Court Site Study of Adult Unrepresented Accused in the Provincial Criminal Courts (Part 2: Site Reports)

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Chapter 5: Edmonton, Alberta (continued)

5.5 Overall conclusions

5.5.1 Key overall findings

Our key findings with respect to the key questions raised by the study include:

With respect to frequency of self-representation

• There is a significant number of accused who proceed through key parts of the criminal court process without the benefit of legal representation.

With respect to impact on the accused

• Interviews with key officials strongly suggest that the unrepresented accused (especially those with little prior experience in the court system) are less likely to be aware of the legal remedies available to them at key stages in the process – and are therefore unlikely to understand many key decisions and events in the process.
• Accused represented by private counsel enter guilty pleas less often than do accused who either represent themselves or are assisted by duty counsel.
• Rates of conviction are lower for accused who represent themselves, or are represented by private counsel, than for accused assisted by duty counsel.
• Accused who represent themselves are less likely to receive custodial sentences than are accused who are assisted by duty counsel or represented by private counsel
• The evidence is insufficient to conclude whether or not self-represented accused are more likely to be convicted or to receive harsher sentences as a result of their lack of legal representation. Nevertheless, a significant number of unrepresented accused suffer serious penalties or deprivations of liberty as a result of their court case. Some 53 percent receive a criminal record and a smaller, but a still significant number (in the order of 27 percent) receive custodial sentences.

With respect to impact on the court

• Many judges, as well as other court officials, respond to the presence of unrepresented accused with efforts to reduce the impact on accused persons of their lack of representation. Some such efforts may appear to threaten the impartiality of the judicial role.
• Self-represented accused and those assisted by duty counsel make fewer court appearances than do accused represented by private counsel.
• Cases where the accused are assisted by duty counsel are of shorter overall duration than are cases involving self-represented accused or accused represented by private counsel (which typically run the longest).
• Individual appearances by self-represented accused are typically somewhat shorter in duration than are appearances for accused assisted by duty counsel or private counsel.

5.5.2 General reasons for the current situation regarding unrepresented accused

Reluctance on the part of the private bar to accept legal aid certificates is not seen as a major contributor to the number of adult accused appearing without counsel in Edmonton Provincial Court. The exception to this may be complex cases that the private bar may decline to accept, given the current tariff. (Some of these cases would result in court-appointed counsel.) Such cases may be seen as inadequately compensated under the legal aid tariff. At a more general level, the private bar sees the time allowances under the tariff as very limited, meaning that the services they are able to provide to legal aid clients are minimal at best.

Rather, the main cause is seen as the limited eligibility criteria for legal aid and the perception held by working poor that they cannot afford to hire private counsel. Other comments were:

• Bail hearings outside of normal business hours (M-F, 9-5) take place at the Edmonton Hearing Office (EHO). At the EHO, accused are either assisted by private counsel or are on their own. Duty counsel do not attend the EHO.
• Duty counsel in Edmonton do not handle trials. One member of the private bar noted that the coverage of duty counsel was limited. They do not cover diversion, plea negotiations, or pre-trial discussions with the Crown. Some concern was also expressed that some accused may plead guilty "too early" with duty counsel.
• Some Aboriginal accused may plead guilty, even when they are not, simply to "get it over with."
• Some accused whose facility in English is weak (but not non-existent) may be "lost" during their appearances, without obviously appearing to be so.
• Some accused may not recognize the seriousness of the consequences of conviction.

5.5.3 Solutions suggested by key informants

Among the solutions offered by individual interviewees were the following (not suggested by or agreed to by all).

• Use mediation and pre-trials more with unrepresented accused.
• Increase scope of duties of duty counsel to include reviewing disclosure with unrepresented accused, a greater presence in federal docket court, and a defined role in early resolution process. Duty counsel, themselves, do not favour a broader role for duty counsel at trials.
• Broaden eligibility for criminal legal aid.
• Have Crown inform unrepresented accused if they will be seeking custodial sentences, so that they can better gauge both their need for counsel and their potential eligibility for legal aid.
• Provide a duty counsel "rover" to assist at sentencing of unrepresented accused, or if unrepresented accused arrives on trial date with no lawyer, after saying s/he had one coming.
• More case management so that cases stay with the judges who first hear them – so reducing opportunities for stalling. Also, if a judge knows that a case is coming back, there may be more incentive to complete the case expeditiously.
• Raise the legal aid tariff.
• Implement a public defender system similar to the one currently in place for young offenders.
• Expand legal aid coverage to include summary offences.
• Expand diversion options.
• Distribute information packages on legal aid, trial process, and consequences of conviction to all accused, along with their appearance notices.
• Have Crowns give advanced notice of elections (for hybrid offences), so that accused would know better whether their charge is covered by legal aid.
• Improve access to disclosure packages. It currently takes 10-to-14 days to get disclosure package vs. approximately two weeks between first and second appearance dates.

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