Court Site Study of Adult Unrepresented Accused in the Provincial Criminal Courts (Part 2: Site Reports)
Chapter 2: Regina (continued)
2.2 Context of the court and legal aid
One of the major conclusions – supported from data from all sites – was that data on the extent of legal representation in a particular court cannot be interpreted out of context of (at least):
- The type of community served (including the nature of accused persons brought before the court).
- The resources and management and operations practices in place in the courts.
- Legal aid policies and practices – especially the duty counsel system in place.
- The policies and practices of all of the other key participants in the court process – including the judiciary, the police, the Crown attorneys, court workers, court administrative officials, the private bar, and other supporting agencies.
All of these factors, policies and practices can have significant mitigating or exacerbating influences on the impacts of self-representation. This contextual information is thus essential to understanding the problems and potential solutions to challenges related to the unrepresented accused.
This section will specifically address the first three of the above areas. Information on the fourth is contained throughout the report.
2.2.1 The community
Regina, the capital of Saskatchewan, is at the commercial and financial centre of the province, and the hub of a multi-billion dollar agricultural economy. Recent industrial developments have included a major steel plant and Canada's first heavy-oil upgrader. Regina has the head office of the Saskatchewan Wheat Pool – the largest grain-handling co-operative in the world.
In the 2001 Census, the city of Regina reported a population of 178,225, a decrease of 1.2 percent from the population reported in the 1996 Census. Approximately 23 percent of males and 22 percent of females in Regina were in the 15-to-29 age range associated with the highest rates of crime. The population density of Regina was 1,501.9 per square kilometre, and 96 percent of residents indicated English was the language they spoke at home.
Regina's estimated average income per capita in 2001 was $22,300, similar to the provincial average of $22,541. The average household income in Regina in 2001 was reported to be $54,600, somewhat higher than the provincial average of $48,300.
In 2001, Regina reported an unemployment rate of 5.5 percent, marginally higher than the provincial rate of 5.3 percent.
Of the population of Regina aged 25 and over, 9.3 percent (9.7 percent of females and 8.9 percent of males) were reported to have less than a Grade 9 education. This was significantly lower than the provincial rate of 15.4 percent. Regina's population included a comparatively high proportion of persons with a high school certificate or higher level of education (69.3 percent, compared to the provincial average of 59.2 percent).
In 2001, the number of single-parent families in Regina was reported to be 8,235, or 17 percent of the approximately 51,200 families in private households in the city. This was somewhat higher than the provincial rate of 13 percent.
In Regina in 2001, it was estimated that, of the approximately 75,919 occupied private dwellings, 49,092 or 65 percent were owner-occupied. This was similar to the provincial rate of 68 percent owner-occupied private dwellings.
The rate of violent crime in Regina decreased by 6.6 percent from 1999 to 2000. The rate of violent crime for 2000 was 1,590 per 100,000 population. Property crime rates also decreased from 1999 to 2000, but by a smaller margin. The year-over-year decrease in the property crime rate was reported to be 1.0 percent. For 2000, the property crime rate was 8,414 per 100,000 population. Regina's total crime rate decreased by 2.4 percent from 1999 to 2000, and was reported as 14,769 per 100,000. These rates were higher than the provincial rates, however. The total number of offences against the Criminal Code and other federal statutes in Regina (excluding traffic offences) for 2000 was 29,606.
2.2.2 The court
a. Scheduling of cases
Figure R-1 on the following page highlights the key features of the courthouse and the case scheduling practices. In general, cases originating in Regina are scheduled for their first appearance in Provincial Court either in Courtroom number 1 or 2, depending on whether or not accused are being detained in custody. Those courtrooms hear first appearances and other appearances that occur prior to being set for trial in a trial court. It was in those courtrooms that we directly observed court appearances of cases.
| Two docket courtrooms | Cases called for 9:30 a.m. and 2 p.m. One for non-custody first appearances, adjournments, guilty pleas and special applications One for custodial | Do not split drugs and CCC |
|---|---|---|
| Four trial courtrooms | One for lengthy trials Three for regular trials (preliminary inquiries mixed with trials) | |
| Special courts | None | |
| Six Circuit Courts | Fort Qu'Appelle Okanese (First Nations) Southey Indian Head Carry the Kettle (First Nations) Milestone | One-day trips, 2 days per week, Records kept at Regina courthouse |
b. Special case/case-flow management concerns
The Regina court is facing serious backlogs, which have grown in the past year. At the time of the site visit, trials for accused who were not in custody were being set for eight months in the future, six-to-eight weeks ahead for those in custody. The court was in the early stages of examining new models for case management, including bringing all concerned parties together to agree on certain possible approaches.
c. An overview of case volumes and mix of cases
Figure R-2 provides an overview description of the numbers of cases heard in the Regina court in a recent 12-month period.[2] The Figure shows that roughly half of the workload of the Regina court was accounted for by four categories of offences – common assault (13 percent), theft (10 percent), administration of justice (13 percent) and impaired driving (13 percent).
Figure R-2 also shows that the total caseload of the Regina court accounted for 23 percent of Saskatchewan's Provincial Court caseload. However, compared to the province as a whole, the Regina court caseload had relatively more cases involving homicide, attempted murder, robbery and/or morals-sexual charges – but relatively fewer arson cases.
| Most Serious Offence | Regina | Saskatchewan | |||
|---|---|---|---|---|---|
| # | as % of Regina Total | as % of SK | # | as % of SK Total | |
| Total | 6,192 | 100 | 23 | 26,429 | 100 |
| Homicide | 15 | 0 | 45 | 33 | 0 |
| Attempted Murder | 9 | 0 | 47 | 19 | 0 |
| Robbery | 96 | 2 | 42 | 231 | 1 |
| Kidnapping | 6 | 0 | 23 | 26 | 0 |
| Sexual Assault | 68 | 1 | 19 | 351 | 1 |
| Sexual Abuse | 9 | 0 | 15 | 59 | 0 |
| Major Assault | 428 | 7 | 29 | 1,477 | 6 |
| Abduction | 0 | 0 | 0 | 4 | 0 |
| Common Assault | 821 | 13 | 26 | 3,111 | 12 |
| Break & Enter | 220 | 4 | 24 | 923 | 3 |
| Arson | 2 | 0 | 9 | 22 | 0 |
| Fraud | 218 | 4 | 21 | 1,025 | 4 |
| Possession Stolen Property | 203 | 3 | 24 | 834 | 3 |
| Theft | 620 | 10 | 29 | 2,130 | 8 |
| Property Damage/Mischief | 216 | 3 | 20 | 1,096 | 4 |
| Weapons | 99 | 2 | 27 | 367 | 1 |
| Administration of Justice | 813 | 13 | 22 | 3,664 | 14 |
| Public Order Offences | 121 | 2 | 13 | 919 | 3 |
| Morals – Sexual | 153 | 2 | 58 | 266 | 1 |
| Morals – Gaming/Betting | 0 | 0 | 0 | 1 | 0 |
| Other Criminal Code | 690 | 11 | 24 | 2,886 | 11 |
| Criminal Code Traffic | 232 | 4 | 24 | 947 | 4 |
| Impaired Driving | 808 | 13 | 19 | 4,313 | 16 |
| Traffic/Import Drugs | 1 | 0 | 33 | 3 | 0 |
| Possession Drugs | 0 | 0 | 0 | 5 | 0 |
| Other Federal Statute | 344 | 6 | 20 | 1,717 | 6 |
Source: Canadian Centre for Justice Statistics, Statistics Canada.
2.2.3 The legal aid system
Legal aid in Saskatchewan is overwhelmingly a service delivered by staff lawyers. Figures produced by the Saskatchewan Legal Aid Commission show that, of 22,057 adult and youth cases (of all kinds) granted full service in 2000/01, all but 734 were handled by staff lawyers, not members of the private bar. The most common reason for issuing a certificate to a private bar member was conflict of interest (co-accused or victim-accused conflicts), although, even in conflict of interest cases, the actions may be divided among staff lawyers at different Commission offices within the province.
In 2000/01, about 83 percent of all legal aid clients in the province were on social assistance, and 71 percent identified themselves as being of Aboriginal descent. The Regina City office of the Commission handled 1,938 applications for service in adult criminal cases in that year.[3]
Staff lawyers are a mix of junior and senior members of the bar. Turnover is frequent among the junior lawyers, with some junior staff lawyers being lost regularly to Crown positions, but the senior staff lawyers tend to stay on. At the time of our site visit, in the spring of this year, staff salary levels were $10,000 lower than those of Crown attorneys with similar experience. However, with the implementation of pay equity in March 2002, the salary gap with Crown prosecutors was closed significantly.
At any given time, nine lawyers (in eight full-time positions) in the Regina City office are handling criminal matters for adults, including through duty counsel.[4]
At the time of the site visit, Legal Aid staff indicated that there was a one-week delay to get an appointment to complete the legal aid application form and a 10-day delay for a decision as to eligibility, if all of the accused's documentation was available. Once the accused was judged eligible for legal aid, there was a three-month delay before the accused's first intake interview with a lawyer. This latter delay had recently been reduced from six months. Applications for legal aid were made in person, by appointment at the Legal Aid Commission office, approximately a five-minute walk from the provincial courthouse. Some interviewees were of the view that delays in the legal aid application and delivery process were "driving" the court schedules.
2.2.4 Duty counsel
Knowledge of the resources, scope of activity, and policies and practices of the duty counsel system is especially important to understanding the implications of self-representation on the accused, and on the costs and efficiency of the court system.
Since the inception of a pilot project in 2001, duty counsel (two staff lawyers assisted by a paralegal) have been available to help custody cases with pre-trial release applications, and do so without first applying financial eligibility tests or coverage criteria.
In cases where the Crown is not opposed to the accused's release prior to trial (amounting to perhaps half the custody docket), the duty counsel will not see the accused. In a significant proportion of the remaining cases – some interviewees suggested it is as high as 50 percent of cases where the Crown is seeking continued detention – accused do not invoke the assistance of duty counsel to argue their bail application. This appears to be the case for two inter-related reasons:
- Even the Crown receives the file only 15-20 minutes before the first appearance, and, without the file and disclosure, the duty counsel does not try to speak to bail. (Additionally, there are apparently chronic problems with bringing detainees to court in time for interviews, and with lawyers' access to prisoners at the Correctional Centre, so detainees are not seen before first appearance.)
- Many accused are unwilling to wait for the day or two it will take for the duty counsel to prepare and argue for their release, and so choose to argue for their own release right away (or to plead guilty).
If the case is uncomplicated and can probably be resolved in 7-10 days, duty counsel may retain the case until completion. Otherwise, the accused will be required to apply for legal aid in the usual course of business, and duty counsel will cease to be the attorney of record. Staff lawyers are rotated out of the duty counsel position once a year. More rapid rotation is considered to cause too much additional work with regular caseloads in the transition period, and tends to cause more matters simply to be adjourned..
2.2.5 Other sources of assistance
During our visit to Regina, we interviewed representatives of two programs that also provide services that assist unrepresented accused; the Regina Alternative Measures Program (RAMP), and the Native Courtworkers Program.
a. RAMP
Although RAMP is primarily a program to assist in the provision of diversion services,[5] RAMP representatives do meet with adult accused (most of whom are unrepresented), usually before their first court appearance.[6] During those meetings, RAMP representatives may assist self-represented accused: by informing them of the legal aid program and/or by referring them to the Native Courtworkers. The RAMP personnel have very little contact with Legal Aid or duty counsel lawyers.
RAMP workers were asked whether having a lawyer at the early diversion stage would be a positive move. The answer was quite interesting, in that it was felt that diversion works best without the accused having a lawyer. One of the essential requirements for entering the RAMP program is for the accused to admit responsibility for the action and to assume responsibility for dealing with the consequences. It was felt that, if the accused had a lawyer, a significant proportion of that responsibility would be shifted over to that lawyer. As well, the focus of RAMP alternative programs is not on legal issues, but on changing one's life, getting help and building bridges to the community.
b. Native Courtworkers
The Regina court has three Native Courtworkers who are available (from their office in the courthouse) to provide a number of services to unrepresented accused. The Courtworkers indicated that they get 10-to-15 people "coming in off the street" every morning. Although the Native Courtworkers program was established to deal with Natives, Courtworkers will also assist non-Natives.
Examples of services offered include:
- Going into court with the accused and asking for an adjournment to give the Courtworker time to help the accused understand his or her case and the disclosure before making a plea.
- Making the accused less anxious by explaining the roles of judges, clerks, Crowns, etc.
- Going to the Crown on behalf of the unrepresented accused and asking if the Crown will likely be looking for a custodial sentence – and, if so, referring the accused to Legal Aid.
- Encouraging accused who are intimidated, and want to plead guilty "to get it over with," to get an adjournment to consider options more fully.
- Helping the accused with a guilty plea.
- Helping speak to sentence (otherwise, naturally reticent people will "clam up").[7]
The Native Courtworkers seem to work well with the duty counsel, who refer people to them. In fact, duty counsel have increased the work of the Courtworkers – partly by sending accused who are suspected of being not guilty, but are not likely to get legal aid assistance.
On the other hand, there is considerable variation from one judge to another with respect to the role Native Courtworkers are allowed to play in their courts.
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