax and Regina. The number of appearances for the lowest 75 % of all disposed cases is higher in Bathurst, Scarborough, Edmonton and Kelowna.

In all but one of these courts, the number of appearances for self-representing accused is lower than for accused represented by other legal aid and privately retained lawyers. The percentile indicator for the Scarborough court is the one instance in which the number of appearances for self-representing accused is greater than for accused represented by both duty counsel and other lawyers.

Based on the comparison of the number of appearances in disposed cases between self-representing accused and accused with legal representation, there is no support for the hypothesis that self-representing accused place a greater burden on the courts.

Elapsed Time to Disposition of Cases

If self-representing accused place a burden on the criminal courts, the total elapsed time to disposition may be greater compared with accused having legal representation. Table 4a and Table 4b present the data on median elapsed time and elapsed time for the 75th percentile of disposed cases.

Table 4a - Median Elapsed Time For Disposed Cases in Weeks
Court Location SJ H B SH SC R E K
Self-Represented 1 14 7 13 24 4 8 1
Duty Counsel 21 5 2 -- 5 15 2 --
Private or Staff Lawyer 18 29/25 13 19 24 15/25 13 4

Table 4b - Total Elapsed Time for 75% of Disposed Cases in Weeks
Court Location SJ H B SH SC R E K
Self-Represented 8 29 12 23 39 24 18 7
Duty Counsel 43 21 9 -- 14 40 12 3
Private or Staff Lawyer 41 54/47 18 37 42 46 21 11

The evidence based on time to dispose of cases is mixed on the issue of the greater burden in the court because of self-representing accused. The median elapsed time to disposition for self-representing accused is greater than for accused represented by duty counsel in four courts (Halifax, Bathurst, Scarborough and Edmonton). It is less in two courts (St. John's and Regina). Data are not available for two courts. On the other hand, the median elapsed time to disposition is less for self-representing accused compared with accused represented by non-duty counsel lawyers in all courts except one, the Scarborough court in which elapsed times are both 24 weeks.

Comparing self-representing accused with accused represented by legal aid duty counsel lawyers, elapsed time to disposition for 75 % of disposed cases is greater for the self-representing group in five courts; Halifax, Bathurst, Scarborough, Edmonton and Kelowna. It is less in the St. John's and Regina courts. Comparing self-representing accused with accused represented by all lawyers other than legal aid duty counsel, elapsed time is less in all of the courts. However, the elapsed times are quite close in both Scarborough and Edmonton.

When duty counsel lawyers retain a case to disposition they tend to settle early. They settle earlier compared with accused self-representing but not as early as accused represented by other lawyers. Case complexity would probably partly explain the pattern observed in these data.

It is possible that duty counsel have a strong motivation to get cases off their desk, although staff lawyers and private bar lawyers working on a duty counsel roster would likely have different motivations for favouring quick dispositions. Staff lawyers, who may be assigned to duty counsel work for longer periods of time, might be motivated to seek quick dispositions because they have busy court schedules with first appearance, disposition or screening courts and bail courts meeting daily. Private bar lawyers performing duty counsel work on the basis of a roster might only be doing duty counsel work for a week, and would be motivated to seek quick dispositions within the time period of their assignment.

Conclusion

The data from the study of adult accused in Canadian provincial criminal courts does not support the claim that self-representing accused are a burden on the courts by slowing the pace and efficiency of the court. Almost all of the data suggest that the burden on the court hypothesis should be rejected. The data on elapsed time to disposition shows that elapsed times for self-representing accused tend to be greater than for accused represented by duty counsel. However, this may be a function of lower case complexity of cases handled by duty counsel, since the pattern is the reverse for other accused represented by all other lawyers, lawyers who would likely be dealing with cases that are more complex than duty counsel.

While the data do not point toward a greater burden on the court, the tendency toward earlier guilty pleas, fewer appearances, shorter times per appearance and, compared with duty counsel, longer time to disposition all suggest a burden on the accused. Even at the pre-trial stages the criminal courts are adversarial and they operate according to a complex set of rules in a formal atmosphere. The court dockets are crowded and the courts operate at a very fast pace, with appearances lasting only a few minutes. Although self-representing accused may choose to proceed without a lawyer, qualitative evidence from the lawyer interviews suggests that they do so for the wrong reasons. For instance, they self-represent because they feel they cannot wait for a lawyer to argue their case (Hann et al., 2003a). Further, they may not only choose to represent themselves for ill-advised reasons but may do so with unfortunate consequences, such as agreeing to unworkable release conditions (Hann et al., 2003a).

Judges may spend more time counselling self-representing accused, and as indicated above, the court observation data did not address this aspect of the issue. However, on the strength of the quantitative evidence, the lack of legal representation in criminal court cases does not appear to place a burden on the courts. The burden would seem to fall much more heavily on the accused and adds weight to the need for legal representation in criminal courts.

References

[1] For more detailed information on the samples see Hann, et al. (2003a) and Hann et al. (2003b).