Court Site Study of Adult Unrepresented Accused in the Provincial Criminal Courts (Part 2: Site Reports)
Chapter 7: St. John's, Newfoundland (continued)
7.2 Context of the court and legal aid
7.2.1 The community
St. John's, one of the oldest European settlements in North America, is the most easterly city in North America. It is the main financial and commercial centre for Newfoundland, and boasts a rich cultural heritage. However, a historical over-reliance on the now failing fisheries industry has led to economic difficulties, and a significant reduction in the population of the province in recent years. Other industry sectors include oil and gas, information technology and communications, marine technology, mining, manufacturing, and tourism. In the 2001 Census, the vast majority of the population (99 percent) of the St. John's Census Metropolitan Area (CMA) reported speaking English in the home.
The population of the city of St. John's was 99,182 in 2001. From 1996 to 2001, the population of the city decreased by 2.7 percent, a smaller decrease than for Newfoundland as a whole (4.9 percent). The population of the St. John's CMA was estimated at 173,833 in 2001, a decrease of 1.77 percent from 1996. The population density of St. John's was 222.4 per square kilometre.
Approximately 21 percent of males and 20 percent of females in the city of St. John's were in the 15-to-29 age range associated with the highest rates of crime. For the CMA, these percentages were marginally higher (24 percent of males, 22 percent of females).
In 2001 the average income for a person living in St. John's was $23,409, higher than that of the province of Newfoundland's average income of $19,710. For the CMA, the average household income in 2001 was estimated at $53,800 (provincial was $46,400), and per capita income was $20,300 (provincial was $17,000). In the province of Newfoundland in 2001, 19 percent had an income below the national average; in the CMA of St. John's, the equivalent figure was four percent.
The city's 2001 unemployment rate of 9.1 percent was significantly lower than the provincial unemployment rate of 15.7 percent. The province of Newfoundland recorded the highest unemployment rate of all provinces across Canada in 2001.
Of the population of St. John's aged 15 and over, 32.3 percent reported completing less than high school. Of those aged 25 years and over, 11.0 percent reported having less than a Grade 9 education, while 69.5 percent reported having a high school certificate or higher level of education. Females and males reported very similar levels in each education category. Overall, residents of the city reported higher levels of education than did residents of the province as a whole.
For the CMA of St. John's, there were approximately 8,538 single-parent families, 16 percent of the CMA's total 51,833 families. This was higher than the provincial rate of 13 percent.
Of 36,970 dwellings in the city of St. John's, 22,125 were owner-occupied and 14,845 (40 percent) were rented. The provincial "rented" rate was estimated at 23 percent in 2001.
Rates of violent crime in the city of St. John's decreased from 1999 to 2000 by 1.6 percent. The rate of violent crime in 2000 was 851 per 100,000 population. Property crime increased dramatically by 12.6 percent to a rate of 3,831 in 2000. Total offences against the Criminal Code increased by 9.6 percent to a rate of 6,759 per 100,000 population. The total number of Criminal Code and "other federal statutes" offences in St. John's in 2000 was 11,832.
7.2.2 The court
a. Scheduling of cases
The chart following highlights the key features of the courthouse and the case scheduling practices. In general, all cases originating in St. John's are scheduled for their first appearance in Courtroom 7. That courtroom hears only first appearances.
If the case is not disposed at the first appearance, it will be scheduled to one of the trial courts, which will hear all subsequent appearances on the case. Two possibilities exist:
- If the case is not expected to be going to trial at the next appearance, it will be scheduled to a half-hour time period, from 9:30 to 10:00 a.m., in one of three trial courts.
- If the case is expected to be going to trial at the next appearance (from either the first-appearance court or the 9:30 to 10:00 a.m. "trial court"), it will be scheduled after 10 a.m. in one of the five trial courts.
| Nine courtrooms in total |
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|---|---|---|
| One full time arraignment/first- appearance courtroom (Courtroom 7 ) |
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| Five trial courtrooms for other Criminal Matters (e.g., post-first/pre-trial appearances, preliminary hearings and trials) |
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| Special courts |
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| Circuit Courts |
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b. Special case/case-flow management concerns
The St. John's court is facing significant backlogs. Courts were booking trials four-to-six months ahead at the time of the site visit.
c. An overview of case volumes and mix of cases
Figure St.J-2 provides an overview description of the numbers of cases heard in the St. John's court in a recent 12-month period. The Figure shows that two offences – common assault (13 percent) and theft (17 percent) – made up 30 percent of the caseload of the court. Adding impaired driving cases (11 percent) and fraud cases (8 percent) would account for roughly half of the total court caseload.
| St. John's | Newfoundland | ||||
|---|---|---|---|---|---|
| Most Serious Offence | # | as % of St. John's Total | as % of Nfld | # | as % of Nfld Total |
| Total | 2,629 | 100% | 38% | 6,977 | 100% |
| Homicide | 4 | 0% | 57% | 7 | 0% |
| Attempted Murder | 4 | 0% | 100% | 4 | 0% |
| Robbery | 12 | 0% | 67% | 18 | 0% |
| Kidnapping | 0 | 0% | ___ | 0 | 0% |
| Sexual Assault | 21 | 1% | 15% | 142 | 2% |
| Sexual Abuse | 5 | 0% | 19% | 27 | 0% |
| Major Assault | 139 | 5% | 44% | 313 | 4% |
| Abduction | 1 | 0% | 100% | 1 | 0% |
| Common Assault | 344 | 13% | 34% | 1,003 | 14% |
| Break & Enter | 80 | 3% | 31% | 261 | 4% |
| Arson | 5 | 0% | 50% | 10 | 0% |
| Fraud | 202 | 8% | 57% | 356 | 5% |
| Possess Stolen Property | 55 | 2% | 41% | 133 | 2% |
| Theft | 453 | 17% | 55% | 822 | 12% |
| Property Damage/Mischief | 108 | 4% | 46% | 235 | 3% |
| Weapons | 24 | 1% | 29% | 82 | 1% |
| Administration of Justice | 191 | 7% | 48% | 399 | 6% |
| Public Order Offences | 89 | 3% | 43% | 207 | 3% |
| Morals – Sexual | 10 | 0% | 34% | 29 | 0% |
| Morals – Gaming/Betting | 1 | 0% | 100% | 1 | 0% |
| Other Criminal Code | 300 | 11% | 35% | 847 | 12% |
| Criminal Code Traffic | 32 | 1% | 34% | 95 | 1% |
| Impaired Driving | 283 | 11% | 38% | 743 | 11% |
| Traffic/Import Drugs | 51 | 2% | 50% | 102 | 1% |
| Possession Drugs | 104 | 4% | 37% | 283 | 4% |
| Other Federal Statute | 111 | 4% | 13% | 857 | 12% |
Source: Canadian Centre for Justice Statistics: Statistics Canada
In total, the St. John's court handles 38 percent of the comparable caseload for all of Newfoundland. There are also some obvious differences in the mix of cases in St. John's and the rest of the province – with St. John's having certain categories of offence more prominent in its caseload, particularly those shaded in Figure St.J-2 (Robbery, Fraud, Theft, Administration of Justice and Trafficking/Importing of Drugs). [60]
7.2.3 Legal aid
Legal aid in Newfoundland is overwhelmingly a service delivered by staff lawyers. Conflict of interest cases may be handled by a separate office of the Commission. Staff lawyers handle a workload of both criminal and civil matters, and virtually all of them have at least ten years at the bar. Their salary levels are on a par with those of Crown attorneys with similar experience. Applications for legal aid are made in person, by appointment, at the Legal Aid Commission offices, approximately a fifteen-minute walk from the courthouse building.
Commission officials indicated that the time required to process a legal aid application and assign a lawyer was three to four weeks. If the accused brought all documentation right away, a lawyer could be assigned within a few days. This was in contrast to the impressions of court personnel, who believed the delays to be considerably longer, long enough to actually drive the court schedule itself. The reasons for the differing impressions were not clear, but may have included prevarication by accused who wished to delay the process and blame it on legal aid, and often related to applicants not having the required documentation. Commission officials agreed that repeat offenders tended to "take their time applying," while first-timers often applied immediately.
Court officials also had the impression that 90 percent of refusals of legal aid assistance ultimately resulted in a grant of assistance – leading them to wonder at the value of the initial review process – while Commission officials stated that the reverse was true.
A final related concern raised was that of the cost of paying for lawyers appointed by the court (usually after an accused had been refused legal aid through the usual application process). Such appointments often involved costs that were very difficult to absorb in addition to the regular demands on the legal aid budget. However, others interviewed believed that court-appointment of a lawyer was a very rare event in St. John's.
7.2.4 Duty Counsel
Duty counsel is available to help all cases in first appearance court, and does so without first applying financial eligibility tests or coverage criteria. In this court, the Crown shares a copy of the disclosure immediately with the duty counsel in order to allow the bail or plea process to be handled expeditiously. Duty counsel normally has sufficient time during the day to talk both to Crowns and to accused who want help, holding matters down if necessary in order to have the required discussions. Of assistance in this process is that custody cases are called late in the day. If the case is uncomplicated and can be resolved relatively quickly through a guilty plea, the duty counsel will assist the accused through the plea and sentencing process. Duty counsel will also interview accused who wish to plead not guilty or ask for a postponement.
Few accused who are in custody are unwilling to wait for the day or two it will take for the duty counsel to prepare and argue for their release. Some accused at first appearance, however, do not see duty counsel, perhaps because they are seeking a delay. However, duty counsel will often stand outside first appearance court and actually announce his/her presence and availability, and will often approach people who "look" like they might have to appear in court, and offer assistance
Duty counsel also does an initial screening of cases on the basis of the seriousness criterion (likelihood of imprisonment) and advises those accused who appear to be eligible for legal aid to make an application.
The same staff lawyer had been handling duty counsel for the past year, and appeared to thrive on it. There was general agreement that duty counsel was not an assignment for which everyone was equally suited. Interviewees who spoke to the issue suggested that it was critical not to rotate staff through the duty counsel function rapidly. On certain days, the duty counsel function would be carried out by another staff lawyer, and this super-rapid rotation caused problems, including a tendency to put matters over.
Duty counsel was not provided in the trial courts – either before or after 10 a.m. In fact, a number of persons interviewed indicated that Legal Aid lawyers in trial courts for specific cases usually did not offer assistance to unrepresented accused, and judges did not tend to advise the self-represented accused that legal aid staff lawyers were there. At the same time, other persons interviewed noted that there were instances when judges would call upon a Legal Aid staff solicitor, who might be in a trial court with a client, to lend some assistance to an unrepresented accused. If time permitted, the Legal Aid solicitor would likely render assistance.
A number of those interviewed also suggested that benefits would accrue if duty counsel were available in the trial courts – especially for interim appearances between 9:30 and 10:00. In fact, accused without other representation often expected that "their lawyer" (either the duty counsel who helped them in first appearance court, or the Legal Aid lawyer who interviewed them at Legal Aid) would be there at appearances held between 9:30 and 10 a.m.
The one situation in which an accused was often provided with duty counsel assistance in the trial courts was where the accused was in custody by virtue of a warrant issued out of one of the trial courts – for a failure to appear (thereby resulting in a bail hearing in the trial court which issued the warrant). In those instances, Legal Aid would provide counsel for the bail hearing, on a duty counsel basis, as long as sufficient notice was given to arrange for counsel to be present.
7.2.5 Disclosure
The disclosure process appeared to work well, if not as quickly as some would like. First appearances usually occurred within six weeks, and although disclosure may be available within four weeks, it was reportedly not unusual to see two or three appearances before disclosure was available and considered by defence. However, the Crown shows his/her copy of the disclosure to the duty counsel in first appearance court. Police make copies of the disclosure for Crowns, and then the Crowns make a copy available for defence counsel or unrepresented accused, who must provide a written request and sign for it.
The Crowns do try to process requests for disclosure as quickly as possible and a number of reasons were offered to account for cases being remanded "for disclosure":
- The disclosure had been available from the Crown, but nobody from the defence had asked for it – or had asked only a day or two before the court appearance.
- The disclosure package may have been made available, but it was not picked up.
- Remands for disclosure may, in reality, be to give defence counsel time to read the disclosure that has been provided – or more time to discuss the disclosure with the client.
Although we did not specifically try to collect empirical data on the influence on court operations of the availability of disclosure, it is worthwhile noting that 10 percent of the requests for remand directly observed in court were "for disclosure or particulars."[61]
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