Photo: Casey Richardson

Anthony Davis displays the piles of court documents he wrote by hand and tried to submit to the criminal courts while behind bars at Okanagan Correctional Centre

This is part one in a series of three articles about the pitfalls of legal representation from behind bars in Canada.

Anthony Davis is fed up with the legal system.

Davis is a 64-year-old Penticton man who has spent a chunk of this past year behind bars at Okanagan Correctional Centre awaiting trial, facing charges of criminal harassment and disobeying court orders.

Rather than hiring or being provided with a lawyer, he has chosen to represent himself, a decision that he says has been a nightmare.

“I felt like I was just pushed into a black hole where I could do nothing to prepare myself to make full answer in my own defence,” Davis said.

He is no stranger to the justice system. Davis was convicted of criminal harassment multiple decades ago in Manitoba in 2001. In 2002 he defeated a further charge by being his own advocate.

This time around feels different to Davis. He says he has encountered multiple roadblocks to self-representing, especially while incarcerated.

His concerns are not unique.

The executive director of BC’s Prisoners Legal Services, Jennifer Metcalfe, told Castanet that the challenges faced by inmates in BC's provincial prisons, including limited access to counsel, internet and legal resources hinder self-representation in court.

In Davis’ case, he has denied all charges against him, and it will be up to the courts to decide on his guilt.

But whether his constitutional right to defend himself while incarcerated has been met is another matter, and one he believes is up for debate.

Access to resources

After being arrested in April, Davis was placed behind bars and was not released on bail until the end of August.

Davis said he was originally denied bail and claimed he was unable to speak at his own hearing.

For weeks, he said, he spent time in the prison’s law library, which reportedly has a decades-old computer that only has access to one website — the Canadian Legal Information Institute, colloquially known as CanLII.

The publicly available search platform is used to find case law, legislation, and commentary.

“I could educate myself to a degree when I could get up to the law library, which was at the whims of the prison depending on the availability of staff and so on,” Davis said.

“But as far as representing myself goes … I could not do a single thing inside the prison.”

Metcalfe confirmed that in her experience, resources in B.C. prisons are limited, and many programs are not running because the facilities are understaffed.

“Some people have reported getting an hour or so at the library per week. You can submit a request to ask for more time but that is not always accommodated. During staff shortages, lockdowns, etc, the library (along with gym, programs) is the first to go,” Metcalfe said, citing information from Prisoners Legal Services at Okanagan Correctional Centre.

She stated that prisoners also report having trouble reaching counsel.

“People don't have access to the internet, so they don't have access to email. They don't have access to phones all the time,” Metcalfe said.

“As lawyers, we can't just phone our clients or email our clients when we need to contact them, we have to put in a call-back request through the visits and correspondence department of the institution.”

Davis said calling out through the phone system — which appears as a 1-800 number and has a long automated voice message — can, in his experience, result in the call being screened.

“Trying to call the Canadian Civil Liberties Association to talk to them and see if there was some way to help; impossible. Even getting a hold of Legal Aid was quite difficult.”

Held up evidence

Davis claims that at one point, a package of “vital exculpatory evidence” was dropped off at the prison.

“They told me it was non-allowable content. And I'm telling them I'm self-represented. I don't know what's in there. I don't know how you can determine this is non-allowable content,” he said.

“So I had to beg [the prison] for weeks to let me go to records and look at what that envelope is. Well, it turns out….[it was] exculpatory evidence that I could have used at my bail hearing to help prove [my case].”

Davis said he couldn't get the evidence until the day before his bail hearing.

“And by then, it was too late to even enter it, because you have to have copies of it. Well, I can't make copies of them, [because] if I give them to the correctional officer and say, ‘Can I get these copied?’ I might see that two weeks later, and my bail hearing was the next day.”

Castanet reached out to the Ministry of Public Safety and Solicitor General for comment, who said in a statement the BC Prosecution Service is responsible for providing disclosure materials.

Once provided, individuals in custody are given access to disclosure materials electronically via dedicated eDisclosure computers and/or in hard copy format, they added.

Inmates will have access to eDisclosure and hard copy materials throughout the day and can take materials with them to court, according to the ministry.

The ministry also added that there are no restrictions within the phone system for individuals in B.C. provincial custody that would prevent them from calling the prosecution service.

“Individuals in custody who choose to represent themselves may also choose to ask the courts to appoint an amicus,” their statement reads. An amicus is a lawyer asked by the court to provide help to the court during proceedings. Davis has not requested one.

Davis said at first, all the disclosure he got was paper. He had requested that he be given access to the eDisclosure, which he claimed came after months.

Another challenge for Davis was writing everything by hand. Inmates were provided a pen and paper.

He had access to a shared laptop but documents would not be saved.

“Well, that's absurd. Why would I want to write everything out in a Word document on this laptop, and then as soon as I close the lid, it all evaporates?” Davis said.

Communication struggles

Davis claimed he tried to notify the judge of his struggles.

“‘Your honour, I'm self-represented, but I am struggling to do it from inside the Okanagan Correctional Center. I can't do this. I can't do that.’ And they would say, ‘Well, sure, you can.’”

At one point, Davis said the communication between him and the courts was so challenging that an acquaintance, a civil lawyer, stepped in to help him communicate.

“I [also] reached out to Legal Aid lawyers about doing something, a hybrid kind of representation,” Davis said.

“They won't do it. It's all or nothing. They want the whole case or they want nothing.”

Legal Aid declined comment to Castanet.

Now out on bail, Davis said he is once again trying to work with the Crown prosecutor to obtain disclosure, which includes a summary of the Crown’s case and statements from witnesses that will be used in the trial.

What is owed?

Robert Diab, a professor at Thompson River University's Faculty of Law, said that aside from providing a self-represented accused person with full disclosure, the Crown is not bound to work with them.

“Their job is to prosecute the case, and their only duty is to provide full disclosure and to conduct themselves, in accordance with fair trial rights,” he explained.

This would include a list of the witnesses they intend to call, a brief summary of the evidence they anticipate those witnesses will provide, for example.

“Any material evidence, they're going to call with a description of it just so that they don't ambush him. They can't conduct a trial by ambush.”

Damienne Darby, communications counsel for the BC Prosecution Service, said they cannot provide "direct assistance to an accused person regarding the conduct of their matter."

Darby added that Crown lawyers “must exercise caution when dealing with unrepresented accused.”

They will often encourage these individuals to seek the advice of private counsel or duty counsel.

Darby added that if an accused declines to seek outside counsel and go independently, Crown counsel should arrange for a third person to be present during the discussions or conduct the discussions in writing.

Next steps

Now out on bail, Davis is banned from Penticton until the completion of his trial.

He still claims to struggle to get some of the evidence he believes Crown is using for his upcoming trial. He is also at the point of trying to get a Legal Aid lawyer appointment for representation since the self-representation route has been so limiting.

“It hasn't been a whole lot easier on the outside. The procedural morass, finding the right forms for motions and applications, and filing them, is time-consuming, confusing, and exhausting.”

This story will continue in Part 2 of the series, which dives into the challenges of self-representation. Look for it on Tuesday morning.

Photo: Casey Richardson

Anthony Davis displays one of his hand-written letters to the Crown counsel from when he was behind bars, which he claims went unanswered.