Court Site Study of Adult Unrepresented Accused in the Provincial Criminal Courts (Part 2: Site Reports)
Chapter 8: Kelowna, British Columbia
8.1 Objectives and Methodology
The Department of Justice and the Federal/Provincial/Territorial Permanent Working Group on Legal Aid engaged the research team to measure:
- The frequency with which accused persons are appearing before the court without representation – at different stages of the court process.
- The impacts of self-represented accused – on themselves, on other groups involved in the court process, and on the courts in total.
A brief overview of the full national study – covering nine court sites – was presented in Chapter 1. The methodology for the Kelowna part of the national study followed a strategy for data collection and site visits similar to that followed in the other sites.
The methodology involved data collection and site visits. Information was available on the question of unrepresented accused from three sources:
- A Disposed Cases database, acquired from JUSTIN, encompassing all 1,020 adult criminal cases concluded in Kelowna Provincial Court in 2001.
- Direct Observation of 214 appearances in first appearance and arraignment courts over six days during May and June of 2002; trials were rarely observed..
- Interviews with key informants (judges, Crowns, legal aid staff, court administrators, private bar members, local service agencies, etc.), whose anonymity was assured.
Throughout this project, we have received excellent co-operation and assistance from all those we asked to participate in the study. We also readily acknowledge the very able assistance and expertise of the Kelowna-based researcher who conducted the court observations. Our appreciation is also extended to those officials of the B.C. Ministry of the Attorney-General who provided us with the file of disposed cases from the JUSTIN court information system.
8.2 Context of the court and legal aid
One of the major conclusions – supported by the data from all sites – was that data on the extent of legal representation in a particular court cannot be interpreted out of the context of (at least):
- The type of community served (including the nature of accused persons brought before the court).
- The resources and management and operations practices in place in the courts.
- Legal aid policies and practices.
- The duty counsel system in place.
- The policies and practices of all of the other key participants in the court process – including the judiciary, the Crown attorneys, the police, court administrators, the private bar and other supporting agencies.
All of these factors, policies and practices can have significant mitigating or exacerbating influences on the impacts of self-representation. This contextual information is thus essential to understanding the problems and potential solutions to challenges related to the unrepresented accused.
This section will specifically address the first four of the above areas. Information on the fifth is contained throughout the report.
8.2.1 The community
The largest city in the Okanagan Valley of British Columbia, Kelowna is situated on the eastern shore of Okanagan Lake. Kelowna is the main marketing and distribution centre of the Okanagan Valley, with a flourishing tree-fruit industry, and a growing light industrial sector. Also known for forestry and the manufacture of boats, plastics, fibre-glass, body armour and oil field equipment, Kelowna has a growing high technology sector that includes aerospace development and service. Tourism is also a major contributor to the regional economy.
In the 2001 Census, the city of Kelowna reported a population of 96,288, a 7.7 percent increase from the previous Census in 1996. The population of Kelowna included comparatively high proportions of residents over the age of 65 (16 percent of males and 19 percent of females). Approximately 20 percent of males and 19 percent of females in Kelowna were in the 15-to-29 age range associated with the highest rates of crime. The population of the Census agglomeration of Kelowna in 2001 was estimated at 156,701. The population density was 455.9 per square kilometre in 2001. Close to 96 percent of residents reported that the language spoken in their home was English.
The average income of Kelowna was reported to be $24,187. The average income for Kelowna was somewhat lower than the provincial average. The estimated average employment income in the Census agglomeration area of Kelowna was $48,100, and the per capita income was $19,300, compared with $53,600 and $21,200 respectively for the province.
In 2001, Kelowna's unemployment rate was 6.6 percent, somewhat lower than the provincial unemployment rate of 8.7 percent.
Of the population aged 25 years and over, the majority (68.5 percent) had a high school certificate or higher; 46.1 percent had a trade or non-university certificate or higher level of education, and 13.4 percent had completed university. Just over nine per cent had less than a Grade 9 education. Compared to the province of British Columbia, Kelowna had slightly more people over the age of 25 with lower levels of education. Women were more likely then men to report less than Grade 9 education, and men were more likely than women to report a high school certificate or higher as their level of education.
The number of single-parent families in the Census agglomeration area of Kelowna was estimated at 5,986, or 13 percent of the reported 46,307 families. This is comparable to the provincial rate of 13.5 percent.
Of the estimated 62,977 occupied private dwelling in the Census agglomeration area of Kelowna in 2001, 73 percent were owner-occupied and 27 percent were rented; the proportion of owner-occupied dwellings was higher than that noted provincially (65 percent).
For the city of Kelowna, the total number of reported property crimes decreased from 8,672 in 1999 to 8,231 in 2000. The number of reported violent crimes also decreased, from 1,561 in 1999 to 1,492 in 2000. Overall, the total number of reported Criminal Code offences decreased from 15,510 in 1999 to 14,720 in 2000.
8.2.2 The court
Kelowna has a consolidated courthouse that handles Provincial Court and B.C. Supreme Court civil, criminal and family matters. The courtrooms that hear criminal matters are described in the following chart. Twelve courtrooms are available for criminal cases. Of these, six are regularly used for Provincial Court cases.
| First appearance court |
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|---|---|---|
| Arraignment court |
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| Trial courts |
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| No circuit courts | ||
| No special courts | ||
| Bail hearings by video from: |
|
In 2001, 1,020 adult criminal cases were concluded in Kelowna Provincial Court. Breakdowns of these cases by a range of characteristics are presented in later sections of this chapter.
On a related point, the Criminal Caseflow Management (CCFM) rules in B.C. require defendants to make appearances at specific stages between first appearance and trial. The courts go out of their way to ensure that accused know their legal rights, including that of speaking to counsel. They are typically encouraged to speak to counsel, given weeks to do so, and given multiple opportunities. All of these measures encourage unrepresented accused to get counsel and discourage rapid settling of cases. One interviewee saw an impact of the CCFM rules only on cases where large amounts of court time were expected to be required.
8.2.3 Legal aid
Criminal legal aid in British Columbia is administered by the B.C. Legal Services Society (BCLSS). Most legal aid services in British Columbia are provided by the private bar "on referral" from the BCLSS. However, some criminal legal aid services in some locations, including Kelowna, have been provided by staff lawyers.
Recently, the complement of BCLSS staff lawyers providing representation in adult criminal matters has been reduced across the province. In Kelowna, one staff lawyer has been providing a mix of duty counsel and representation to eligible adults facing criminal charges. This staff lawyer has covered approximately 25 percent of duty counsel hours, with the remainder covered by several members of the private bar paid on a per diem basis. Representation of persons eligible for criminal legal aid is mostly provided by members of the private bar, although the staff lawyer also handles a portion of these cases. Payment for services provided by the private bar is made in accordance with the legal aid tariff, or schedule of fees.
In criminal matters, financially eligible adults may be covered by legal aid if, on conviction, they are likely to go to jail, might lose their means of earning a livelihood, or could be deported from Canada. Special accommodation is provided for persons with mental or emotional disabilities that prevent them from defending themselves.
Applications for legal aid are taken at the BCLSS office, which is located several blocks from the courthouse. Approval of applications usually takes two weeks or so.
Most of the legal aid cases handled by the private bar in Kelowna were described as taken by a core of 10-to-12 lawyers. Very few of the informants interviewed in Kelowna believed that an accused with a BCLSS referral was likely to experience any real difficulty finding a private lawyer willing to take the case (despite the widely-expressed dissatisfaction with the legal aid tariff). Complex cases may be the exception here, as the tariff pays for representation services on a block fee basis (not hourly), meaning that the private bar may be reluctant to accept such referrals.
With respect to bail hearings, the situation in Kelowna is as follows: If an accused is arrested on a weekday, he or she will typically appear before a judge the same day. If arrested overnight, he or she will appear before a judge the next day, at which point duty counsel is available to assist. If the accused is arrested on a weekend or holiday, a "stipendiary JP" will go to the RCMP detachment where the person is being held. At this point, duty counsel may be available by telephone. Elsewhere in B.C., a 24-hour call centre, the "JP Service Centre," conducts bail hearings by conference call. Kelowna will convert to use of this call centre as local stipendiary JPs retire.
8.2.4 Duty counsel
Duty counsel services are available in Kelowna to any accused who request them. No eligibility assessment is conducted for these services. They are available both to accused in custody and to those not in custody. Duty counsel attend most days at the remand facility, and at first appearance court. Duty counsel do not provide representation at trials. For this, an accused must be assessed for eligibility for a legal aid referral.
Duty counsel services in Kelowna are provided by the BCLSS staff lawyer, and the private bar on a per diem basis, with the staff lawyer covering about 25 percent of the total hours available (mostly for in-custody accused). An additional four hours of attendance at first appearance court by private lawyers is covered by the per diem arrangement.
Pay levels of staff duty counsel used to be about the same as provincial Crowns, but may now be lower, depending on seniority levels (approximately $80,000 vs. $95,000).
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