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

Chapter 6: Bathurst, New Brunswick (continued)

6.3 Frequency of unrepresented accused

a. Overview of key informant perceptions on representation

In general, our key informants in Bathurst were of the view that relatively few accused go through the entire legal process without representation. In situations where accused appear without representation, they are strongly encouraged to seek legal representation by Crowns and judges.

Legal aid lawyers noted that, on occasion, they took cases in which the accused was denied legal aid, and yet was unable to afford to pay for legal representation from their own pocket, on a pro bono basis.

In the perception of one interviewee, the number of unrepresented accused appeared to be increasing. This was in part, according to this individual, because of Legal Aid New Brunswick's requirement that clients contribute. It was not always possible, or clients were not always willing to make the required contributions.

b. Overview of empirical findings on representation

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, our analysis of the data, from complete records of 252 randomly selected cases completed in late 2001 in Bathurst Provincial Court, indicates the following.

At first appearance, 53.6 percent of criminally accused adults in Bathurst Provincial Court were unrepresented. An additional 28.6 percent used the services of duty counsel, and 17.9 percent had private counsel.
At second appearance (if any), 38.2 percent of criminally accused adults in Bathurst Provincial Court were unrepresented. An additional 9.8 percent used the services of duty counsel, and 51.4 percent had private counsel.
At third appearance (if any), 31.5 percent of criminally accused adults in Bathurst Provincial Court were unrepresented. An additional 5.6 percent used the services of duty counsel, and 62.9 percent had private counsel.
At final appearance, 46.0 percent of criminally accused adults in Bathurst Provincial Court were unrepresented. An additional 11.1 percent used the services of duty counsel, and 42.5 percent had private counsel.
For at least one appearance, 45.6 percent of criminally accused adults in Bathurst Provincial Court had private counsel.
For all of their appearances, 17.1 percent of criminally accused adults in Bathurst Provincial Court had private counsel.
There was no representation for 36.9 percent of criminally accused adults in Bathurst Provincial Court at all of their appearances.
Duty counsel represented 7.5 percent of criminally accused adults in Bathurst Provincial Court at all of their appearances.

Readers should note that, throughout this report, references to "private counsel" encompass both privately retained counsel and private counsel paid through a legal aid certificate. For the purposes of this study, we were not able to make this distinction in our collection or analysis of either the disposed cases data or the court observation data.

It is evident from the foregoing section that the data from the disposed cases sample did not support the perception of many key informants that unrepresented accused were rare in Bathurst Provincial Court. This seeming contradiction is examined in more detail below.

6.3.1 Self-representation by category of offence and stage of process

Although, as noted earlier, duty counsel was available to help all accused, regardless of financial eligibility, at first appearance – the stage in the criminal process where the largest number of unrepresented accused might be found, according to our key informants, was at first appearance. Their general estimate was that approximately 50 percent of accused did not have representation at their first appearance. Further, some key informants noted that few accused consulted a lawyer prior to the day of their first appearance or arrived in court for their first appearance with a lawyer. A significant number of accused relied on duty counsel to guide them through their first appearance – however, some key informants suggested that some accused were so familiar with the process that they didn't require the assistance of the duty counsel.

There was general agreement among our key informants that it was crucial for accused persons to have representation at all stages of the criminal process. Many interviewees noted that an accused needed representation even at the first appearance, where it was important to know one's options before pleading. However, one interviewee pointed out that there was no error that could be made at the first appearance that could not be remedied subsequently.

According to our key informants, there was a tendency for the proportion of unrepresented accused to decrease as they moved through the legal process. It was reported to be extremely rare for accused to be unrepresented at trial, particularly if they were in remand. The proportion of unrepresented accused was believed to drop very sharply after first appearance.

Those denied legal aid who did not risk jail time faced a choice of pleading guilty, representing themselves at trial, or paying for legal assistance. According to some of our key informant in Bathurst, it was not uncommon for accused to plead guilty in such a situation.

There was a consensus among interviewees that the more serious the charge, the more likely the accused was to have representation. Thus, for the most part, unrepresented accused were generally perceived to be charged with less serious crimes.

At early stages of the legal process, there was a tendency on the part of some unrepresented accused to underestimate the seriousness of the charges against them. According to interviewees, these individuals tended to quickly realize how crucial it was for them to have representation. In these situations, the accused were usually able to get representation either through Legal Aid or privately.

As noted above, our key informants in Bathurst were generally of the view that there were relatively few accused who went through the entire process without representation, especially if the charges they faced were relatively serious. At this point, we return to the data from the Disposed Cases sample that indicates the proportions of accused at each appearance who were unrepresented. Figure B-1 displays this information according to the category of the most serious charge in the case.

Figure B-1. Proportion of Accused who were Unrepresented At Key Appearances, by Most Serious Charge Category, Bathurst
Most Serious Charge Category	Proportion of Unrepresented Accused at				Total Number of Cases
Most Serious Charge Category	First (%)	Plea (%)	Defence Election (%)	Final (%)	Total Number of Cases
Homicide	***	***	***	***	6
Sexual Assault	***	***	***	***	4
Assaults excl. Common	50	21	50	43	14
Robbery	***	***	***	***	4
Break and Enter	27	13	29	13	15
Impaired Driving	70	67	70	67	43
Common Assault	48	30	50	30	23
Drugs excl. Simple Possession	***	***	***	***	3
Weapons Offences	***	***	***	***	9
Thefts and Frauds	53	40	54	47	58
Simple Possession of Drugs	***	***	***	***	9
Offences against Administration of Justice	57	39	57	41	51
Public Order	92	100	92	92	13
All Offences	54	41	54	46

Notes

* Excludes cases for which representation was unspecified in the file.
*** The cell contains too few cases to report a percentage.

Figure B-1 indicates that:

Contrary to the views of some key informants, significant numbers of accused were unrepresented at first, plea, election and final appearances, regardless of the nature of the charges they faced.
Persons accused of impaired driving or public order offences were most likely to be self-represented at first and subsequent appearances.

6.3.2 Socio-demographic characteristics of unrepresented accused

Our key informants believed that, in general, unrepresented accused were likely to be working poor, meaning those who fell outside the financial eligibility criteria for legal aid. They also mentioned individuals who had received legal aid more than twice in the previous two years and were, as a result, ineligible for further coverage.

6.3.3 Other types of representation

Figure B-2 displays the representation provided by counsel of various types at each stage of the criminal process. These data indicate that:

Approximately 50 percent of accused were unrepresented at each appearance listed in Figure B-2.
The proportion of accused represented by private counsel was much higher at final appearance than at first appearance, and conversely for those assisted by duty counsel.

Figure B-2. Distribution of Representation Type By Appearance Type, Bathurst
Appearance	Represented by			Number of Cases
Appearance	Self (%)	Duty Counsel (%)	Private Counsel (%)
First appearance	54	29	18	252
Plea	41	16	42	232
Defence Election	54	28	18	249
Final Appearance	46	11	43	252