03 December 2011

Supreme Court Releases Decision on Agents Appearing in Court

The British Columbia Supreme Court has just released a decision, in the case of Ambrosi v. Duckworth, on the right of parties to have people other than lawyers appear in court on their behalf.

The problem arises from s. 15(1) of the Legal Profession Act which says that "no person, other than a practising lawyer, is permitted to engage in the practice of law;" s. 85 of the act makes it an offence, punishable under the Offence Act, to contravene s. 15. The Legal Profession Act offers a few exceptions to this general prohibition:
  • a party to an action may represent him- or herself;
  • any person who is entitled to vote in British Columbia may represent someone if the narrow criteria of the Court Agent Act apply (if there are fewer than two practising lawyers in town or if there are fewer than two lawyers with offices within 8km of the courthouse);
  • a non-lawyer employed by the Legal Services Society may represent someone within the limits of s. 12 of the Legal Services Society Act; and,
  • an articled student may represent someone to the extent permitted by the Law Society.
However, regardless of the Legal Profession Act, the court has the inherent right to control its own process and may, on a case by case basis, allow a non-lawyer to represent someone. That was the issue in Ambrosi when the applicant asked the court for leave for someone to speak on his behalf and present his application.

The judge began his analysis by looking at a 2002 case from the Court of Appeal, R. v. Dick (I've put the important bits in bold):
"[6] The Crown raised a preliminary objection ... and brought to our attention several reasons why [the proposed agent] should not be accorded the privilege of audience. We use the word 'privilege' advisedly, there being clear authority for the proposition that, subject to statutory provisions otherwise, it lies within a court's discretion to permit or not to permit a person who is not a lawyer, to represent a litigant in court. In particular we note the judgment of Lord Denning in Engineers' and Managers' Association v. Advisory, Conciliation and Arbitration Service et al. ... where it was said that the discretionary power to grant a privilege of audience to other persons should be exercised 'rarely and with caution' ...

"[7] There are strong public policy reasons for this general rule. Each court has the responsibility to ensure that persons appearing before it are properly represented and (in the case of criminal law) defended, and to maintain the rule of law and the integrity of the court generally. As was said by the Ontario Court of Appeal in R. v. Romanowicz ... :

'The power to refuse audience to an agent must be invoked whenever it is necessary to do so to protect the proper administration of justice. The proper administration of justice requires that the accused's constitutional rights, particularly the right to a fair trial, be protected. It also requires the fair treatment of other participants in the process (eg. witnesses) and that the proceedings be conducted in a manner that will command the respect of the community.

'It is impossible to catalogue all of the circumstances in which representation by a particular agent would imperil the administration of justice and properly call for an order disqualifying that agent. Obviously, representation by agents lacking the ability to competently represent an accused endangers all aspects of the proper administration of justice, particularly the accused's right to a fair trial. Other examples where the administration of justice would suffer irreparable harm if an agent were allowed to appear are found in the material filed on this appeal. ... [There may be] situations in which the agent's criminal record or other discreditable acts are such as to permit the conclusion that the agent cannot be relied on to conduct a trial ethically and honourably.'"
To summarize this somewhat:
  1. The court has the discretion to allow an agent to represent a litigant.
  2. This discretion should be exercised with restraint, and should be exercised in bearing in mind the need to ensure that the litigant is well-represented, the rule of law is maintained and the integrity of the court is preserved.
  3. The court should refuse to allow an agent to act when necessary to protect the proper administration of justice. This might be the case where an agent is incompetent or is unlikely to conduct him- or herself in an ethical manner.
Although the applicant presented a number of good reasons why the agent should be allowed to represent him, including the prejudice to his right to a fair hearing, his constitutional right to freedom of expression, his entitlement to appear by an agent of his own choice, and his right to have access to justice, the respondent presented a lengthy body of court decisions reflecting poorly on the proposed agent's past conduct in court. Ultimately, the judge held that:
"[55] I have not been convinced that I should exercise my discretion to allow [the proposed agent] to appear as agent for Mr. Ambrosi. I am satisfied that it would not be in the interest of justice to allow [the proposed agent] to appear as agent. ... I am satisfied that Mr. Ambrosi can afford a lawyer if he wishes, or may even be able to find someone more appropriate to appear as his agent. ..."

2 comments:

  1. Just a note: the Legal Professions Act actually provides another huge exception when it is NOT prohibited to represent someone--that is when the representation is not done for gain. This is by virtue of the definition (s. 1(1)(h)of the Act) of the "practice of law," which specifically does NOT include "appearing as counsel or advocate" when not done for a fee, etc., either directly or indirectly.

    Of course, none of that changes the Court's inherent jurisdiction to regulate its procedure or the other legal arguments discussed in your post though.

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  2. This seems to be a lawyer invoked protectionist scheme adding to the backlog of the courts when para-legals, fjc's or other such trained persons could more suitably provide justice than the average unrepresented applicant, myself included.

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