Representation at Trial

From Criminal Law Notebook
Revision as of 22:16, 24 January 2019 by Admin (talk | contribs) (Text replacement - "'''([a-zA-Z]+ [a-zA-Z]+ [a-zA-Z]+)'''<br>" to "; $1")

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 choose 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

A judge has a duty to ensure that the accused has a "functional understanding of proper procedures and the proper manner of presenting a case".[6]

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.".[7]

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.[8]

  1. ↑ R v Rain, 1998 ABCA 315 (CanLII), (1998), 130 CCC (3d) 167, per Sulatycky JA 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), per curiam, at para 28
  3. ↑ R v Moghaddam, 2006 BCCA 136 (CanLII), per Levine JA at 35
  4. ↑ R v Tran, 2001 CanLII 5555 (ON CA), [2001] O.R. (3d) 161, per Borins JA, at para 31
    R v Moreno-Baches, 2002 CanLII 3007 (ON SC), [2002] OJ No 4480, per Juriansz J, at para 6
  5. ↑ Tran, supra at 33
  6. ↑ R v Morillo, 2018 ONCA 582 (CanLII), per Paciocco JA(chambers)
  7. ↑ R v Darlyn (1946) 88 CCC 269 (BCCA), 1946 CanLII 248 (BC CA), per O’Halloran JA at p.3
  8. ↑ R v Crichton, 2015 BCCA 138 (CanLII), per Bennett JA at para 23 ("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), per Blair JA
    R v Gardener, 1998 ABQB 190 (CanLII), 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] OJ No 418 (QL), 31 CCC (2d) 167 (ONCA), 1976 CanLII 1392 (ON CA), per MacKinnon JA at paras 9, 11
    R v Stagg, 2011 MBQB 294 (CanLII), per Oliphant J
    Aasland v Mirecki, [2002] M.J. No. 502, 37 C.P.C. (5th) 230(*no CanLII links)
  5. ↑ R v Romanowicz, 1999 CanLII 1315 (ON CA), (1999), 138 CCC (3d) 225, per curiam, at para 74
  6. ↑ R v Dick, 2002 BCCA 27 (CanLII), per curiam
  7. ↑ R v Crooks, 2011 ABCA 239 (CanLII), per Berger JA at paras 8-10
  8. ↑ R v Frick, 2010 ABPC 280 (CanLII), per Wheatley J
  9. ↑ R v May, 2008 ABPC 312 (CanLII), per LeGrandeur J
  10. ↑ R v GYL, 2009 CanLII 38516 (ON SC), per McCombs J
  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, per curiam 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]

  1. ↑ see Jurisdiction_of_the_Courts#Designations_of_Counsel
  2. ↑ see s. 650.01(3)(a)

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 (P.E.I.S.C.Tri.Div.), 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

A superior court and provincial court dealing with criminal matters, has the discretion to appoint an amicus curiae counsel who will assist the court in the proceedings. 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]

There is no special or enhanced obligation to appoint an amicus on a "Step Six" Garofoli application.[5]However, it should be done in "particularly difficult cases".[6]

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.[7]

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), per curiam
    R v Thompson, 2017 ONCA 204 (CanLII), per curiam at para 15 to 18
  2. ↑ Russel, supra
  3. ↑ R v Amos, 2012 ONCA 334 (CanLII), per Watt JA
  4. ↑ R v Samra, 1998 CanLII 7174 (ON CA), (1998) 129 CCC (3d) 144 (1998), 129 CCC (3d) 145, per Rosenberg JA citing R v Grice (1957), 119 CCC 18, 1957 CanLII 375 (ON SC), per Ferguson J
  5. ↑ Thompons, supra
  6. ↑ Thompson at para 17
    R v Shivrattan, 2017 ONCA 23 (CanLII), per Doherty JA, at paras 65-66
  7. ↑ Samra, ibid. at 160 per Rosenberg JA (Ont.C.A.)

Competency of Counsel

See: Ineffective Counsel

See Also

Retrieved from "https://criminalnotebook.ca/index.php?title=Representation_at_Trial&oldid=23234"