Representation at Trial

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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

Representation by counsel is not necessary to have a fair trial.[1] An accused person may always chose to represent him or herself. However, individuals who represent themselves are not entitled to legal advice and strategy advice from the judge.[2]

The trial judge has an obligation to ensure that a self-represented individual has a fair trial. This includes assisting in the conduct of the defence to ensure that the defence is effectively brought out.[3]

The amount of assistance to provide is a matter of the court's discretion. The judge does not need to become the accused's advocate, but must provide a "minimum level of assistance" to ensure a fair trial. [4]

Conducting a fair trial with a self-represented accused requires a "significant degree of instruction and vigilance." This will generally require that the judge explain the course which the trial is to take, including:[5]

  1. the arraignment,
  2. the calling of crown witnesses,
  3. the right to cross examine witnesses,
  4. the right to object to irrelevant evidence
  5. the right to call witnesses,
  6. the right and associated risks with the decision to testify
  7. the right to make closing arguments

The trial judge must help the self-represented accused "in such a way that his defence, or any defence the proceedings may disclose, is brought out to the jury with its full force and effect.".[6]

Fairness of Trial
A person who does not receive a fair trial due to representing him or herself where counsel was available will not normally be given any remedy.[7]

  1. R v Rain 1998 ABCA 315 (CanLII), (1998), 130 CCC (3d) 167 at 182 ("Representation by a lawyer is not a prerequisite for a fair trial. A person is entitled to represent himself or herself and when he or she does so, there are other means which are intended to protect the right to a fair trial, the foremost being the duty of every trial judge to ensure that all persons receive a fair trial.")
  2. R v Gendreau, 2011 ABCA 256 (CanLII) at para 28
  3. R v Moghaddam, 2006 BCCA 136 (CanLII) at 35
  4. R v Tran, 2001 CanLII 5555 (ON CA), [2001] O.R. (3d) 161 at para 31
    R v Moreno-Baches, 2002 CanLII 3007 (ON SC), [2002] O.J. No. 4480 per Juriansz J. at para 6
  5. Tran at 33
  6. R v Darlyn (1946) 88 CCC 269 (BCCA)(*no link) by Mr. Justice O’Halloran at p.3
  7. R v Crichton, 2015 BCCA 138 (CanLII) at para 23 per Bennett ("if a person does not receive a fair trial because he or she chose to represent him or herself, even when counsel was available, then the fault lies with the accused and no remedy is available")

Representation by 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.

Limitation on the use of agents
802.1 Despite subsections 800(2) and 802(2), 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 the defendant is a corporation or the agent is authorized to do so under a program approved by the lieutenant governor in council of the province.
2002, c. 13, s. 79.


CCC

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.[8]

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.[9]

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.[10] The same authority exists for articling students who may appear in provincial court on routine bail matters.[11]

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".[12] It may also be refused any time that it is "necessary ... to protect the proper administration of justice".[13] 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".[14]

  1. R v Lawrie, 1987 CanLII 4173 (ON CA), [1987] OJ 225, 59 OR (2d)161 (Ont.CA)
    R v Gardener, 1998 ABQB 190
  2. R v Kane, [1998] OJ 3595 (Ont.CJ Gen.Div.)(*no link)
  3. R v Wilson, [1998] OJ 5190 (Ont.CJ)(*no link) at para 28
  4. See R v Duggan, [1976] O.J. No. 418 (QL), 31 CCC (2d) 167 (ONCA)(*no link) at paras 9, 11
    R v Stagg, 2011 MBQB 294 (CanLII)
    Aasland v Mirecki, [2002] M.J. No. 502, 37 C.P.C. (5th) 230(*no link)
  5. R v Romanowicz, 1999 CanLII 1315 (ON CA), (1999), 138 CCC (3d) 225 at para 74
  6. R v Dick, 2002 BCCA 27 (CanLII)
  7. R v Crooks, 2011 ABCA 239 (CanLII) at paras 8-10
  8. R v Frick, 2010 ABPC 280 (CanLII)
  9. R v May, 2008 ABPC 312 (CanLII)
  10. R v G.Y.L., 2009 CanLII 38516 (ON SC)
  11. R v Golyanik, 2003 CanLII 64228 (ON SC), (2003), 173 CCC (3d0 307 (O.S.C.J.) per Trafford J.
  12. R v Romanowicz, 1999 CanLII 1315 (ON CA), (1999), 138 CCC (3d) 225 at para 61
  13. Romanowicz, ibid. at para 73
  14. 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 link) - 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 (P.E.I.S.C.Tri.Div.)

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 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
  2. R v Cunningham, 2010 SCC 10 (CanLII), [2010] 1 SCR 331

Discharging Counsel

The accused has an unfettered right to 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, 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) at para 8
  2. Faulkner at para 10

Court Appointed Counsel

State-funded Counsel ("Rowbotham" applications)

There is no constitutional right to state-funded trial counsel.[1] However, the right to a fair trial under s. 7 and 11(d) of the Charter enables the accused to apply for state-funded counsel in certain circumstances.[2]

Requirements for State-funded Counsel
The central issue is "whether the accused can receive a fair trial".[3]

In order for the court to grant an order requiring the attorney general to pay for counsel of an accused, the applicant must prove on a balance of probabilities:[4]

  1. that he is ineligible for, or has been refused Legal Aid and has exhausted all available appeals;
  2. that he is indigent and has no other means to retain counsel; and,
  3. that counsel is essential to his right to a fair trial.

Appointment of counsel should not limited to "exceptional cases".[5]

Conduct of Accused as a Factor
The right to counsel requires that the accused be "acting in good faith", sincerely wanting legal representation and has been diligent in attempting ot retain counsel. It should not be used a tool of delay.[6] Whether the accused acted in good faith or attempted delay proceedings is a finding of fact and given considerable deference.[7]

An accused is the "author of his own misfortune" where he has "forfeited his right to counsel" by his own conduct.[8]

The safeguards for the represented or self-represented accused "cannot be allowed to give rise to a right ...to disrupt the orderly process of a trial."[9]

Reasons for Rejection by Legal Aid
When a person is rejected by legal aid, the court is not to do a review of the reasons for doing so. It largely does not matter why legal aid was refused.[10]

However, refusal for something the accused "has done or failed to do" is important. The applicant must establish that rejection was not due to their non-cooperation or honesty with legal aid in getting qualified.[11]

Financial Means
The case law suggests the applicant must demonstrate financial evidence that details:[12]

  1. extraordinary financial circumstances;
  2. attempts to obtain funds to retain counsel;
  3. prudence with expenses and prioritization of payment of his legal fees;
  4. efforts to save for the cost of counsel and to raise funds by earning additional income;
  5. he has made all reasonable effort to use his assets to raise funds, for example by obtaining loans;
  6. whether he is in a position to pay some of the costs of counsel;
  7. the income and assets of his spouse and family.

It is not unusual for funding to be denied where the applicant was employed or had assets that could be sold.[13]

A lack of financial prudence may disentitle the accused from funding.[14]

Fair Trial
The right to fair trial may be affected where the case is complex.[15]

Those offences that are less serious as they attract lesser penalties will more likely be compelled to proceed to trial unrepresented.[16]

Limited Retainer
It is possible for the court to order a limited retainer for only part of a trial to prevent an unfair trial.[17]

Stay of Proceedings
The court has a limited authority to grant a conditional stay of proceedings where the accused cannot afford counsel and so cannot receive a fair trial without counsel.[18]

Where a provincial court is faced with a person who cannot have a fair trial without representation, it cannot order the province to fund his defence. Rather the only remedy available to the provincial court is a conditional stay of proceedings.[19]

  1. R v Ewing, (1973), 18 CCC (2d) 356 (BCCA)(*no link)
    R v Rowbotham et al. 1988 CanLII 147 (ON CA), (1988), 25 O.A.C. 321; 41 CCC (3d) 1(CA)
    R v Rockwood, 1989 CanLII 197 (NS CA), (1989), 91 N.S.R. (2d) 305 (CA)
  2. R v Dow, 2009 MBCA 101 (CanLII) at para 25
  3. R v Drury (L.W.) et al., 2000 MBCA 100 (CanLII) at para 23
    R v Dow at para 26
  4. R v Baksh, 2013 ONCJ 57 (CanLII) at para 4
    See R v Rowbotham, 1988 CanLII 147 (ON CA), [1988] O.J. No. 271 (Ont. C.A.)
    R v Montpellier, 2002 CanLII 34635 (ON SC), [2002] O.J. No. 4279 at paras 5-7
  5. R v Rushlow, at para 19 to 21
    Dow at para 28
  6. Dow, supra at para 16
  7. Dow, supra at para 21
  8. Dow at para 17
    R v Bitternose, 2009 SKCA 54 (CanLII) at para 29
  9. R v Howell, 1995 CanLII 4282 (NS CA), (1995), 146 N.S.R. (2d) 1 (C.A.), aff'd at 1996 CanLII 145 (SCC), [1996] 3 SCR 604, per Chipman J.A. at para 55 [T]he many safeguards built into the criminal justice system for an accused, particularly an unrepresented one, cannot be allowed to give rise to a right in an accused person to disrupt the orderly process of a trial"
  10. Dow, supra at para 23
    R v Peterman, 2004 CanLII 39041 (ONCA) at para 22 ("when a court makes a Rowbotham order, it is not conducting some kind of judicial review of decisions made by legal aid authorities. Rather, it is fulfilling its independent obligation to ensure that the accused receives a fair trial")
  11. R v Plange, 2017 ONSC 134 (CanLII) at para 8
    R. v. Montpellier, 2002 CanLII 34635 (ON SC), [2002] O.J. No. 4279 (ON SC), per Gordon J, at para. 34
  12. R v Malik, 2003 BCSC 1439 (CanLII) at para 23 R v Rushlow, 2009 ONCA 461 (CanLII), 66 C.R. (6th) 245 at para 20
  13. e.g. R v Darby, 2001 BCSC 1868 (CanLII)
  14. R v Crichton, 2013 BCSC 416 (CanLII) at para 41
  15. R v Moodie, 2016 ONSC 3469 (CanLII) - Stay granted on drug trafficking trial with complex issues including severance, co-conspirator's exception, possible challenge for cause.
    R v Rushlow, 2009 ONCA 461 (CanLII) at para 24 per Rosenberg JA.
  16. Moodie, supra at para 8
    Rushlow, supra
  17. Dow, supra at paras 32 to 37
  18. R v Rowbotham (1988), 1988 CanLII 147 (ON CA), 41 CCC (3d) 1 (Ont. C.A.)
  19. e.g. R v Dobson, 2016 NBCA 18 (CanLII)

Cross-Examination

A self-represented accused will not be permitted to cross-examine a witness in a number of situations, including trials with witnesses under 18, trials for criminal harassment, or otherwise where requested. In such cases, the court may be appoint counsel to conduct the cross-examination.

For details see Cross-Examinations#Cross-Examination_by_Self-Represented_Accused

Appeals

Legal assistance for appellant
684. (1) A court of appeal or a judge of that court may, at any time, assign counsel to act on behalf of an accused who is a party to an appeal or to proceedings preliminary or incidental to an appeal where, in the opinion of the court or judge, it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance.
Counsel fees and disbursements
(2) Where counsel is assigned pursuant to subsection (1) and legal aid is not granted to the accused pursuant to a provincial legal aid program, the fees and disbursements of counsel shall be paid by the Attorney General who is the appellant or respondent, as the case may be, in the appeal.
...
R.S., 1985, c. C-46, s. 684; R.S., 1985, c. 34 (3rd Supp.), s. 9.


CCC

In order for the court to appoint counsel in preparation of an appeal, the accused must establish that it is in the "interests of justice". This requires that he show:

  1. the appeal has merit[1], or, is arguable.[2]
  1. R v Robinson, 1989 ABCA 267 (CanLII), (1989), 51 CCC (3d) 452 (Alta. C.A.)
  2. R v Bernardo, 1997 CanLII 2240 (ON CA), (1997), 121 CCC (3d) 123 (Ont. C.A.)

Amicus Curae

A superior court and provincial court dealing with criminal matters, has the authority to appoint amicus curiae. This power arises from their authority to "control their processes in order to function as courts of law".[1]

The court may also set the terms and conditions of the appointment related to counsel's compensation.[2]

An amicus curiae is counsel appointed by the court to assist an accused in representing himself. This is a more limited role than accused's counsel and does not require the confidence or consent of the accused. The amicus will provide assistance such as

  1. objecting to perceived legal errors;
  2. assisting the appellant in drafting a statement of the defence position;
  3. assisting the appellant in subpoenaing any defence witnesses; and
  4. advising the appellant on any questions of law.[3]

The meaning of an amicus curiae "implies the friendly intervention of counsel to remind the Court of some matter of law which has escaped its notice and in regard to which it is in danger of going wrong."[4]

Where the accused discharges their counsel who is subsequently appointed as amicus curiae, the accused can only appeal the appointment if there is an actual conflict of interest between the accused and his counsel.[5]

Under 486.3(1), in any proceedings involving a cross-examination of a witness under 18 years of age and the accused is self-represented, the prosecutor or witness may apply to have counsel appointed to conduct the cross-examination unless the "proper administration of justice requires".

Under 486.3(2), in any proceedings involving a cross-examination of a witness and the accused is self-represented, the prosecutor or witness may apply to have counsel appointed to conduct the cross-examination where it is necessary "in order to obtain a full and candid account".

Under 486.3(4), in any proceedings involving a cross-examination of a witness with respect to an offence of criminal harassment (264) and the accused is self-represented, the prosecutor or witness may apply to have counsel appointed to conduct the cross-examination unless the "proper administration of justice requires".

  1. R v Russel, 2011 ONCA 303 (CanLII)
  2. Russel
  3. R v Amos, 2012 ONCA 334 (CanLII)
  4. R v Samra, 1998 CanLII 7174 (ON CA), (1998) 129 CCC (3d) 144 (1998), 129 CCC (3d) 145 citing R v Grice (1957), 119 CCC 18 per Ferguson J.
  5. Samra, ibid. at 160 per Rosenberg JA (Ont.C.A.)

Competency of Counsel

See: Ineffective Counsel

See Also