Access to Justice is always a live and relevant issue: people with limited financial means are at risk to not having legal representation compared to those who can easily afford it. Legal Aid alleviates some financial pressure off impoverished accused in Criminal Court, however, unless the Crown is seeking a jail sentence, it is nearly impossible to have assistance from Legal Aid to fund a defence. That means an accused must represent themselves, or, pay out of pocket for a lawyer. And if paying out of pocket for a lawyer is not possible, the accused has no other choice but to defend themselves against the power and resources of the State and Police.
However, Legal Aid does not assist those that are accused of offences under the Provincial Offences Act, like careless driving. So an accused must represent themselves or hire a lawyer or paralegal to assist them by paying out of pocket. Thankfully, in a well-reasoned decision, the Ontario Court of Appeal in R. v. Allahyar 138 O.R. (3d) 233 has held that family members or friends, can represent the defendant in Provincial Court (with regards to Part I offences under the Provincial Offences Act) despite the fact that the individual does not have any legal training whatsoever:
Questions of competence must be addressed having regard to the context. Specialized training is not necessarily required before an unpaid family member or friend can represent an accused or defendant in a provincial offence appeal before the O.C.J. Attending court can be difficult and intimidating for an accused at any level of court. Having a friend or family member attend and assist can be invaluable and is consistent with ensuring access to justice.
Mr. Allahyar’s mother tongue was not English, and the Court found that his brother-in-law, Mr. Miazad was competent and diligent in assisting Mr. Allahyar in all of the court proceedings. Mr. Allahyar was charged with speeding contrary to Highway Traffic Act, and ultimately, the Court of Appeal stayed the charges against Mr. Allahyar in it’s decision (he was not convicted).
At the first level of appeal after the Provincial Court, the Ontario Court of Justice, the appeal judge explicitly cited concerns about non-legally trained individuals litigating in court and stated:
I’m not going to hear the matter with Mr. Miazad as agent for the appellant. At an appeal level, one
would hope that [at] a minimum there’s an agent and that’s not Miazad’s situation. I’m becoming more and more concerned about individuals representing individuals in criminal or quasi-criminal or Provincial Offences Act matters that aren’t properly trained. It’s inappropriate, in my view, for the court to permit Mr. Miazad to represent the applicant on this appeal.
However, the Court of Appeal held that the appeal judge made an error in law when he disqualified Mr. Miazad from representing Mr. Allahyar because he failed to consider if the proper administration of justice was protected when Mr. Allahyar’s choice of representative was prohibited.
While the Court of Appeal still holds that each case must be assessed on a case-by-case basis, the decision serves as an important consideration of access to justice issues that are prevalent in all levels of court, even for speeding tickets. While the flood gates are not open for any and all family members or friends to assist a defendant, the Court of Appeal has strongly endorsed the possibility of non-legally trained representation for individuals charged under Part I of the Provincial Offences Act. This decision gives everyone who’s charged a notable alternative to traditional legal representation.
Many lawyers will express concern about a free and fair market for services rendered (because, despite the stigma, we have to make a living too). However, the critics that argue against an option for defendants to be represented by non-legally trained individuals fail to realize that many people simply cannot afford to hire a lawyer under any circumstance. In addition, lawyers’ and even some paralegals’ fees often total more than what an individual would be fined for pleading guilty to a Part I Provincial Offences Act offence at the outset— which of course fails to make sense to many people who have limited financial means. When it comes to legal representation and when an individual’s rights’, well being, life and freedoms are at issue, the impact of access to justice on the capitalist market should be of little concern to all. Simply put, when justice prevails, we are all winners.