Court Site Study of Adult Unrepresented Accused in the Provincial Criminal Courts (Part 2: Site Reports)
Chapter 2: Regina (continued)
2.5 Impact of self-representation on the accused
2.5.1 Overall impact
The site visit interviews provided interesting insights and perceptions on the subject of general impacts of lack of representation on accused persons. Some interviewees were of the view that unrepresented accused suffered significant impacts from the lack of representation. However, others were of the view that unrepresented accused cases, and cases assisted through duty counsel, were resolved just as fairly as any other case, because of the efforts of judges to compensate for the disadvantages.
Among the general types of situations and impacts cited by the former, were the following:
- The fear, anxiety and confusion experienced by unrepresented accused before, during and after the court process.
- A lack of understanding of the criminal process and the consequent inability to influence it in a productive way (almost universally acknowledged as a serious problem).
- Throughout the process, accused not standing on their rights. In the words of one judge, "So many of the people we deal with don't have a sense of entitlement, so they just accept things; OK, so you want me to plead guilty to this. … Our only chance of getting people to stand on the rights they have is to get them a lawyer."
- A lack of understanding of what it means to have a criminal record – which many suggested can be "devastating" in ways not anticipated; for example, with respect to immigration matters, to job applications, to rights to drive a vehicle – led to inappropriate court decisions by the unrepresented accused.
- The imposition of unworkable conditions of bail or sentence – that must then be altered, or will be violated. For instance, the accused may not understand that bail conditions apply throughout the court process, and not solely until the next appearance – or that sentence conditions may prevent the accused from performing duties required as a parent (e.g., the accused cannot take children to school if limits are placed on his or her mobility, even if a sentence is being served in the community).
- More severe sentences.
2.5.2 Specific strategic and tactical mistakes by the accused
As noted earlier, in the site interviews, most key informants suggested the earlier stages of the criminal process – initially at arrest, after charging, pre-trial release, and at plea – were the most important for representation. A few suggested trial was the most important stage, and most suggested sentencing was very important.
The following were among the most serious specific errors that interviewees suggested would be made by unrepresented accused at pre-trial stages:
- Not availing themselves of duty counsel, who could argue for their pre-trial release more effectively, obtain sureties, point out the likely outcome of the case, etc.
- Not asking for mediation or other diversion.
- Failing to understand the significance of failing to appear for court, or of adherence to conditions.
- Making damaging admissions during the early arraignment, bail, set date, and plea negotiation stages.
- "Giving up" and pleading guilty too soon to all of the original charges, and without a full understanding of the consequences – with the resultant conviction for unrepresented accused who might have had a viable defence to at least some of the charges.
- Assuming that any conditions imposed on them by the court only applied until their next appearance, resulting in violations.
The following were among the most serious specific errors that interviewees suggested would be made by unrepresented accused at trial:
- Making damaging admissions just before (e.g., pleading guilty at the last instant even though the Crown is missing key evidence), and at trial.
- Not learning the Crown's case against them or preparing for it.
- Not knowing what defences were available to them.
- Not questioning witnesses and other evidence. (One judge suggested that witness statements should always be subjected to scrutiny, and that they will not be, without a lawyer.)
- Not bringing witnesses of their own.
- Not being able to fathom complex defences.
- "Raising useless arguments."
- Not explaining the circumstances of the offence in a way that could mitigate the consequences (e.g., "the car belonged to my cousin").
- Not mentioning mitigating circumstances in their lives (e.g., "Since the offence I have gotten a job and taken 10 hours of counseling.").
- Not knowing the best arguments to present at sentencing.
The court observations found that, overall, the average amount of time taken per appearance was two minutes and 45 seconds. On different court days, this varied from an average of one and a half minutes to an average of just over six minutes.[12] Within the context of this type of time pressure, it is not difficult to understand why many of those interviewed noted that an accused without a developed understanding of court procedures would make specific mistakes – and would be disoriented generally throughout the court process.
2.5.3 Type of plea entered by type of representation
The previous discussion focused on the perceptions of those interviewed regarding the impacts of accused appearing before the court without representation. In this and following sections, we provide empirical evidence on what actually happened to unrepresented accused, using data on cases in the Disposed Cases file and from the appearances directly observed in court.
It is, however, important to make it clear at the outset that the information is not presented to draw causal inferences, but simply to describe the events at various stages in the process. The evidence is not presented to suggest that the lack of representation caused, for example, a higher (or lower) likelihood that an unrepresented accused would be convicted. Rather, it simply describes whether or not, and how frequently, significant decisions were made and certain outcomes occurred with or without the presence of counsel.
2.5.4 Type of plea entered by type of representation
As noted earlier, a number of interviewees raised the issue of whether or not unrepresented accused were more likely to plead guilty – for instance, to "get it over with," or because they had neither the knowledge nor resources to contest the charges.
Figure R-6 displays the plea entered by the type of representation available to the accused.
- Eighty-one percent of all pleas were guilty pleas.
- A slightly higher percentage (86 percent) of unrepresented accused were likely to plead guilty.
- However, accused assisted by legal aid pled guilty with virtually the same frequency (85 percent) as unrepresented accused.
- Unrepresented accused pled guilty far more frequently than accused who were represented by private counsel (62 percent).
- Accused with appointed counsel were more likely to plead guilty (96 percent) than unrepresented accused.
| Plea | Proportion of all Pleas by or on behalf of Accused Represented by | Number of Cases | Proportion of Cases % | |||
|---|---|---|---|---|---|---|
| Self % | Legal Aid % | Private Counsel % | Appointed Counsel % | |||
| Guilty | 86 | 85 | 62 | 96 | 4130 | 81 |
| Not guilty | 14 | 15 | 38 | 4 | 995 | 19 |
| Total Cases | 100 | 100 | 100 | 100 | 5125 | 100 |
Notes
* Excludes cases for which representation at plea was unspecified in the file.
by Type of Plea Entered by Type of Representation at Plea Appearance, Regina
This overall pattern held true across most individual offence categories. However, for sexual offences and robbery, the guilty plea rate for unrepresented accused was considerably lower than that for accused who were represented by Legal Aid staff lawyers. For impaired driving, the reverse was true.
2.5.5 Conviction or not by type of representation
Conviction rates are examined in terms of representation at two stages of the court process – at appearances at which the plea was entered (containing more dispositions by way of guilty plea) and at final appearances (containing a higher proportion of cases that went to trial).
Figure R-7 shows the conviction rates for cases by the type of representation at plea. The data suggest that:
- Overall, 86 percent of cases in which a plea is entered were convicted.
- Cases represented by appointed counsel at plea had the highest conviction rates, 96 percent.
- Rates of conviction for cases unrepresented or represented by Legal Aid at plea were virtually identical (at 88 percent and 89 percent, respectively).
- Rates of conviction for accused represented by private counsel at plea (other than appointed counsel) were significantly lower (73 percent) than those for accused with other types of representation at plea.
An analysis of conviction rates by representation at plea appearance – separately for different offence categories – showed that this overall pattern held across offence groupings, with the exception that accused who were self-represented at plea, and who were charged with offences against the administration of justice, had a slightly lower conviction rate than did accused who were represented by Legal Aid staff lawyers (88 percent versus 93 percent).
| Disposition | Proportion of Dispositions for Accused Represented by | Number of Cases | Proportion of Cases % | |||
|---|---|---|---|---|---|---|
| Self % | Legal Aid % | Private Counsel % | Appointed Counsel % | |||
| Convicted* | 88 | 89 | 73 | 94 | 4399 | 86 |
| Not Convicted** | 12 | 11 | 27 | 6 | 726 | 14 |
| Total Cases | 100 | 100 | 100 | 100 | 5125 | 100 |
Notes
Pleas are not entered in cases in which all charges are withdrawn or stayed.
- * Includes guilty verdict and peace bond ordered.
- ** Includes not guilty and discharges.
Figure R-8 shows similar information, but, instead, analysis is done using representation at final appearance. Different results are possible for a number of reasons. First, accused who were unrepresented at plea may have retained private counsel or had Legal Aid assist them later in the court process. To the extent that those with weaker cases would retain counsel, the conviction rates of unrepresented cases would go down, and the conviction rates of cases with counsel would be higher. However, an even more important reason for lower conviction rates showing in Figure R-8 – in cases with all types of representation – was that pleas were not likely to be entered in cases stayed or withdrawn by the Crown – a not insignificant proportion of cases. The inclusion of such cases in Figure R-8, but not in Figure R-7, would be expected to have a significant impact on the percentages shown in the Figures.
In fact, when all disposed cases are considered (i.e., not only those in which a plea was entered), overall, 69 percent of cases resulted in convictions:
- Cases represented by appointed counsel at last appearance again had the highest conviction rates, 78 percent.
- Rates of conviction for unrepresented accused and accused represented by Legal Aid were identical (at 70 percent).
- Rates of conviction for accused represented by private counsel (other than appointed counsel) were, again, lower (62 percent) than those for cases with other types of representation.
One should, however, note that, in comparing conviction rates for self-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 were diverted (e.g., to the RAMP program in Regina) were extremely likely to not have a lawyer. Given that successful completion of the diversion program would 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 case). Unfortunately, data were not available on which cases were diverted or even the percentage of cases that were diverted, and, therefore, we cannot say what the conviction rate would be for unrepresented accused who were not diverted. However, it is safe to say that the rate for non-diverted, non-represented accused would be higher than the 70 percent shown in Figure R-8.
Next, further analysis of conviction rates by representation at final appearance, according to individual offence categories, shows that, for many offence groupings, the above overall pattern did not hold. The following exceptions were seen:
- Rates of conviction for unrepresented accused were higher than for accused represented by Legal Aid at last appearance, where the accused was charged with public order offences (86 percent vs. 74 percent).
- Rates of conviction for unrepresented accused were considerably lower than for accused represented by Legal Aid at last appearance, where the accused was charged with break and enter and assaults other than common assault (55 percent vs. 81 percent, and 55 percent vs. 69 percent, respectively).
| Disposition | Proportion of Dispositions for Accused Represented by | Number of Cases | Proportion of Cases % | |||
|---|---|---|---|---|---|---|
| Self % | Legal Aid % | Private Counsel % | Appointed Counsel % | |||
| Convicted* | 70 | 70 | 62 | 78 | 4706 | 69 |
| Not Convicted** | 30 | 30 | 38 | 22 | 2123 | 31 |
| Total Cases | 100 | 100 | 100 | 100 | 6829 | 100 |
Notes
- * Includes guilty verdict and peace bond ordered.
- ** Includes not guilty, withdrawn, dismissed, stayed, and discharges.
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 unrepresented accused are very likely to 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.
2.5.6 Custodial sentence and type of representation
Figure R-9 extends the analysis by showing the proportions of cases receiving a custodial sentence, according to the type of representation available to the accused at the plea appearance.[13]
From that Figure, one sees that:
- verall, 28 percent of cases in which a plea was entered resulted in a custodial sentence.
- Cases represented at plea by Legal Aid were (as the seriousness criterion would suggest) more likely to result in a custodial sentence (36 percent).
- Slightly more cases represented by private counsel resulted in a custodial sentence (23 percent) than did unrepresented cases (21 percent).
- Cases represented by appointed counsel were least likely to result in a custodial sentence (10 percent).
An analysis of the likelihood of receiving custodial sentences by representation at plea – according to individual offence category – shows that this overall pattern held across offence groupings, with the exception that accused who were self-represented at plea, and who were charged with break and enter, were more likely to receive a jail term than those represented by Legal Aid (57 percent vs. 35 percent); and self-represented accused who were charged with assaults fared moderately better than those represented by private counsel (18 percent vs. 24 percent); while those charged with offences against the administration of justice fared worse (29 percent vs. 21 percent).
| Sentence | Represented by | Number of Cases | Proportion of Cases % | |||
|---|---|---|---|---|---|---|
| Self % | Legal Aid % | Private Counsel % | Appointed Counsel % | |||
| Custodial Sentence | 21 | 36 | 23 | 10 | 1431 | 28 |
| No Custodial Sentence | 79 | 64 | 87 | 90 | 3694 | 72 |
| Total Cases | 100 | 100 | 100 | 100 | 5125 | 100 |
Notes Source: Disposed Cases Sample
Figure R-10 shows the distribution of custodial sentences for cases by representation at final appearance (which contains additional cases in which a plea was not entered):
- Overall, 22 percent of disposed cases resulted in a custodial sentence.
- Legal Aid cases were (as the seriousness criterion would suggest) more likely to result in a custodial sentence (27 percent).
- Unrepresented accused and accused represented by private counsel had very similar rates of custodial sentences (16 percent and 18 percent, respectively).[14]
- Cases with appointed counsel were least likely of all to result in a custodial sentence (8 percent).
An analysis of custodial sentences by representation at final appearance, according to individual offence category, shows that this overall pattern held across offence groupings – with the exception that self-represented accused who were charged with impaired driving, or assaults other than common assault, were less likely to receive a jail term than those represented by private counsel. The imprisonment rates for thefts and frauds and break and enter were virtually identical across all types of representation at last appearance.
| Sentence | Represented by | Number of Cases | Proportion of Cases % | |||
|---|---|---|---|---|---|---|
| Self % | Legal Aid % | Private Counsel % | Appointed Counsel % | |||
| Custodial Sentence | 16 | 27 | 18 | 8 | 1472 | 22 |
| No Custodial Sentence | 84 | 73 | 82 | 92 | 5357 | 78 |
| Total Cases | 100 | 100 | 100 | 100 | 6829 | 100 |
Notes
Source: Disposed Cases sample.
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 might be 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 result in a custodial sentence, it is relevant that custodial sentences are received by more than one in 10 self-represented accused – and by more than one in five accused who are self-represented at plea.
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