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

Chapter 6: Bathurst, New Brunswick (continued)

6.5 Overall Conclusions

6.5.1 Key Overall Findings

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

With respect to frequency of self-representation

With respect to impact on the accused

With respect to impact on the court

6.5.2 General Reasons for Current Unrepresented Accused Situation

The existence of unrepresented accused in Bathurst was attributed by the majority of interviewees to inadequate funding for legal aid. The current budget has forced Legal Aid New Brunswick to tighten the criteria for eligibility for legal aid, thereby denying legal aid to some accused. In general, interviewees feel that the criteria are too strict, particularly the limit on the number of certificates that may be granted within a two-year period and the requirement that there be a risk of jail time.

Despite concern over the number of unrepresented accused, there is a sense that the problem is not more severe as a result of:

Most interviewees believe that the legal aid system in New Brunswick is not functioning as well as it should be. This is generally blamed on the lack of adequate funding. The key problems cited by interviewees include:

6.5.3 Suggested Solutions

Staff system or combination of staff and certificate.  Most interviewees believe that either a staff system or a combination of staff and certificate would decrease the number of unrepresented accused. A few interviewees disagreed, believing that a staff system would bureaucratize the legal system. Few interviewees support a purely staff system because it is felt that this would eliminate, or at least sharply curtail, the extent to which accused are able to exercise choice of counsel.

Increasing funding to the legal aid system.  This would allow for more flexibility in the eligibility criteria for legal aid, and it would allow for higher rates to be paid to legal aid lawyers, thereby increasing the number and quality of lawyers accepting legal aid cases.

Additional time with duty counsel for unrepresented accused.  In situations where an accused is not eligible for legal aid, a system should be set up whereby these individuals are provided with an hour or two of time with duty counsel to review their case and discuss options. This approach was implemented in family law, where the $43 per hour fee was charged to the courthouse. This system is believed to have worked well for the clients, and saved the courthouse money by reducing the number of delays and adjournments.

Increasing awareness among accused of the availability of duty counsel.  Some key informants believe that not all unrepresented accused are even aware of the existence or availability of duty counsel. Efforts to increase the "visibility" of duty counsel might be of assistance to some of these accused, particularly in the larger courts.