Court Site Study of Adult Unrepresented Accused in the Provincial Criminal Courts (Part 2: Site Reports)
Chapter 3: Halifax, Nova Scotia (continued)
3.3 Frequency of accused appearing without representation
3.3.1 Self-representation over the life of the case
Given the general perception that not having representation has significant implications for the accused, it is important to understand how frequently self-represented accused appear at different stages of the court process.
It is apparent from the Disposed Cases file that it is not possible to characterize representation over the life of a case in any simple manner; an accused's representation status will often change from one appearance to the next, as, for example, when an accused may be represented by duty counsel at the bail hearing, but be self-represented afterwards.
Looking at the pattern of representation over all appearances:
- In 12 percent of the cases, the accused was self-represented at all appearances.
- In another 45 percent of the cases, the file indicated a mix of self-representation at some appearances and representation by counsel of some sort at the others.
- Therefore, the accused was unrepresented on at least one appearance in 57 percent of the cases.
- In 6 percent of the cases, the accused was represented by duty counsel at all appearances.
- In 11 percent of the cases, the accused was represented by a Legal Aid staff lawyer at all appearances, some of which might have included duty counsel representation.
- In 9 percent of the cases, the accused was represented by a mix of Legal Aid and private counsel.
- In 10 percent of the cases, the accused was represented by private counsel at all stages.
- In 38 percent of cases, the accused was represented by private counsel for at least one appearance.
The Court Observation captured 223 appearances in Courtroom number 1, where all matters except trials are heard (during the period in which we collected such data). In 12 percent of these appearances, the accused did not in fact "appear," and, in 5 percent of cases, the representation status of the accused was not discernible. Among the remaining cases:
- 27 percent involved an accused who was unrepresented (although slightly over half of these appearances resulted simply in an adjournment);
- 36 percent involved duty counsel;
- 21 percent involved another legal aid staff lawyer; and
- 14 percent involved a private member of the bar.
3.3.2 Self-representation by category of offence
Most interviewees suggested that, because of the coverage criteria (likelihood of imprisonment), the criminal charges most likely to be faced by unrepresented accused were summary and minor property offences (shoplifting, fraud, theft of minor services, etc.), minor assaults, domestic violence, breathalyzer refusals and impaired driving.
Figure H-3 uses the Disposed Cases sample to present estimates of the proportions of accused who were unrepresented, according to the offence category of the most serious charge in the case.
In fact, Figure H-3 supports the perceptions of those interviewed. At last appearance, a relatively high percentage (compared to an average 23 percent for all offences combined) of self-represented accused were found among those charged with impaired driving (36 percent), administration of justice (32 percent), and other federal offences (58 percent).
Accused charged with robbery (9 percent), break and enter (13 percent), common assault (11 percent), and drugs excluding simple possession (5 percent) showed the lowest rates of self-representation at last appearance.[27]
3.3.3 Self-representation by stage in process
As noted in later sections, those interviewed felt that it was important to have legal representation not only at trial, but at all stages – and especially the earliest stages – of the court process.
Many interviewees found themselves unable to venture a numeric estimate of the proportions of unrepresented accused at various stages in the process, and those who did differed widely:
- At first appearance: Estimates of unrepresented accused varied from 10 percent to 95 percent.
- At bail: Interviewees noted that duty counsel was available at the bail stage for those in custody, but some suggested that perhaps 10-to-30 percent did not avail themselves of duty counsel.
- At plea: Estimates of unrepresented accused varied from "few" to 85 percent.
- At trial: Estimates of unrepresented accused varied from "very few" to 50 percent.
Separate estimates were offered with respect to women appearing before the court. Perceptions offered included:
- At first appearance, 40 percent at most had a lawyer.
- Seventy percent of those with lawyers had lawyers provided through Legal Aid.
- At later appearances, 60 percent at most had a lawyer.
All interviewees suggested it would be preferable if Legal Aid could accept more cases. Most believed that the duty counsel function should be expanded to cover all first appearances.
Figure H-3 also shows – by offence type – the percentages of accused that were without representation at key stages in the court process, namely first appearance, bail, plea, elections and final (disposition) appearance.
Figure H-3 suggests some significant findings with respect to unrepresented accused. For example:
- It was at the earlier stages, of first appearance and bail, that accused were most likely to be unrepresented – over a third of all accused .
- At plea appearance and at final disposition, there were fewer unrepresented – only one-fifth.
- This pattern was exhibited for all offence types shown – except for offences against the administration of justice and other federal statutes.
| Most Serious Charge Category | Proportion of Disposed Cases with Unrepresented Accused at | Total Number of Cases (all accused) | ||||
|---|---|---|---|---|---|---|
| First (%) | Bail (%) | Plea (%) | Defence Election (%) | Final (%) | ||
| Homicide | *** | *** | *** | *** | *** | 4 |
| Sexual Assault | *** | *** | *** | *** | *** | 4 |
| Assaults excl. Common | 37 | 50 | 26 | 0 | 19 | 97 |
| Robbery | 0 | 0 | 0 | *** | 9 | 11 |
| Break and Enter | 17 | 23 | 17 | 20 | 13 | 24 |
| Impaired Driving | 57 | *** | 10 | *** | 36 | 14 |
| Common Assault | 31 | 41 | 12 | *** | 11 | 35 |
| Drugs excl. Simple Possession | 37 | *** | 0 | *** | 5 | 19 |
| Weapons Offences | *** | *** | *** | *** | *** | 7 |
| Thefts and Frauds | 38 | 23 | 17 | 0 | 20 | 174 |
| Simple Possession of Drugs | *** | *** | *** | *** | *** | 9 |
| Offences against Administration of Justice | 32 | 13 | 23 | *** | 32 | 66 |
| Public Order | *** | *** | *** | *** | *** | 8 |
| Miscellaneous Criminal Code | 55 | *** | 38 | *** | 27 | 11 |
| Other Federal Statutes | 42 | *** | 33 | *** | 58 | 26 |
| Total number of all accused at this appearance | 508 | 144 | 334 | 63 | 508 | 509 |
| Proportion of unrepresented accused at this appearance (all offence categories) | 37 | 35 | 16 | 6 | 23 | |
Notes
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* Excludes cases for which representation was unspecified in the file.
- *** The cell contains too few cases (i.e., less than 10) to report a percentage.
3.3.4 Socio-demographic characteristics of unrepresented accused
Most interviewees agreed that the only demographic differences between unrepresented accused and other accused lay in income, with unrepresented accused most likely to be among the working poor. First-time and relatively inexperienced offenders were more likely to be unrepresented. Many unrepresented accused functioned at low reading levels – one lawyer estimated a quarter of his clientele could not read, and others simply said "a lot" could not read well enough to assist themselves in a criminal process. Another interviewee suggested that many accused had little education and had learning disabilities. Many accused (represented or not) had a "legal literacy" problem. Yet another mentioned that Halifax had a significant refugee population, for many of whom language issues were a barrier. Accused with mental disorders were, however, if anything, more likely to be represented because of their low economic status.
With particular reference to all (including represented) women before the court, data collected by Coverdale suggest that roughly 80 percent of the women before the court were there for their first offence – "over half of first-time offences are for shoplifting (and) 82 percent of all offences by women are non-violent property offences."[28] Major factors cited by interviewees included: drugs, poverty issues and family violence. It was suggested that many would never be seen in court again.
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