Criminal Law Notebook

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

See also: Right to Self-Representation

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) [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

Note up: 802.1

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 CanLII 1392 (ON CA), , [1976] OJ No 418 (QL), 31 CCC (2d) 167 (ONCA), 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 to 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), , 173 CCC (3d) 307 (O.S.C.J.), per Trafford J
  12. ↑ R v Romanowicz, 1999 CanLII 1315 (ON CA), , 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 inherent authority to "control their processes in order to function as courts of law" as well as the jursidction to " permit a particular proceeding to be successfully and justly adjudicated".[1]

An amicus can play a variety of roles as determined by the Court. There is no fixed role that they must play.[2]

Duty is Always to the Court

In any circumstances, the "defining characteristic" of an amicus is that their primary duty is to the court and responsibility to ensure "the proper administration of justice".[3] The amicus is not a lawyer to the accused, but rather is effectively a lawyer to the court.[4]

Purpose

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.[5]

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."[6]

Terms and Conditions of Amicus

The court may also set the terms and conditions of the appointment related to counsel's compensation.[7]

Amicus for Step Six Garofoli hearings

There is no special or enhanced obligation to appoint an amicus on a "Step Six" Garofoli application.[8]However, it should be done in "particularly difficult cases".[9]

Appeal of Appointment

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.[10]

  1. ↑ R v Russel, 2011 ONCA 303 (CanLII), per curiam
    R v Thompson, 2017 ONCA 204 (CanLII), per curiam, at paras 15 to 18
    R v Ontario V Criminal Lawyers' Association, [2013] 3 SCR 3, 2013 SCC 43 (CanLII), per Karakatsanis J, at para {{{2}}} ("While courts of inherent jurisdiction have no power to appoint the women and men who staff the courts and assist judges in discharging their work, there is ample authority for judges appointing amici curiae where this is necessary to permit a particular proceeding to be successfully and justly adjudicated.")
  2. ↑ Criminal Lawyers, ibid., per Fish J (dissent), at para 117
    R v Cairenius (2008), 2008 CanLII 28219 (ON SC), 232 CCC (3d) 13 (Ont. S.C.J.), per Durno J, at paras 52 to 59
  3. ↑ Criminal Lawyers, supra, at para 118 ("Regardless of what responsibilities the amicus is given, however, his defining characteristic remains his duty to the court and to ensuring the proper administration of justice.")
  4. ↑ Criminal Lawyers, supra, at para 118 ("An amicus’s sole “client” is the court, and an amicus’s purpose is to provide the court with a perspective it feels it is lacking ― all that an amicus does is in the public interest for the benefit of the court in the correct disposal of the case")
  5. ↑ R v Amos, 2012 ONCA 334 (CanLII), per Watt JA
  6. ↑ 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
  7. ↑ Russel, supra
  8. ↑ Thompson, supra
  9. ↑ Thompson, supra, at para 17
    R v Shivrattan, 2017 ONCA 23 (CanLII), per Doherty JA, at paras 65 to 66
  10. ↑ Samra, ibid. at 160 per Rosenberg JA (Ont.C.A.)

Statutory Forms of Amicus Curae

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".

Competency of Counsel

See: Ineffective Counsel

See Also

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