It Depends on How You Ask the Question: The True Number of Unrepresented Accused in the Ontario Court of Justice

This paper is part of a larger, multi-year project looking at representation, efficiency and outcomes in Ontario’s provincial court[1]. As outlined in an earlier Slaw piece on this project (“Using Representation Pathways to Explore Court Data”, October 2025), several parts of this research are ongoing. The paper highlights the “representation pathways” idea, which is being explored as a methodological tool and as a way of better understanding the experience of accused persons in the provincial criminal court system.

The research is being carried out using an appearance-based database from the Ontario Court of Justice (OCJ). The data set includes 17,622,670 appearances nested within 2,002,306 disposed cases covering the period from 2011 to 2022.[2] Even using the same data, different answers can be obtained to the same question depending on how the question is asked and how the data is organized.

The first step is to determine the extent to which there is a lack of legal representation. The basic data on representation is coded in terms of appearances. Based on an analysis of all 17.6 million appearances over the 12-year period, accused persons were not represented at 10.4 percent of all appearances. The data can also be analyzed in terms of final appearances. Accused persons were unrepresented at nearly the same level, 10.1 percent of final appearances. The graph below shows the percent of appearances at which accused persons were unrepresented by year.

Different Ways to View the Same Data

The analysis based on all appearances treats each appearance as an isolated event. This is not incorrect. It depends on the question one wishes to ask. This analysis answers the question about the extent of unrepresented accused as it relates to separate appearances. However, from a certain point of view it may seem somewhat artificial to treat the data in this way unless, of course, the research question is specifically framed in terms of all appearances.

Analysis based on final appearances might be a better choice. Logically, there can be only one final appearance for each disposed case. Although not technically correct, a disposed case is analogous to an individual accused. Analysis based on final appearances is closer to the experience of individuals from that perspective and may make more sense intuitively. While it is possible to link any appearance with other variables such as the outcome or the number of days to disposition associated with the disposed case in which that appearance is nested, case characteristics can be more easily conceived in terms of disposed cases (final appearances) or accused individuals. However, analysis based on final appearances ignores the fact that there can be different numbers of appearances leading to the final disposition.

Representation Pathways

Each appearance in the series leading to a disposed case can have a different form of representation: not represented, represented by duty counsel or by retained counsel. These differences may be important in terms of case outcome and court efficiency. To account for the different combinations in terms of type of representation, a new variable called representation pathways was created. The representation pathway variable was created by recoding the original appearance data into the seven categories shown below in Table 1.

This approach to examining representation provides a very different picture than analysis based on appearances. Accused persons who are not represented at any appearances make up 5.1% of all disposed cases. This is about half the percentage of appearances at which accused are unrepresented based on either all appearances or final appearances. In slightly under a quarter, 23.2% of all disposed cases[3], accused persons are not represented at some appearances but are represented at other appearances by duty counsel, retained counsel or a combination of the two. Accused persons are represented at all appearances in 71.6% of all disposed cases.

A Different Picture

Overall, the important difference in determining the extent of unrepresented accused using representation pathways compared with the analysis based on appearances is that the representation pathways analysis shows that 28.3% of accused persons are not represented at all or at some appearances (5.1 + 23.2%). This is more than twice the approximately 10% figure from the appearance-based analysis. None of the different percentages of unrepresented accused are incorrect. It depends on how you ask the question.

The representation pathways approach reflects the reality that legal assistance can take many forms, including brief advice from duty counsel, full representation, or different combinations of assistance across some or all appearances. It is also worth noting that “duty counsel” itself is not a single, uniform category of representation—it can range from brief advice at a single appearance to representation sustained across many appearances. The earlier representation pathways research found that cases represented by duty counsel at all appearances resolved efficiently, while pathways combining duty counsel with other forms of representation were among the least efficient—a reminder that the type of representation matters less than the pattern it forms across a case. The approach provides a beginning to understanding the complexities of the experience of accused persons in the criminal courts.

At the same time, it is important to acknowledge the role of human and contextual factors, such as case complexity and individual capabilities and self-efficacy, which are difficult to capture with basic court data.

More refinements may be carried out on the representation pathways approach. In terms of court efficiency or case outcomes, the percentage of accused persons not represented, represented by duty counsel or represented by retained counsel within each of the three “not represented at some” representation pathways may be important. Whether the accused person is not represented at 75% or 25% of appearances could make a difference in duration to disposition, case outcomes, reduced charges, or sentence length. Whether a refinement of the categories or a more sophisticated statistical analysis is required has to be determined through experimentation. At this point, however, the representation pathways construct appears to be a promising advance in the analysis of legal representation.

The results we are seeing so far underscore the importance and value of representation—both for systemic efficiency and, ultimately, for the experience and outcomes of people moving through the justice system.

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Ab Currie
Senior Research Fellow
Canadian Forum on Civil Justice

Trevor C. W. Farrow
Dean and Professor
Osgoode Hall Law School

Jean-Paul Bevilacqua
Director
Canadian Forum on Civil Justice

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[1] Ab Currie, Trevor CW Farrow and Lisa Moore, Using Representation Pathways to Explore Court Data, SLAW, October 3, 2025

[2] The research team is grateful to the Ontario Court of Justice and the Ontario Ministry of the Attorney General for making the data available.

[3] Calculated by combining 6.1% not represented at some appearances + represented by duty counsel at some appearances, 5.8% not represented at some appearances + represented by retained counsel at some appearances and 11.3% not represented at some appearances + represented by retained counsel at some appearances + represented by duty counsel at some appearances