
This is part two in a series of three articles about the pitfalls of legal representation from behind bars in Canada. Part one can be found here.
A Penticton man’s struggle with self-representing amidst recent criminal charges underscores the need for the justice system to adapt, according to experts in the field.
Anthony Davis, 64, was recently charged with criminal harassment, disobeying a court order and breach of an undertaking. He has pleaded not guilty and intends to represent himself during a trial, as is his constitutional right.
Whether he is guilty or not is for the courts to decide. But his legal right to self-represent is not always so easy. Some experts say taking on a case without a lawyer is a clear disadvantage.
“Lawyers tend to work better with other lawyers. They know the rules of the game, and they know how to engage with the judges and the clerks and the language is shared,” said Jennifer Leitch, executive director of the National Self-Represented Litigants Project.
“The stats [for self-represented individuals] aren't in their favour in terms of being successful or winning in a legal setting.”
Leitch said many of the self-represented their organization has helped in both civil and criminal courts end up feeling like outsiders.
“If you think about it, it's not so surprising. The system is kind of built for and by lawyers and judges, and if you don't have a legal education, you're going to be at a serious disadvantage, both procedurally, but also substantively, you just don't have a background in the law,” Leitch said.
Tough to prepare defence
Davis struggled to prepare behind bars. He is still, as of his last court appearance, awaiting confirmation of a Legal Aid attorney.
Castanet reached out to Legal Aid to request an interview or statement, and they stated they were unable to accommodate the request as they did not have anyone available to speak on this matter.
Leitch said one of the things her organization advocates for is “unbundled legal services” through Legal Aid.
“This would allow people to kind of almost look at a menu of services and then pick and choose what they would like to pay a lawyer to do for them, and then they do some of the other work on their own,” she said.
But, in her experience, there has not been a lot of buy-in from lawyers.
“I understand because it's difficult for lawyers to come in and out of files … I was a practicing litigator for a while. I'd rather have control over the file.”
Still, changes to Legal Aid remain necessary, she thinks.
“We need to have people who can access publicly funded lawyers to assist them, particularly in criminal matters. But we know there's not enough legal aid for everybody that needs it,” Leitch said.
Robert Diab, a law professor at Thompson River University, noted that the court system is designed to work best with counsel.
“So you're at a huge disadvantage, because you may have defences, either in terms of the substantive criminal law or the constitution, that won't be obvious and won’t be easy to figure out on your own if you don't have experience,” he said.
“I've also seen on a couple of occasions, people do a very impressive job of representing themselves, just doing absolutely fine on their own. So I don't want to create the impression that it cannot be done. In some cases, people can do just fine on their own.”
Easier on the outside
A Summerland man recently had success self-representing. Brad Besler managed to overturn his conviction for mischief at an appeal in 2023.
The big difference between Besler and Anthony’s self-advocating journey — Besler and his co-accused brother were never behind bars.
But there was still a lot of work that went into learning the court system.
“We had to make so many disclosure applications, and we had to make applications to vary our undertakings,” Besler said.
“Once you get more experience in the courtroom, you get the flow of the courtroom and the pace and the tone and that, so the more experience, the better you get at it.”
He noted that both the court registry and the judicial case manager were “very helpful.”
“I think it's important for self-represented [people] to go to those places and ask for help, say you're self-represented, and they usually will guide you, or at least show you the processes, and you can do your own research.”
Working with the Crown, for Besler, was not all that different from Davis'.
“Our personal experience was the first Crown [lawyer] who was on the case was withholding evidence and not playing it straight,” Besler claimed — a claim that has not been proven in court.
Even when a new Crown lawyer was appointed, Besler said communication, in his opinion, remained difficult.
“The Crown wouldn't even let us in the office, wouldn't even accept any documents from us for a month,” he said.
Davis has echoed the same concern.
He said letters sent to the Crown often bounced back and, while inside jail, only saw one or two perfunctory replies that were not helpful.
After overturning their charges, the Besler brothers went after the police and prosecutors involved, for wrongdoing during the investigation and ensuing trial.
The two were partially vindicated after a Civilian Review and Complaints Commission found RCMP acted incorrectly during their long-term investigation.
But the judge dismissed their claims of bad action on the Crown’s part, a decision Besler still disagrees with.
That said, he is proud of having represented himself.
“I think it's exposed me to how things are not always as they seem. The RCMP can be unethical when you would think the justice system was going to be fair,” Besler said.
“But if you're willing to fight for something and you really believe in it, and you know what happened, I think you gotta go for it.”
Harder for some
While Besler had success, Leitch said the case in general is that people who do not have lawyers are more likely to suffer worse outcomes in their litigation.
“There has to be this really fundamental shift in recognizing that self-represented litigants are here to stay, and the system has to confront that, and it has to figure out how it's going to deal with that in a way that allows those self-represented litigants to participate and represent themselves.”
This story will continue in Part 3 of the series, exploring what experts think should change. Watch for it on Wednesday morning.