Self representation advice for those acting on their own behalf at trial
Those facing a criminal crime can represent themselves at trial. In a three-part series, I offer advice to people about how to do that, while pointing out areas where the guidance of a lawyer might make a real difference in the judicial outcome.
What is a first appearance?
When you are released by police or if you are on bail, you will receive a piece of paper called a release document that gives you the date, time and location of your first appearance. This is not your trial date. Instead, it is simply the date you are expected to be in court where you will learn about the case against you and what your options are. You will also get the opportunity to tell the court how you intend to proceed with your case.
During the pandemic, all first appearances have been handled by video conferencing. People who are represented by legal counsel have their first appearances heard first, with self-represented individuals having to wait, usually to the early afternoon, for their first appearance.
If you have a lawyer, they can appear on your behalf. I tell my clients not to show up for a first appearance. I will do it. The justice of the peace does not hear about your guilt or innocence or the facts of the case. All they want to know is if you have retained a lawyer and what the next step is going to be.
In essence, the first appearance is really just case management to ensure everything is proceeding properly. Evidence is never heard here.
What is duty counsel?
If you are self-represented, the court will urge you to speak to duty counsel, who can provide advice about how to move your file along. Keep in mind that duty counsel are not trial lawyers who will run your case. They are usually very busy and it is a good idea to go to court early if you think you will need to talk to them. They can provide:
- basic legal information and advice;
- information and guidance about the court process;
- assistance with court paperwork; and
- help conducting basic court appearances, such as adjournments or bail hearings.
Duty counsel does not replace privately hired lawyers. Although they are fully qualified, practising lawyers, they can only help with certain issues at court and do not provide full representation on a case.
Will I look guilty if I call a lawyer?
No. The fact that you choose to be represented by a lawyer has no bearing on your guilt or innocence in the eyes of the law. However, I would recommend that anyone facing criminal charges should call a lawyer – whether you are guilty or not – as an attorney has the skills and experience to help you effectively deal with the charges and obtain the best outcome possible.
What is disclosure?
Disclosure is the evidence the Crown has and could use against you. Information from the federal government notes that a fundamental element of the Canadian criminal justice system is “that an accused person has the right to the disclosure of all relevant information in the possession or control of the Crown, with the exception of privileged information.”
It adds that there is a “reasonable possibility of the information being useful to the accused person in making full answer and defence. This right to disclosure flows from section 7 of the Canadian Charter of Rights and Freedoms, which provides that ‘everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.’”
If you are represented by a lawyer in a criminal matter, they will receive the disclosure and meet with you and discuss the best path forward.
If you are self-represented, you must take the steps to get the disclosure from the Crown Attorney’s office. You then need to schedule a meeting with the judge and the Crown to see if the matter can be resolved. If it goes to trial, you have to decide if you will plead guilty.
The disclosure package will also have a charge screening form that tells you whether the Crown will ask for a jail sentence if you plead guilty or if you’re found guilty after a trial.
More help is available
The Ontario Court of Justice has published a guideline for those who want to represent themselves in Court. It is interesting that one of the first points is that “law is very complex. If you can, it is extremely important that you hire a lawyer to ensure that your rights are protected. If you can’t hire a lawyer for your entire trial, you should consider consulting a lawyer for specific issues.”
Part two of this series will look at what self-represented people can expect at trial.