Chapter 8: Kelowna, British Columbia - Overall conclusions - Court Site Study of Adult Unrepresented Accused in the Provincial Criminal Courts (Part 2: Site Reports)

Chapter 8: Kelowna, British Columbia (continued)

8.5 Overall conclusions

8.5.1 Key overall findings

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

With respect to frequency of self-representation

With respect to impact on the accused

With respect to impact on the court

8.5.2 General reasons for the current situation regarding unrepresented accused

There was general agreement among our key informants that most unrepresented accused in Kelowna were individuals who applied for legal aid, but were refused for either financial or coverage reasons, and who found private counsel to be too costly. In this regard, several interviewees noted that the financial eligibility cutoff was very low.

Many of our interviewees in Kelowna commented on the (then-) recent and forthcoming reductions in legal aid services.  In particular, the availability of duty counsel was described by some as "inadequate."  Whereas there used to be two duty counsel (one for accused in custody, and another for accused not in custody), plus the staff "public defender," there was no longer a full-time staff lawyer position providing representation (as opposed to part-time duty counsel). Even with the previously higher resource level, the service provided by duty counsel was described by some as "rudimentary," and it has become more strained since the cuts were introduced.

Duty counsel coverage was not complete across all days of the week, and was limited to four hours a day (for per diem services). The use of several different lawyers to cover duty counsel was seen as militating against service continuity. Duty counsel were seen as being less available than they were in the past to assist in arraignment court with guilty pleas. The valuable capacity of duty counsel to meet with accused not in custody, to discuss diversion and assist with guilty pleas, was being stretched. Some saw duty counsel as doing little more than "quicky" interviews with accused, scanning their files, and (perhaps) disposing of some cases inappropriately. Finally, some per diem duty counsel days were being taken by out-of-town counsel, who, by nature of that fact, were not routinely available in Kelowna.

On the positive side, the time available to duty counsel to meet before court with accused in custody was described as adequate. As well, duty counsel were generally able to speak to the Crown about accused in custody before their bail hearings.

While the quality of the representation provided by the former BCLSS "public defender" was described as being very high, there was less comfort with the services provided by the private bar on referral. To some considerable degree, these concerns arose from the view that the tariff was inadequate, especially for legal aid clients (who might be relatively demanding) and for more complex cases. One interviewee believed that some successful applicants for legal aid were not able to find a private lawyer willing to take their referral (due to the block fees) if the case was likely to be time-consuming.

Some interviewees saw the criminal legal aid bar as increasingly composed of the more junior and inexperienced lawyers. This was attributed to the perception that fewer and fewer lawyers were taking referrals, and that fewer and fewer lawyers were practising criminal law.

8.5.3 Solutions suggested by our key informants

Our key informants in Kelowna offered the following suggestions for reducing the numbers of unrepresented accused. It should be noted that reluctance on the part of the private bar to take legal aid referrals (complex cases excepted) was not generally seen as a major problem in Kelowna.