An increasing practice of self-representation

Abdeali Saherwala | Staff Writer

Featured image: Self-representation in court, as described by legal professionals, is a risky path for one to take. | Courtesy of Joe Gratz

Self-representation in the Canadian court system has become an increasingly common phenomenon due to an array of systemic issues, which take a toll on all parties involved.
Pro se legal representation is a legal term used for individuals who advocate on their own behalf before a court, rather than being represented by a lawyer or legal counsel.

“Self-representation in court is a phenomenon that is increasing—not just in Canada, but across the globe. In some areas of law, such as family law, we are seeing 70 or 80 per cent of cases that involve at least one self-represented litigant. It is not a unique thing; self-representation is becoming much more typical,” says Trevor C. W. Farrow, a professor at Osgoode.

If an individual chooses not to have a lawyer or cannot afford a lawyer, then they will have to represent themselves in court.

“There is no constitutional amendment. A person has a right to a trial. They can hire a lawyer if they want, and if they choose not to hire one, the court can’t make them, unless there is an exception to that,” says Ingrid Grant, a lawyer for Simcoe Chambers.

For example, for certain crimes the prosecutor can appoint someone to do the cross-examination. “The person has the right to a trial, so if they don’t want to hire a lawyer, the trial goes ahead and they represent themselves,” she adds.

The leading reason why people self-represent in court is because they cannot afford a lawyer, or do not qualify for one of Ontario’s legal aid services.

The income threshold for receiving legal aid is calculated through a defendant’s yearly income and divided by the number of family members. For an individual, if their income is below $22,720, then they will qualify for a Legal Aid Certificate. As for a family of five or more, if that family’s income is below $50,803, then they also qualify for a Certificate.

“There are no strengths to self-representation—it’s a terrible idea, and nobody should do it. Most people that represent themselves don’t do it by choice—they do so because they make too much to qualify for a legal aid lawyer, but don’t make enough money to pay for a lawyer’s private fees. Thus, they fall through the cracks and end up being forced to represent themselves.

“They would much rather have a lawyer, but they just can’t afford one, or are qualified to get one for free. That’s the majority of people that represent themselves in Canadian courts,” adds Grant.

Another crucial segment of the Canadian population to acknowledge who self-represent are those with serious mental health conditions, who tend to distrust law enforcement, legal aid counsels, and other forms of governmental support.

“They are not able to assess what’s truly best for them. They have ideas, like that they are subject to a conspiracy,” says Grant.

Farrow adds another issue that causes people to self-represent: a lack of access to legal counsel, due to the fact that they may reside in one of Canada’s more remote regions.
In addition, many individuals believe they do not need a lawyer, as they see themselves as capable of learning the legal and judicial framework on their own.

“Sometimes, people think that they don’t need a lawyer—they think that they can do their own stuff. However, going to court is not an easy experience, and legal proceedings and law are difficult and complicated. People go to law school for a number of years, are called through the Bar Exam as lawyers, and they still find it a challenge when going to court,” says Farrow.

“The benefit of having a lawyer is that they know what they are doing—they understand the system and laws, and they know how to cross-examine a witness. Every conceivable benefit is found in having a lawyer, and none in not having one,” adds Grant.