Self-reps and the need for more help
By Jennifer Pritchett, Associate Editor
More help needs to be provided for self-reps in a justice system where some accused people can’t afford counsel and don’t qualify for legal aid, says Oshawa criminal lawyer Lawrence Forstner.
“Let’s face two facts: people have a right to defend themselves in court and many people do not have the funds necessary to pay for a lawyer,” he tells AdvocateDaily.com.
“There is a huge group of ‘sandwich’ accused people who make more money than the legal aid cut-off, yet not enough to pay two, three or four thousand dollars or more for lawyer fees.”
Forstner, principal of Forstner Law, says the system has to “honour the self-reps."
“I like to think of self-reps as self-advocates: people who are learning to assert themselves to protect their own rights,” he says.
However, Forstner says the reality is most self-represented litigants struggle with the legal jargon, process and the “machinery of the criminal justice system.”
As a result, representing oneself doesn’t usually work to one’s advantage, he adds.
Knowing the rules and best way forward can be challenging for a non-lawyer and can have a big impact on their defence, says Forstner.
He points to s. 486.3 of the Criminal Code, which gives the court the authority to insist that a self-represented accused cannot cross-examine complaining witnesses that might be seen as somewhat vulnerable.
“It can happen when the witness is a child or a spouse in a domestic case, or even a spouse who is currently involved in a family law proceeding against the accused, and the criminal case is somehow wrapped up in that,” he explains.
“The courts have claimed the right to limit one aspect of the accused’s self-representation, without taking their authority away from them entirely. It is a system that can work, but it can go haywire, with accused people asking themselves whether this ‘appointed’ lawyer will actually help their case or hurt it.
“It takes a determined and sensitive approach for such counsel to maintain a good relationship with the self-rep in this situation.”
To protect the accused’s rights and all those involved, Forstner notes that the courts usually “bend over backwards to accommodate and educate self-reps to the extent that some judges will allow a proceeding to go on much longer than normal, simply to ensure that the accused is not prejudiced by the court’s inability to communicate with people other than lawyers.”
While no one knows the specifics like the accused, Forstner says it can be difficult for a self-rep to avoid making big errors that “could tank their case.”
There can also be a "palpable irritation" in the courtroom when people are representing themselves, he says.
“I believe this negative attitude sometimes causes as many problems as the people who are representing themselves. But the big picture is that self-reps do slow things down and add cost to the system," he says.
"While a great deal of the money is being thrown at it to make it more accessible, without funding for people who are ‘sandwiched’ in the criminal justice system, that accessibility and openness just presents a slightly lower hurdle over which they have to jump.”
Forstner says he doesn’t expect the number of self-reps to decline and in fact, anticipates the legal sector to evolve to include lawyers offering them coaching services and advice about how to navigate the process.
“I talk about self-advocacy quite a bit on my website, and do offer coaching and advisory services,” he says.
“It’s an area that’s fraught with potential problems, but given the economic reality, it looks to me like a market that will be exploited — especially as some technology barriers come down, and lawyers are able to offer their services to a wider array of people and places.”
Forstner calls for change to assist low-income earners who often feel they have no other choice but to represent themselves because of financial constraints.
“We must lower the barriers and bureaucracy to self-representation; we must fight to give more financial aid to low-income earners; and we must simplify the systems with which people interact,” he says.