I've taken a major research interest in access to justice issues, and I'm specifically interested in how access to justice is a problem for self-represented litigant's ("SRL's") in (a) criminal proceedings and (b) proceedings at administrative Tribunals, such as the Human Rights Tribunal of Ontario, for example. I apologize for the amount of questions I have, but I hope you can answer them!
What is your experience with SRL's in criminal defence? Do you commonly experience SRL's in the criminal justice system?
Do the courts attempt to accommodate SRL's? For example, do Judge's attempt to even the playing field between the accused and crown at trial? Do judge's intervene on behalf of the accused when the crown attempts to banter the accused with leading questions, etc? If they negotiate at all, does the Crown negotiate differently with an SRL as opposed to counsel?
Understanding that each crown is different, what is the general conduct of the crown like towards SRL's -- in your experience? Do they respect SRL's? Do they lessen their approach at trial (i.e., does an aggressive crown become a non-aggressive crown in an attempt to accommodate the SRL? Do they inform the SRL of their rights?
Do you rely only on legal aid, or do you also provide assistance to those who are not eligible for legal aid? For those that are not eligible for legal aid, but also can't afford the costs of a lawyer, how do you help these individuals? ***As a sole practitioner, I understand that you need to make a healthy income, so this leads me to my next question***: How do sole practitioners sustain a healthy practice and livelihood, while attempting to balance the issues that commonly arise in access to justice? Is this something that is possible for sole practitioners?
Have you ever defended a murder case, or some high-profile, stress-inducing, not-commonly seen case? If so, what the hell was that like? If not, would you ever want to defend a murder case, or some high-profile, stress-inducing, not-commonly seen case? (note: I recognize that all cases are likely stress-inducing to some extent. I'm only referring to the big cases in this question -- murder, sexual assault, etc).
Also, I'm not sure if this question has already been asked/answered, but I'll ask it anyway:
As you mentioned in an earlier post, the police have a job to do, and they do it. However, (and as I'm sure you know), there are times when the police violate the law in the execution of their duties. For example, if a police officer initiates a charge aganist an accused that has no standing, does the crown drop the charge, or do they proceed with it? I suppose an underlying question to this question is ---- what is the relationship like between the crown and police? Are the crown and police "buddies"? If a specific charge is brought aganist an accused that has no standing, does the crown still proceed with the charge (in the spirit of their friendship), or do they drop it and tell the police to grow up?
Thanks in advance --- and I love this thread!
1. I encounter SRLs commonly around the court - I see them in the halls asking questions or in the courtroom waiting to speak. As my job is to represent clients, I only deal directly with SRLs when they are directed my way because they are looking for counsel. I have been asked to do Rowbotham applications for SRLs to have the court appoint them counsel, or s.684 applications for appeals. I have also been appointed pursuant to s.486.3(2) of the Criminal Code where an SRL is going to trial and is not permitted to cross-examine the complainant/s, so counsel is appointed to assist the court.
2. I am actually reviewing transcripts right now for an SRL who wants to appeal a conviction. From what I read so far, the judge did attempt to level the playing field by providing descriptions/explanations to the SRL about things like what a Khelawon application is, what kind of things to focus on in their argument, etc. The judge also asked the Crown to be mindful that the person was an SRL a couple of times. The judge was more lenient about filing deadlines for motions and what was in the materials, etc. However, the judge did not go nearly as far as their lawyer would. I noticed quite a few times where the SRL clearly didn't understand something and nobody said anything, or things the judge let slide that I would have objected the hell out of.
3. My perception through my experience is that Crowns are irritated by SRLs and are always very happy if there is a lawyer now able to assist as they would much rather deal with a lawyer than the SRL directly. I can't speak for all Crowns, but this is what I've seen through the 4 cases I have had where I was assisting an SRL or former SRL. I did find that, no matter how irritated they are, they did make some allowances. They weren't sticklers about the format of materials, they provided limited assistance in terms of explaining how procedures might go, that kind of stuff. They also were urging the person to get counsel and telling them how they could do it. An aggressive Crown isn't going to change their personality for an SRL, but they were definitely aware that they had to be a bit more accommodating.
4. I have both legal aid and fee-paying clients, probably half and half or so - the balance will vary a bit over time. I will occasionally help someone pro bono, but it has to be a conscious decision and for a good reason, because I do have to make a living and contribute to office expenses etc. If someone is refused legal aid and wants a lawyer, I can assist them with a Rowbotham application. I will refer people to clinics or other community resources that may be able to help them, or assist them with legal aid appeals, etc. But ultimately, I can't spend a lot of time on people who generate no income for me. I don't think it matters if you are a sole or not - that's true for any lawyer, or any professional or service provider in general. I don't know many people who renovate houses, drive taxis or cut hair for free, apart from their immediate families and friends maybe. And it's not just legal fees you have to worry about when someone doesn't have money - there are also disbursements on the file that have to be covered. What if you take a criminal case pro bono and then need a $10 or 20K expert report which you don't have Legal Aid or the client covering? Do you have to eat that? What if you can't get off the file now because a judge won't allow it?
There are access to justice issues beyond people not qualifying for Legal Aid that are of equal or greater concern to me and affect me more directly. There are access to justice issues within legal aid - what they pay for, how much they pay for, what they do and don't cover, which cases are worthwhile and which are not, etc. etc. etc. What if Legal Aid will pay for you to defend the client, but not the aforementioned expert report? Now what? Also there are issues within the system - who gets justice, what kinds of stereotypes and prejudices we operate under, who are the judges, blah, blah, blah. One of my pet peeves is that people use "access to justice" to mean "people who can't afford lawyers" and ignore all the other issues.
As well, at least some SRLs, and all the ones I've dealt directly with, weren't SRLs because they couldn't afford lawyers - they had made that choice because they didn't want to listen to lawyers or be constrained by the etiquette lawyers have to follow. Later they either changed their minds or the court appointed counsel, but finances was not the issue - it was their personality.
5. Just finished my first murder, and I have had several what I think would be high-profile, stress-inducing cases. I wouldn't say sexual assault is not commonly seen - I have those all the time and at this point they're pretty run of the mill for me. What was it like defending a murder? I did it with a senior counsel, but I played a fairly large role in the case and they were there as support/quality control. It was AMAZING. The sense of knowing you literally hold someone's life in your hands and how much trust they are putting in you is very humbling. We ended up having the person acquitted of murder but guilty of manslaughter which I think was a fair result. A murder is like any other trial, but everything is just larger and more significant somehow. It's hard to explain - you really have to do it to get it. I've been a lawyer almost 6 years and I wouldn't have been able to anticipate what it was like until I did it.
6. The Crown is separate from police, and they have a duty not to proceed with charges that are not in the public interest or have no likelihood of succeeding. I don't see Crown-police "friendships" that much to the point that they have each other's back - there is a healthy separation and in fact, I know some cops resent Crowns for tossing stuff the police wouldn't have. I mean, some defence and Crowns are friendly - we went to law school together or whatever - but we don't allow our friendships to interfere with our duty to represent our clients zealously. Yes, many times Crowns have stayed charges, sometimes on their own, sometimes after being pushed by me, but they are absolutely willing to do that where necessary. And sometimes they won't stay it outright but will agree to lesser charges or not fight me on a discharge, etc.