August 21, 2009

Do the Homeless Face Discrimination in Court Applications for Legal Funding?

I posted in April about the cuts to the Legal Services Society, including predictions from lawyers that slashing legal aid funding would simply lead to an increase in Rowbotham applications, where a person denied legal aid can apply for a court order requiring their legal costs to be paid by the government. As I wrote then, "The test in a Rowbotham application is whether the accused is in jeopardy of going to jail, whether they have unsuccessfully sought legal aid and whether they have funds for their own defence."

Speculation in April was that an increase in Rowbotham applications would lead to increased costs and clog up courtrooms. Now, some Vancouver lawyers are accusing the Attorney General's office of opposing Rowbotham applications depending not on the need of the accused, but rather on the accused's chance of making a coherent application. Making a Rowbotham application is certainly more complicated than filing out a form or two. It requires gathering and presenting written and oral evidence that the person meets the test for court-ordered funding.

Critics allege that the AG is opposing Rowbotham applications brought by indigent, unrepresented people. However, where someone is represented by counsel, often acting pro bono, the AG will more often consent to the Rowbotham application or the Legal Services Society will change its mind and provide legal aid funding to the accused.

Vancouver lawyer Phil Rankin points to a recent case of his to illustrate the problem:

"In this case, Olivia Edgars, 27, who was charged with four counts of breach of probation, was initially denied legal aid. Rankin appealed that decision and the Legal Services Society confirmed no funding would be provided.
Like so many, Edgars is addicted to heroin, collects $230 a month from welfare, occasionally turns tricks to feed her habit and suffers from mental health issues.

She has at best a Grade 6 education.

Edgars is like most of the chronic offenders who get caught in the revolving
door of these minor charges tied to their addictions and homelessness. She has
no fixed address so there is no place to send Crown disclosures or to contact
her. And, let's be honest, she's incapable of understanding the nature of a
criminal trial and the issues at play.

Surprisingly, however, on the eve of her Rowbotham hearing (with Rankin in her corner), the attorney-general authorized funding.

'This came as surprise to me,' the lawyer said, 'as the LSS had twice denied funding and because the LSS has a policy of not funding category one offences unless a person suffers from a serious mental or physical disability.'

The society says it has approved 70 cases under its disability exemption so far.

Rankin figured Edgars received funding because the government knew it was about to lose -- as it would in similar, competently prepared cases -- and he thinks that stinks. Few of these individuals can produce a competently prepared case or properly defend themselves.

'Making the unrepresented accused jump through these hoops is too onerous and the AG is abusing the process and litigants by paying off those who can do a proper Rowbotham application,' he said.

'Ironically, the time and preparation and defence [of Rowbotham applications] is costing the taxpayer tens of thousands of dollars to prevent [the needy] getting legal aid which would be much less expensive.'"

August 14, 2009

The Non-Lawyer Agent: Can My Friend Represent Me In Court?

The short answer is maybe. While someone is entitled to represent themselves in court or be represented by a lawyer, there is no automatic right to have a friend or family member act on your behalf. (See R. v. Dick, a 2002 decision of the B.C. Court of Appeal.)

This is because the court is concerned that people are represented by someone competent and ethical.

The court's preoccupation with whether a person is well-represented may seem absurd to someone who can't afford a lawyer and can't represent themselves; surely almost anyone would be an improvement in that case.

The problem, however, is that if a lawyer does not provide competent legal advice, the court will often intervene to prevent a miscarriage of justice. Also, the Law Society regulates lawyers to make sure they are competent and ethical, and takes disciplinary measures when they do not meet this standard.

However, no one will make sure your cousin is doing a decent (and honest) job on your behalf. If a friend or family member is incompetent, the court will not intervene, since the friend/family member is viewed as your agent, and therefore you are treated as though you are representing yourself.

This means that someone who chooses to be represented by an agent gives up the legal right to effective assistance by a lawyer. (See R v. Romanowicz, an Ontario criminal case which likely also applies to civil matters.)

That said, the court may permit someone to act as an agent so long as there is no evidence that the person is dishonest or unethical. This is a discretionary decision by a judge and so should not be considered an automatic right. In deciding whether to permit someone to act as an agent the court will consider a number of factors, including whether the proposed agent:
  • Has been shown to be incompetent
  • Would damage the fairness of the hearing or trial
  • Is facing criminal charges involving dishonesty or the administration of justice
  • Has been convicted of crimes of dishonesty
  • Has otherwise demonstrated a lack of good character that would bring the administration of justice into disrepute

While it is good to be aware of the disadvantages of using an agent, the reality is that for people who can't afford a lawyer and are ineligible for pro bono legal representation, but who also face barriers to representing themselves in court (such as literacy or language skills), finding a trusted friend or family member to act as agent may be an imperfect but necessary alternative.