1. Self-Represented Accused's Rights, Responsibilities & Supports

In 2006, the Canadian Judicial Council issued a statement of principles on self-represented persons to foster access to justice and equal treatment under the law. Read the full statement of principles here. The following are the highlights of the statement.

“Access to justice” is usually a term used in civil or family law, where a person takes steps to seek or protect a legal remedy or right. However, in criminal law, an accused is compelled by the Crown to come to court to answer a charge of alleged wrong doing. With this being recognized, there is a broader aspect of access to justice, which is used here in a criminal context. Thus, in this context, access to justice for those who represent themselves requires that all aspects of the court process be open, transparent, clearly defined, fair, simple, convenient and accommodating.

The court process in criminal cases should, to the extent possible, be supplemented by processes including case management (see s. 551.1 of the Criminal Code), and pre-trial conferences.

Information, assistance and self-help support for self-represented persons should be made available through the normal means of information, including pamphlets, telephone and courthouse inquiries, legal clinics and internet searches.

All self-represented parties should be:

• informed of the potential consequences and responsibilities of proceeding without a lawyer;
• informed of or referred to available sources of representation, including those available from Legal Aid, pro bono assistance and community and other services; and
• informed of or referred to other appropriate sources of information, education, advice and assistance.

Judges and court administrators do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons. Generally, self-represented persons should not be denied rights on the basis of a minor or easily rectified deficiency in their case. In criminal law, however, where the Charter of Rights and Freedoms (Charter) often has a greater role, the rights of self-represented accused are substantive, quite complex, often changing as cases are decided, and beyond the scope of this Criminal Handbook – thus, legal advice should be sought.

Where appropriate, judges engage, as early in the court process as possible, in such pre-trial conference activities as are required to protect the rights and interests of self-represented accused.

Depending on the circumstances and nature of the case, the presiding judge may:

• explain the process;
• inquire whether the accused understands the process and the procedure;
• make referrals to agencies able to assist the accused in the preparation of the case;
• provide information about the law and evidentiary requirements; and
• modify the traditional order of taking evidence.

Judges and court administrators try to meet the needs of self-represented persons for information, referral, simplicity and assistance.

Forms, rules and procedures have been developed (see the Criminal Code and formal written rules in each province or territory) which are intended to be understandable and easily accessed by self-represented persons.

To the extent possible, judges and court administrators have developed / made available packages for self-represented persons and standardized court forms (check at the criminal registry in the courthouse where your proceeding is taking place).

Judges and court administrators have an obligation to assist a self-represented accused through the criminal trial process so as to help ensure that the trial is fair. In response, a self-represented accused has an obligation not to be disrespectful, frivolous, unreasonable, vexatious, or abusive.

You have the right to represent yourself, and to appear in court without a lawyer. But, it is highly advisable to get a lawyer if able to do so. Lawyers provide experience and legal expertise that help to reduce the stress and time of a legal case. They can also provide valuable advice that can help defend or fairly resolve the case. In criminal cases, it is important to get good legal advice because the consequences of being found guilty may be very serious. A lawyer may be better able to help resolve a case in a way that may prevent receiving a criminal record or reduce jail-time or fines.

The Crown must prove the case against you, as an accused, beyond a reasonable doubt. Therefore, you need not prove anything, and are entitled to do nothing in your own defence. Nevertheless, you may wish, in the appropriate way and time, to raise questions that cause a reasonable doubt. In this context if you wish to raise a reasonable doubt, you may take any reasonable steps to do so. The information in this Handbook is intended to assist in doing so.

To the extent that you wish to take steps raise a reasonable doubt, learning about the court process, the rules and the law that relates to the case against you, may assist you. The fact that you do not have a lawyer will not excuse you from having to follow court rules and processes.

You have the right to be in the courtroom throughout the hearing or trial. However, that right is not absolute: if you disrupt the hearing, the judge can require you to leave the courtroom, and may also find you in contempt of court, which means not following the judge’s orders. The punishment for contempt of court may include a fine or jail.

Judges ensure that the case is dealt with fairly and impartially, and also ensure that the law of evidence and procedures of the court are followed. Judges consider the offence(s) charged, hear from witnesses, assess the credibility of witnesses, consider arguments, and make decisions based on the law and the facts. Where there is no jury, a judge will decide whether you will be found guilty beyond a reasonable doubt or not at the end of the trial.

If there is a jury, the judge will not decide whether you will be found guilty or not guilty, but will instruct the jury on the law so they can make an appropriate decision as to whether or not you will be found guilty beyond a reasonable doubt.

A judge cannot provide you with legal advice or tell you how to protect your rights or how to run your case. They must remain neutral and unbiased. A judge will, however, provide you with information about the process and help explain and clarify what is happening. If you do not understand what is happening or what you are being asked to do, you should ask the judge to explain.

Do not contact the judge outside of the courtroom. If you need to send any letters or information when you are not in a hearing, send it through the courthouse staff. Make sure to also send to Crown counsel a copy of everything you are sending to the court.

Free or Low-Cost Lawyers

If you do not have a lawyer because you cannot pay for one, you can try applying for a legal aid lawyer. There are certain criteria such as income level or type of case that may allow you to qualify for free legal aid. Check with your local legal aid provider to see if you qualify. If you do not qualify for legal aid, check to see what other free or low-cost legal services are provided in your area. There are often legal clinics and non-profit organizations that can provide some legal advice. See Resources at the end of this Handbook.

If you cannot get a lawyer and have been denied Legal Aid

There is no general right to a court-appointed lawyer in Canada. However, in certain circumstances (lack of financial ability, seriousness of case, and other factors), you may make an application to a judge (a “Rowbotham Application”) to halt (stay) the case, unless the Government funds a lawyer for you (through Legal Aid).

 Additionally, the judge, in certain circumstances, may appoint a lawyer to act as a friend of the court (amicus curiae) to ensure a fair trial.

To qualify you must show you:

1. need a lawyer but cannot afford one;
2. have been denied legal aid, and exhausted all avenues of appeal of the legal aid denial;
3. face a serious criminal charge(s); and
4. face a complex criminal proceeding.

How to file a Rowbotham Application

First you need to apply to the court in writing to ask for an adjournment of your case while your Rowbotham Application is being considered, by submitting the following two documents to the courthouse staff:

1. Affidavit: a written statement, sworn under oath or affirmed, explaining your situation and background that supports your application; and
2. Notice of Application and Constitutional Issue: a document that tells the Federal Government (federal charges), and / or provincial or territorial government (provincial or territorial charges), and local Crown office that you are asking for your case to be temporarily halted (stayed) until you have a government-funded lawyer to represent you.

You must serve (deliver) the documents to the following:

• The local Crown (government lawyer).
• The Attorney General of Canada (if a federal charge).
• The Attorney General of your province / territory (if not a federal charge).

If you do not know where to send these documents, you may ask the courthouse staff for the appropriate addresses. The government will send you a letter explaining what the next steps are for you to follow.

Legal Advice

If you cannot afford a lawyer to represent you throughout your trial, and cannot get legal aid or a Rowbotham Order, you might still be able to get legal advice. A lawyer might provide limited services to a client. Lawyers call these services "unbundled" or "limited scope" legal services. If you think you can handle some parts of your case, you can pay a lawyer to do the parts that you cannot do. It is an arrangement where you pay only for what you want. It is a mid-way option between full legal representation and no legal representation.

Here are some examples where you might pay a lawyer for limited or unbundled services:

• You pay the lawyer to research the law. The lawyer can provide you with a summary of case law that can help you.
• Your lawyer helps you prepare the documents that are necessary for the court hearing, and gives you advice on how to make your own application in court.
• You prepare your own court documents and hire the lawyer to represent you in a court hearing.

An agreement with a lawyer for legal work is called a “retainer”. A written retainer letter sets out the work that the lawyer has agreed to do, and what the lawyer will not do. The retainer agreement sets out the scope of your lawyer’s involvement in the file. It is very important that both you and your lawyer understand and agree on which tasks you have asked your lawyer to do. Your lawyer will want to be sure that you understand the work that you will be doing on your own and that you are capable of handling it. Your lawyer will prepare the retainer letter.

Your case may be complicated. If you want to go ahead without a lawyer, you may do so. However, having the assistance of a lawyer to assist with complex legal and factual issues is preferable. Even if you do not retain a lawyer it is advisable to speak to a lawyer to get some legal advice. Legal advice will help you better represent yourself. So, make sure to use all possible methods available to you of getting legal advice.

Preparing to meet with a lawyer

Your first meeting with a lawyer is an important step in dealing with your case. In addition to giving you a chance to meet each other, you can also learn a lot about your criminal case, and what the result is likely to be.

What a lawyer will want to know:

• Basic information: The lawyer will want to know your situation and the reason that you decided to consult them.
• All relevant information: It is very important to tell the lawyer everything that they want to know that is related to your case, not just the information that supports your side of the story. It is sometimes difficult to know what is relevant and what is not, but the lawyer will help you sort this out.
• The truth: It is important to tell the lawyer the truth so they can advise you properly. Remember what you say to the lawyer remains confidential (there are some very narrow exceptions to this rule such as if you tell the lawyer about harm you are planning to do to someone). A lawyer cannot act for you if you are planning to testify and not tell the truth.
• Documents: You must also provide all relevant documents to the lawyer. Take a file of documents to your appointment containing anything that relates to the offence with which you are charged, including all the disclosure provided by Crown Counsel.

Documents to take to your first meeting with a lawyer:

• A written summary of the facts and the criminal charge(s) you are facing.
• Any disclosure you have received from the Crown.
• Important documents, such as letters, invoices, receipts, photographs, court documents, agreements, diagrams, maps and contracts.
• Personal contact information, including your personal and business addresses, telephone numbers, email addresses.
• Contact information for witnesses.

Review the Questions to Ask a Lawyer Worksheet so you get a better idea of what to ask the lawyer.

Download the Worksheet

Some of the following questions may not apply to your situation. Read the worksheet before visiting a lawyer and cross off the questions you do not need to ask.

1. What experience do you (the lawyer) have with similar cases?
2. How would you handle my case?
3. How does the law affect my situation?
4. What are my options?
5. Is there a maximum or minimum sentence for the charges?
6. What happens if I plead guilty? How will it affect my automobile driving licence or insurance (if a driving offence), future employment, my immigration status, or my ability to travel outside of Canada?
7. How do I obtain disclosure from Crown?
8. Do I need statements from witnesses?
9. How strong is my case?
10. Can you explain the charges to me?
11. How long will it take before my case goes to trial?
12. What sentence is the court likely to order if I am found guilty?
13. If I am successful at trial, what happens?
14. How much will it cost to handle my case?
15. When will I receive bills from you, and when am I expected to pay?
16. How can I reduce the cost? Can I handle some of the legal work myself? What is your hourly rate?
17. Does the lawyer need a retainer fee right away?
18. How is it best to contact the lawyer, and how soon can I expect a reply?
19. What do you expect from me and what can I expect from you?

Notes:

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When you appear in court without a lawyer, the judge will likely ask you if you have obtained a lawyer or if you wish to. If you would like to obtain a lawyer but have not been able to yet, you may ask the judge to grant an adjournment to obtain a lawyer. Explain to the judge:

• that you wish to hire a lawyer;
• the reason why you have not been able to get a lawyer yet; and
• that you wish to request an adjournment of your case until you have a lawyer (this must be a reasonable amount of time; you cannot use this as a tactic to delay the case).

Understand that if you tell the judge you wish to go ahead without legal representation, it may be difficult to change your mind after the trial has started. If you choose to represent yourself you give up the right to the effective assistance of counsel and cannot appeal the resulting decision on the basis that you did not have representation.