Representation at Trial

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2020. (Rev. # 92804)

General Principles

An accused person has the right to represent him or herself. They may also be entitled to representation by an agent or counsel, depending on the circumstances.

Self-Representation

See also: Right to Self-Representation

Representation by Agent

With some limitations the accused on a summary conviction matter may be represented by a non-lawyer referred to as an "agent".

An agent may appear on certain provincial offence matters.[1] However, inadequacies of the agent's abilities will not necessarily be grounds of an appeal.[2]

An agent may not appear on hybrid criminal matters.[3]

An agent generally may not represent an accused on a summary conviction appeal.[4]

These prohibitions exist under common law and under the provincial law society act. The primary reason is to protect the administration of justice and the right to a fair trial by ensuring competent representation.[5] Certain provinces, such as British Columbia[6] and Alberta[7], allow limited exception to this rule on the discretion of the judge.

Criminal Code Limits on Agents

Section 802.1 limits to use of agents in summary trials for penalties greater than 6 months.[8]

Limitation on the use of agents

802.1 Despite subsections 800(2) [organization appearance and ex parte trial option] and 802(2) [summary offences – right to examine witnesses], a defendant may not appear or examine or cross-examine witnesses by agent if he or she is liable, on summary conviction, to imprisonment for a term of more than six months, unless

(a) the defendant is an organization;
(b) the defendant is appearing to request an adjournment of the proceedings; or
(c) the agent is authorized to do so under a program approved — or criteria established — by the lieutenant governor in council of the province.

2002, c. 13, s. 79; 2019, c. 25, s. 317.1.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 802.1


Defined terms: "organization"

The purpose of s. 802.1 is to provide limited protections to an accused by balancing their need for assistance with the need for an acceptable level of competence.[9]

Section 800(2) permits a defendant to "appear personally or by counsel or agent" with some limitations. Section 802(2) permits a defendant to "examine and cross-examine witnesses personally or by counsel or agent.".

The penalty limitation in s. 802.1 applies to the maximum penalty and not the particular penalty for the case.[10]

An accused may use an agent to represent them under s. 802.1 on multiple charges where each offence has a maximum penalty of no more than 6 months. This rule applies per charge and not in sum total.[11]

A licensed and insured Ontario paralegal with instructions from legal counsel may appear as "counsel" within the meaning of a s. 650.01 designation for the purpose of a routine remand of an indictable offence.[12] The same authority exists for articling students who may appear in provincial court on routine bail matters.[13]

Discretion to Refuse an Agent

The trial judge retains discretion to refuse an agent from representing an accused person in a summary conviction matter on the basis that it would "damage the fairness of those proceedings, impair the ability of the tribunal to perform its function or otherwise undermine the integrity of the process."[14] It may also be refused any time that it is "necessary ... to protect the proper administration of justice."[15] This will include instances where the agent is facing criminal charges involving interference with the administration of justice or where their background "demonstrates pervasive dishonesty or blatant disrespect for the law."[16]

  1. R v Lawrie, 1987 CanLII 4173 (ON CA), [1987] OJ 225, 59 OR (2d)161 (Ont CA), per Blair JA
    R v Gardener, 1998 ABQB 190 (CanLII), 224 AR 248, per Lee J
  2. R v Kane, [1998] OJ 3595 (Ont.CJ Gen.Div.)(*no CanLII links)
  3. R v Wilson, [1998] OJ 5190 (Ont.CJ)(*no CanLII links) , at para 28
  4. See R v Duggan, 1976 CanLII 1392 (ON CA), 31 CCC (2d) 167, per MacKinnon JA, at paras 9, 11
    R v Stagg, 2011 MBQB 294 (CanLII), 279 Man R (2d) 225, per Oliphant J
    Aasland v Mirecki, [2002] MJ No 502, 37 C.P.C. (5th) 230(*no CanLII links)
  5. R v Romanowicz, 1999 CanLII 1315 (ON CA), 138 CCC (3d) 225, per curiam, at para 74
  6. R v Dick, 2002 BCCA 27 (CanLII), 163 BCAC 62, per curiam
  7. R v Crooks, 2011 ABCA 239 (CanLII), 527 WAC 364, per Berger JA, at paras 8 to 10
  8. R v Spiry, 2005 ABPC 309 (CanLII), 389 AR 108, per Fradsham J, at para 29
  9. Spiry, ibid., at para 25
  10. R v Frick, 2010 ABPC 280 (CanLII), per Wheatley J
  11. R v May, 2008 ABPC 312 (CanLII), per LeGrandeur J
  12. R v GYL, 2009 CanLII 38516 (ON SC), 246 CCC (3d) 112, per McCombs J
  13. R v Golyanik, 2003 CanLII 64228 (ONSC), 173 CCC (3d) 307, per Trafford J
  14. R v Romanowicz, 1999 CanLII 1315 (ON CA), 138 CCC (3d) 225, per curiam, at para 61
  15. Romanowicz, ibid., at para 73
  16. Romanowicz, ibid., at para 74

Representation by Counsel

See also: Jurisdiction_of_the_Courts#Designations_of_Counsel

An accused need not necessarily be present at court and can sometimes have their counsel appear on their behalf. Where the offence is a summary offence (or a hybrid offence proceeded by summary conviction) the counsel can act as agent on the accused's behalf. Where the offence an indictable offence, the counsel may appear on the accused's behalf where the counsel has filed a "designation of counsel" pursuant to s. 650.01.[1]

A designation of counsel cannot permit the accused to be absent from the trial proper where oval evidence is being heard, where a jury is being selected, or where an application for habeas corpus is being made.[2]

Representation by Articling Clerk

Articling clerks can only conduct trials "in association with a lawyer."[1]

Under the rules of the legal profession, am articling clerk is generally not treated as an agent of the lawyer. They are permitted to do certain limited lawyer duties while under the direct supervision of the supervising lawyer.[2]

  1. Power v Crowe, [1983] NSJ 28; 59 NSR (2d) 312 (NSCo.Ct.)(*no CanLII links) - child custody trial ran by articling clerk. Client didn't know that the clerk was not a lawyer.
  2. Wawanesa Insurance Co. v Mann, 2001 PESCTD 59 (PEISC Tri.Div.), 612 APR 37, per DesRoches J

Withdraw by Counsel

An accused has a right to defend himself (s. 651(2)) and so cannot be forced to retain or maintain counsel. The accused has a right to terminate representation by a lawyer at any time, including during trial. [1]

Counsel may not withdraw without leave of the court. Permission to withdraw will be granted where the interests of the lawyer and client are irreconcilable. Once the lawyer has withdrawn they are under no obligation to provide assistance to the accused by way of legal advice or counselling.

Where counsel is seeking to withdraw as counsel due to non-payment of the retainer. The court has discretion to refuse the request are require counsel to complete the matter.[2]

  1. R v Spataro, 1972 CanLII 25 (SCC), [1974] SCR 253, per Judson J
  2. R v Cunningham, 2010 SCC 10 (CanLII), [2010] 1 SCR 331, per Rothstein J

Discharging Counsel

The accused has an unfettered right to discharge his counsel at any time for any reason. The Court has not authority to interfere with this decision or force an unwilling accused to continue to be represented by the discharged counsel.[1]

  1. R v Cunningham, 2010 SCC 10 (CanLII), [2010] 1 SCR 331, per Rothstein J, at para 9

Removal of Counsel

The trial judge has inherent jurisdiction to remove counsel from a proceedings due to misconduct.[1]

The test to remove counsel is determined on an objective standard, asking whether "a fair-minded reasonably informed member of the public would conclude that the proper administration of justice require[s] the removal of the solicitor."[2]

  1. R v Faulkner, 2013 ONSC 1824 (CanLII), per Code J, at para 8
  2. Faulkner, ibid., at para 10

Court Appointed Counsel

Amicus Curae

Competency of Counsel

See: Ineffective Counsel

See Also