Be sure to watch The Verdict tonight!

Tansi/Good Day Folks:

For those following Conrad Black's trial (Chicago) there should be some fascinating discussion on The Verdict. Former business associate, confidant and friend of 30 years David Radler took the stand today. The problem for Lord Black of Crossharbour is Mr. Radler knows where all the bones are buried. He has cut a deal with the Prosecutor in return for his testimony.

Found the following article which we're sending to The Verdict in hope the Producers will devote a future segment to the subject of legal self-representation.

Sincerely,
Clare L. Pieuk

Electronic Distribution:
thevertict@ctv.ca
www.theverdict/ctv.ca
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UNREPRESENTED LITIGANTS: NON-LAWYERS, THE COURTS, AND THE LAW
By Jeffrey Niederhoffer
Community Legal Education Association Newsletter Fall 2006
Page 3

It may be because lawyers are expensive. It may be because cut backs have resulted in Legal Aid no longer appointing lawyers for certain matters. It may be because lawyers are seen to be unnecessary. Or, it may be because lawyers are seen in certain quarters to be part of a distrusted 'system.' Whatever the reason, the courts are witnessing an explosion in the number of litigants who either choose to be unrepresented or have no choice but to represent themselves. It is becoming increasingly common for litigants in family and civil cases, and accused in criminal courts, to appear without counsel, or where allowed, to have 'agents' without legal training appear on their behalf.

In the fall of 2005, The Law Society of Manitoba held a seminar dealing with the issue of unrepresented and self-represented litigants. This article summarizes the information provided by the many excellent presenters at this seminar.

Section 63(3) of the Criminal Code of Canada (the Code) provides that "an accused is entitled ... to make full answer and defence personally ..." which courts have interpreted as meaning the accused have the right to represent themselves without counsel (R. v. Samra). In summary-conviction proceedings [sections 800(2) and 802(2) of the Code], and possibly indictable matters (R. v. Gouchie), accused may also opt to be represented by a non-legal 'agent.' Judges can reject the accused's choice of agent in certain cases, for example, if the accused does not understand that a particular agent lacks professional legal training or accreditation. Judges may also disqualify agents in cases where a particular agent faces a conflict of interest, or has in the past demonstrated dishonesty or disrespect for the law (R. versus Romanowicz).

In criminal cases, in order to ensure a fair hearing, the courts have held that the unrepresented accused must fully understand the obligation of the Crown to disclose relevant evidence (R. v. Payton). Where disclosure comes in the form of videotape and CD-Rom and the accused does no have the equipment to access this evidence, the courts have held that the Crown must provide the accused with appropriate aids, for example, electronic equipment, to access and review the disclosure (R. v. Grant). However, the Crown is also required to carefully control the disclosure of evidence to unrepresented accused in order to protect the security and privacy interests of any person, for example, a case in which there are allegations of sexual offences. In such cases, the unrepresented accused would only be permitted to access disclosure materials in a controlled environment (r. v. Papageorgiou).

The courts have held that, when unrepresneted litigants appear before the Court, a trial judge has a duty to offer assistance as appropriate (R. v. McGibbon, Barett v. Layton). The judge must tailor the assistance offered to an unrepresented litigant according to what is reasonable in the circumstances of each case taking into account the complexity of the case and the sophisticatuion of the litigant (R. v. Tran, R. v. McPhillips). Nevertheless, with respect to criminal trials, courts have held that judges have certain duties to assist unrepresneted accused:

• a duty to advise the accused of the right to counsel and of the disadvantage in proceeding to trial without the assistance of counsel (R. v. McGibbon)
• a duty to assist the accused in the examination of witnesses (R. v. Huebschwerlen), and
• a duty to raise possible defences for the accused if there is evidence the accused's rights under the Charter of Rights and Freeoms have been violated (r. v. Arbour)

The Code gives the trial judge the discretion to stop the acccused from personally cross-examining certain witnesses, for example, witnesses under eighteen years of age and victims in criminal harassment cases. In all cases in which the judge exercises this discretion, the judge must appoint counsel to conduct the cross-examination on behalf of the accused. In addition, judges are under a general duty to stop abuse of the trial process by an unrepresented accused. Judges have a duty to likit the persentation of irrelevant or redundant evidence (r. v. Fabrikant, R. v. Smith). In cases in whichthe accused "misconducts himself by interrupting the prceedigns so that to continue the proceedings in his presence would not be feasible," section 650(2)(a) of the Code gives the judge the discretion toremove the accused from the courtroom.

Jeffrey J. Niederhoffer
(jnieder@shaw.ca)

Mr. Niederhoffer is a lawyer practicing in Winnipeg. Many may recall over last year's holiday season he offered notarial services at no charge to low income citizens.