21 August

David and Goliath: The Unrepresented Litigant

By: Marianne Salih

An innocent client recently told me he would not accept the Crown’s resolution offer. He would fight his case – alone. The Crown was offering to withdraw his charges (domestic assault and mischief under) if he completed up front domestic assault counselling and entered into a peace bond.

“I didn’t do this,” he told me. “She only called the police to stop me from hurting myself. I don’t need counseling!” I agreed with him. But this was the Crown’s final offer, and this client had no means of retaining counsel. He had been denied legal aid and had no money to pay for a lawyer. It was imperative that I advise him of the risk he was running: foregoing a guaranteed withdrawal of his charges and instead running a trial self-represented against an experienced advocate.

I told him to imagine a tennis game between a professional tennis player and an amateur. The tennis rackets represent the facts of the case. Even if the amateur had the best racket in the world and the professional had a ping pong paddle, nine times out of ten the professional would still win. In this case my client had a great racket, but he was still an amateur.

“Trials are unpredictable,” I told him. “You never know what can happen.” But, as I said, this client was fiercely principled. So I wished him good luck, gave him my card, and told him to call me for some free legal advice before his trial. As I stood up to walk away, I heard him mutter “David and Goliath.” When I turned around I saw him smiling weakly, with a bible clasped in his hands.

The self-represented litigant is a growing phenomenon in our criminal justice system. According to a recent study by the Department of Justice,(1) 88% of accused persons in Toronto are self-represented (whether acting alone or with duty counsel) at some point in their criminal process. At the bail stage, arguably the most important hearing in the criminal process, over three quarters of all accused persons are unrepresented. By the final appearance (including trials or cases that end up withdrawn or stayed) roughly 38% of all accused persons remain unrepresented.(2)

Unsurprisingly, in the courtroom as on the tennis court, amateurs do not fare well when pitted against professionals. Compared to the represented litigant facing similar charges, the self-rep is generally more likely to be detained at bail, more likely to plead guilty, less likely to get charges reduced or dropped, less likely to advance Charter arguments, and more likely to be convicted at trial.(3) Arguably, self-represented litigants will, due to their lack of advocacy skills, also generally receive harsher sentences.

On average, individual court appearances are shortest for the self-represented accused (less than twice the length of the represented accused), suggesting less attention to self-represented matters in court. Self-represented court appearances are also less likely to address issues of bail, elections, or resolution, and (unsurprisingly) self-represented litigants generally require more court appearances to complete their cases.(4)

Among the many challenges faced by the self-represented litigant are:

• Understanding conditions imposed at a bail hearing, often resulting in violations
• Understanding what defences are available at trial
• Bargaining with the Crown for a better deal
• Navigating the increasingly complex procedural rules of the court
• Understanding the consequences of conviction

Among the many errors made by the self-represented litigant are:

• Not showing up for fingerprinting, thereby incurring new charges
• Not asking for diversion.
• Appearing for the trial date and not understanding that it is, in fact, the trial date
• Pleading guilty when there is a viable defence
• Blurting out damaging information at a bail or early appearance
• Making damaging admissions before or at trial
• Not testifying (or testifying) when they should (or should not)
• Not questioning witnesses or challenging evidence
• Not bringing defence witnesses to trial
• Raising useless arguments
• Not explaining mitigating circumstances at trial or on sentence

These challenges compound for self-represented litigants who are detained. Remand detention centres are not conducive to trial preparation. There are no law libraries; no internet access; no interview rooms for defence witnesses. In a place where the phone system is still inexplicably outdated and prohibitively expensive (Ontario inmates can only dial out to landlines on collect calls that charge the recipient roughly $1 per minute), even reaching out to potential defence witnesses is a challenge.

Reviewing and studying disclosure is also a major concern. Inmates are supposed to be notified when disclosure has come in for them, but that doesn’t always happen. Upon advance booking, inmates are allowed roughly one hour at a time to sit in a room and review disclosure documents. In many cases, however, these total hundreds of pages, often laden with complex jargon and including several discs of audio and video surveillance requiring special programs to play. Inmates don’t always have access to computers, and they cannot take these materials back into the cells with them to study during the majority of their time when they are occupied with absolutely nothing.

The unsuitability of detention centers to trial preparation is akin to placing the amateur tennis player on a boat for several months while he waits for the match to begin. When his tennis racket arrives and he is able to start practicing, he can ask the captain to take him for short periods of time to a tennis court on land, but he’s not guaranteed a tennis ball, and the net may be broken.

One major cause of the increasing prevalence of self-represented litigants is the legal aid system. Legal aid’s budget is limited, resulting in strict eligibility criteria. Single persons who earn more than $13,635 annually do not qualify(5) – a threshold so out of tune with low income cut-offs in Canada(6) (even ODSP and CPP recipients often do not meet the threshold) that often it seems that the only people who do qualify are drug dealers and students. Most recently, an Ontario Superior Court judge retorted that “it should be obvious to any outside observer that the income thresholds being used by Legal Aid Ontario do not bear any reasonable relationship to what constitutes poverty in this country.”(7)

Moreover, individuals who are not facing jail time never qualify. This effectively means that the Crown will determine your eligibility for legal aid – if the Crown chooses to write “jail time” – even one week – on your charge screening form, you may qualify; if the Crown writes “probation” or “fine,” you will not. And Crowns know this. Frequently, accused persons in the latter category will simply plead guilty rather than pay thousands for legal fees or represent themselves. Once they receive their first criminal record and are caught in the criminal/social cycle, they often end up back in court – typically for a breach. By the second or third time, their charge screening form will read “jail” and they can finally qualify for legal aid.

Self-represented litigants who do choose to go to trial face significant disadvantages in terms of knowledge, understanding, and ability – raising serious concerns about the fairness of trials. As a result, trial judges are faced with a difficult task: they must assist the self-represented litigant in understanding the process, his rights, and any available defences; on the other hand, the trial judge must not become an advocate for the self-represented litigant.

For the trial judge, assisting a party who has no knowledge of any of the steps of a complex proceeding – while not advocating for him – is challenging to say the least. Most recently, the Court of Appeal has intervened in three cases where the trial judge did not adequately discharge this duty. In R v Tossounian, 2017 ONCA 618, the Court found that the trial judge failed to ensure that the accused understood and exercised her right to disclosure. In R v Richards, 2017 ONCA 424, the Court found that the trial judge failed to advise the accused of an available defence involving a breach of his right to counsel. In R v Davies, 2017 ONCA 467, the Court found that the trial judge failed to obtain information of the personal circumstances of the accused (which bore upon his moral blameworthiness) on sentencing. And, of course, of the handful of cases that make it to an appellate court, untold numbers of similar cases do not.

Unfortunately, with legal aid’s strict eligibility criteria and the rising cost of legal fees, the number of self-represented litigants is expected to increase. But represented or not, each of these litigants is entitled to a just resolution – be it a valid plea or a fair trial. The reality, however, is that these litigants are disadvantaged the moment they walk in the courtroom doors. Because our adversarial system is premised on both sides being equally represented, this raises the question of whether the system can really deliver justice when amateurs are forced to compete against professionals.

End Notes

(1) The study collected data from nine provincial court sites throughout Canada, each of which were selected to be representative of the existing range of court structures in that province. The figures cited in this blog relate only to data collected out of the Scarborough courthouse.

(2) Court Site Study of Adult Unrepresented Accused in the Provincial Criminal Courts, Chapters 9.3.1-9.4.1.

(3) Ibid., Chapters 9.5.1-9.5.3, 9.6.2.

(4) Ibid., Chapter 9.6.2.

(5) Note that those who earn between $13,635 and $15,781 may qualify under contribution agreements that require the recipient to make monthly payments to legal aid in contribution to their legal fees: Legal Aid Ontario, “Am I eligible for a legal aid certificate?”.

(6) R v Moodie, 2016 ONSC 3469 at para 6: in 2014, the low-income-cut-off was $24,328.

(7) Ibid., at para 6.

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