Canadian Criminal Procedure and Practice/Trials/Representation at Trial

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Representation by Agent[edit | edit source]

An agent generally may not represent an accused on a summary conviction appeal.[1] This is usually prohibited both 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.[2]Certain provinces, such as British Columbia (R. v. Dick, 2002 BCCA 27) and Alberta[3], allow limited exception to this rule on the discretion of the judge.

  1. See R. v. Duggan, [1976] O.J. No. 418 (QL), 31 C.C.C. (2d) 167 (ONCA) at 9, 11;
    R. v. Stagg, 2011 MBQB 294
    Aasland v. Mirecki, [2002] M.J. No. 502 (QL), 37 C.P.C. (5th) 230
  2. R. v. Romanowicz, 1999 CanLII 1315 (ON CA), (1999), 138 C.C.C. (3d) 225 at 74
  3. R. v. Crooks, 2011 ABCA 239 at 8-10

Self-Representation[edit | edit source]

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
  1. R. v. Rain 1998 ABCA 315 (CanLII), (1998), 130 C.C.C. (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 at 28
  3. R. v. Moghaddam, 2006 BCCA 136 at 35
  4. R. v. Tran, [2001] O.R. (3d) 161 at para. 31
    R. v. Moreno-Baches, [2002] O.J. No. 4480 per Juriansz J. at para. 6
  5. Tran, supra at 33

Right to be Heard[edit | edit source]

There is a fundamental tenant that all parties affected by a decision shall be given an opportunity to be heard by the court before the court makes a ruling. This is the principle of audi alteram partem principle.[1]

  1. R. v. Gustavson, 2005 BCCA 32 at 64

Withdraw by Counsel[edit | edit source]

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 (1974) SCR; R. v. Huber, 2003 BCCA 43
  2. R. v. Cunningham, 2010 SCC 10

Discharging Counsel[edit | edit source]

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, [2010] 1 S.C.R. 331, at para. 9

Amicus Curae[edit | edit source]

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
  4. Samra (1998), 129 C.C.C.(3d) 145 citing R v Grice (1957), 119 C.C.C. 18 per Ferguson J.
  5. R. v. Samra, 1998 CanLII 7174 (ON CA), (1998) 129 C.C.C.(3d) 145 at 160 per Rosenberg JA (Ont.C.A.)

Competency of Counsel[edit | edit source]

See: Canadian Criminal Procedure and Practice/Trials/Ineffective Counsel