DATE: May 20, 2008
UPDATE: September 3, 2008
UPDATE: November 28, 2008
SUBJECT: THE CRITERIA AND PROCEDURE GOVERNING THE USE OF AGENTS IN CRIMINAL PROCEEDINGS
The Governing Legislation
The starting point must be that only licensed and insured lawyers who are members of a recognized provincial law society may practice law. Law society membership provides a measure of protection to clients/accused by requiring that members be legally trained, adequately insured, and bound by a code of ethics (in Alberta, member of the Law Society of Alberta are bound by the Code of Professional Conduct ). Moreover, the communications between a lawyer and client are protected by solicitor-client privilege.
In this regard, s. 106(1) of the Legal Profession Act, RSA 2000, c. L-8, provides as follows:
106(1) No person shall, unless the person is an active member of the [Law Society of Alberta],
- practice as a barrister or as a solicitor,
- act as a barrister or as a solicitor in any court of civil or criminal jurisdiction,
- commence, carry on or defend any action or proceeding before a court or judge on behalf of any other person, or
- settle or negotiate in any way for the settlement of any claim for loss or damage founded in tort.
A number of categories of individual are exempt from the general prohibition described in s. 106(1). The exceptions are listed in s. 106(2) of the Legal Profession Act.
106(2) Subsection (1) does not apply to the following:
- a student-at-law in respect of anything permitted to be done by the student-at-law in the course of the student-at-law’s service under articles or under the rules made pursuant to section 105;
- a person who holds an authorization granted under section 48 in respect of services provided within the scope of the authorization and in accordance with the rules under section 48, or a person who is deemed by the rules to hold an authorization under section 48 in respect of services provided in accordance with the rules;
- a professional corporation in respect of services performed while it holds a permit under Part 8 that is not under suspension;
- a person employed by an active member or professional corporation pursuant to a resolution of the Benchers under section 108 in respect of services provided by that person within the scope of that person’s employment and in accordance with the resolution;
- a university law student in respect of services permitted to be provided by that student by the rules that are provided in accordance with the conditions prescribed by the rules;
- a notary public in respect of services provided by the notary public in the exercise of powers conferred on the notary public by law;
- a public officer in respect of any acts performed by the public officer within the scope of the public officer’s authority as a public officer;
- a person who acts on the person’s own behalf in an action, matter or proceeding to which the person is a party;
- a person in respect of the preparation by the person of a document for the person’s own use or to which the person is a party;
- an officer or employee of a corporation, partnership or unincorporated body in respect of the preparation of a document for the use of the corporation, partnership or unincorporated body or to which it is a party;
- a person licensed as an insurance adjuster under the Insurance Act in respect of services provided by the person as an insurance adjuster;
- a person permitted by statute to appear as the agent of another person before a justice of the peace, the Provincial Court or a provincial judge in respect of services provided by that person as an agent;
- a person holding professional legal qualifications obtained in a country outside Canada in respect of services permitted to be provided by that person in accordance with the rules in giving legal advice respecting the laws of that country.
106(3) Subsection (2)(l) does not include a person who is disbarred.
(There are also certain legal tasks that may be performed by those who are not members of a recognized law society. These tasks are performed by individuals who are often referred to either as legal assistants or as paralegals, and who work under the supervision of a qualified lawyer who is ultimately responsible for their actions. These individuals are not the subject of this practice memorandum.)
There are also three sections of the Criminal Code of Canada that are relevant to the determination of whether an agent may act on behalf of an accused person.
- Section 800(2):
[a] defendant may appear personally or by counsel or agent, but the summary conviction court may require the defendant to appear personally and may, if it thinks fit, issue a warrant in Form 7 for the arrest of the defendant and adjourn the trial to await his appearance pursuant thereto.
- Section 802(2):
The prosecutor or defendant, as the case may be, may examine and cross-examine witnesses personally or by counsel or agent.
- Section 802.1:
Despite subsections 800(2) and 802(2), a defendant may not appear or examine or cross-examine witnesses by agent if he or she is liable, on summary conviction, to imprisonment for a term of more than six months, unless the defendant is a corporation or the agent is authorized to do so under a program approved by the lieutenant governor in council of the province.
In Alberta, Order in Council 334/2003 sets out the programs referred to in s. 802.1 of the Criminal Code.
- In this Order,
- ‘articles’ means any articling program provided to a student-at-law under the Legal Profession Act;
- ‘court worker’ means any person employed by any agency that has a service agreement with the Government of Alberta under the Criminal Court Worker Program;
- ‘defendant’ means a defendant referred to in section 802.1 of the Criminal Code (Canada) who on summary conviction is liable to imprisonment for a term of more than 6 months;
- ‘law student’ means a person enrolled in a course of studies at a university who, on successfully completing that course of studies, would be eligible to become a student-at-law;
- ‘legal services’ means appearing for a defendant or examining or cross-examining witnesses on behalf of a defendant;
- ‘student-at-law’ means a person who is a student-at-law as defined in the Legal Profession Act.
- For the purposes of providing legal services on behalf of defendants by agents, the Lieutenant Governor in Council approves the following programs:
- programs under which services of a legal nature are provided to defendant by
- Student Legal Services of Edmonton (SLS);
- Student Legal Assistance Association Society (Calgary);
- Calgary Legal Guidance;
- the Criminal Court Worker Program.
- The following persons are authorized to act as an agent of a defendant to provide legal services on behalf of the defendant:
- any student-at-law carrying out duties under that student’s articles;
- any law student carrying out the functions of a court agent under a program approved under section 2(b);
- any court worker carrying out duties under the Criminal Court Worker Program.
This policy addresses the narrow situation in which: the use of an agent is permitted by ss. 800(2) or 802(2) of the Criminal Code; the use of an agent is not prohibited by s. 802.1 of the Criminal Code (i.e., the accused is a corporation or is not liable, on summary conviction, to imprisonment for a term of more than six months: R. v. Spiry 2005 ABPC 309); and the accused wishes to be represented at trial by an individual who is not:
- a member of a recognized law society; or
- a person authorized to practice law by virtue of Order in Council 334/2003.
In such a situation, s. 106(2)(l) of the Legal Profession Act would permit the agent to represent the accused; but only “in respect of services provided by that person as an agent.” It is important to note that the right to appear as an in-court agent does not confer upon the agent the authority to go further and to engage in the practice of law: Pacer Enterprises Ltd. v. Cummings 2004 ABCA 28 at para. 14, R. v. Kubinski 2006 ABPC 172.
The Discretion of the Courts to Deny an Agent the right to an Audience
While the Criminal Code does not expressly allow courts to disqualify agents, courts may still deny an agent, who is otherwise permitted by the Criminal Code and the Legal Profession Act to appear, the right to represent an accused person. The basis for and extent of this discretion was described as follows by the Ontario Court of Appeal:
The Criminal Code does not expressly authorize the court to disqualify agents in summary conviction proceedings. Nonetheless, we are satisfied that the power to do so along the lines found in the provincial legislation exists by virtue of the court's power to control its own process in order to maintain the integrity of that process. The power of the criminal trial court to control its process was described as a fundamental value of the criminal justice system by La Forest, J., in Canadian Broadcasting Corp. v. New Brunswick (Attorney General),  3 S.C.R. 480; 203 N.R. 169; 182 N.B.R.(2d) 81; 463 A.P.R. 81; 110 C.C.C.(3d) 193, at p. 208 [C.C.C.]. In describing the power, he said:
The first such value is the power vested in courts of criminal jurisdiction to control their own process in furtherance of the rule of law. This was recognized in United Nurses of Alberta v. Alberta (Attorney General),  1 S.C.R. 901; 71 C.C.C.(3d) 225 (S.C.C.), where McLachlin, J., noted that '[t]he rule of law is directly dependant on the ability of the courts to enforce their process and maintain their dignity and respect' (p. 931).
The authority of the criminal trial court to control its own process has been recognized both where the court exercises a discretionary power granted by the Criminal Code and where there is no statutory authority for the court's action. For example, it has been held that criminal courts have the power to appoint counsel, to exclude persons from the courtroom, to prohibit publication of proceedings, to control access to court records and to prohibit the publication of information identifying a witness or a party to criminal proceedings: R. v. Rowbotham, supra, at p. 69 [C.C.C.]; R. v. Laws (D.) (1998), 112 O.A.C. 353; 128 C.C.C.(3d) 516, at p. 528 [C.C.C.] (C.A.); MacIntyre v. Nova Scotia (Attorney General) et al.,  1 S.C.R. 175; 40 N.R. 181; 49 N.S.R.(2d) 609; 96 A.P.R. 609; 65 C.C.C.(2d) 129; 132 D.L.R.(3d) 385, at p. 149 [C.C.C.]; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra; Canadian Broadcasting Corp. v. Dagenais et al.,  3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81; 94 C.C.C. (3d) 289.
The now well-established authority of a criminal trial court to stay proceedings that constitute an abuse of process is perhaps the most dramatic example of the court's power to control its own process so as to maintain the rule of law and the integrity of the court: see R. v. Young (1984), 3 O.A.C. 254; 13 C.C.C. (3d) 1, at pp. 26-32 [C.C.C.] (C.A.); R. v. Jewitt,  2 S.C.R. 128; 61 N.R. 159; 21 C.C.C. (3d) 7;  6 W.W.R. 127; 20 D.L.R.(4th) 651; 47 C.R.(3d) 193, at p. 14 [C.C.C.]; R. v. Keyowski ,  1 S.C.R. 657; 83 N.R. 296; 65 Sask. R. 122; 40 C.C.C. (3d) 481; 32 C.R.R. 269; 62 C.R.(3d) 349;  4 W.W.R. 97, at p. 482 [C.C.C.]. The power to stay proceedings as an abuse is not found in the Criminal Code, but is instead inherent in the role played by the courts as the ultimate guardians of the rule of law and the integrity of the criminal justice system.
A power to deny audience to an agent whose participation in proceedings would either damage the fairness of those proceedings, impair the ability of the tribunal to perform its function or otherwise undermine the integrity of the process is entirely consistent with the exercise of the power recognized in the authorities referred to above. Surely, representation by an agent who has been shown to be incompetent or disreputable can imperil the accused's right to a fair trial and can undermine the integrity of the proceedings just as much as if an accused who was incapable of representing himself were required to proceed without counsel. (R. v. Romanowicz (J.) (1999) 124 OAC 100 (Ont CA) at paras. 58-61. See also Pacer Enterprises Ltd. v. Cummings, supra, at para. 13.)
As to the circumstances in which a court should refuse audience to an agent, the Court of Appeal stated (at paragraph 73) that:
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.
And finally, while it would be impossible to articulate all of the possible factors that are relevant to this issue, some of the factors that courts have considered in determining whether to refuse audience to an agent include the following:
- whether the agent has the ability and/or training to competently represent the accused;
- the background and character of the agent (including any criminal history, and any demonstration of dishonesty, lack of good character, or disrespect for the law or the rules governing the proceedings);
- any conflict of interest (e.g., the agent has a special relationship with the accused, complainant or a witness)
- whether the agent is offering its services for a fee;
- whether the denial of the application would effectively deny the accused the benefit of any representation;
- the circumstances of the case (e.g., the seriousness of the charges, the complexity of the issues;
- whether the accused has made an informed choice to forego representation by counsel and is aware of the significance of this decision (e.g., unlike the Crown prosecutor, the agent is not a qualified lawyer; the agent is not bound by any professional standards; the communications between agent and client are not protected by solicitor-client privilege).
(See R. v. Romanowicz (J.), supra, at paras. 73-84, Pacer Enterprises Ltd. v. Cummings at para. 13, R. v. Kubinski, supra, R. v. Spiry 2005 ABPC 309)
Every agent must apply to the court for the right of audience. This does not mean, however, that a trial judge is obligated to conduct a detailed inquiry into the competence and background of every agent in every case. In some situations, the agent will be known or the basis for the agent’s appearance will be obvious (e.g., he or she is working within a program referred to in Order in Council 334/2003), and an inquiry is unnecessary or very brief.
In other situations, and in particular those situations in which the proposed agent intends to seek an audience on the basis of s. 106(2)(l) of the Legal Profession Act, a detailed inquiry will be necessary in order to determined whether the agent should be granted an audience.
To best protect the proper administration of justice, including protecting the accused’s constitutional right to a fair trial, Crown prosecutors must be proactive in assessing the propriety of an agent representing an accused. This does not mean that Crown prosecutors should routinely apply to disqualify agents; rather, Crown prosecutors must satisfy themselves that the use of an agent will not be contrary to the proper administration of justice and, in particular that the accused’s constitutional right to a fair trial will be protected.
Upon a Crown prosecutor learning that an accused intends to be represented by an agent, the prosecutor should take the following initial steps.
- Determine the precise basis upon which the agent seeks an audience.
- Confirm that the offence(s) are such that the Criminal Code permits representation by agent (i.e., that the accused is a corporation or is charged with summary conviction offence(s) that, on conviction, could not result in a total sentence of greater than six months imprisonment per offence).
- Assess whether the agent intends to engage in activities that would constitute practicing law.
- Mindful of the factors outlined above, assess whether there is any basis to be concerned about the use of the proposed agent. In this regard, Crown prosecutors are encouraged to consult with colleagues who may have had experience in respect of the particular agent or in respect of the issue generally.
Crown prosecutors should ensure that, before the commencement of the trial, the court is made aware that the accused intends to be represented by an agent and should articulate the Crown’s position as regards whether the agent should be permitted an audience.
- In many cases, the Crown may have no objection to the use of an agent and the issue may be efficiently dealt with in court immediately prior to the calling of evidence.
- Other times, and in particular if the Crown intends to oppose the use of the agent, the court should be alerted to the issue in advance of the trial date. This will allow for time to be set aside for a separate hearing of an application by the agent to appear. In such cases, the Crown prosecutor should alert the court as to the nature of the Crown’s concern (e.g., the offence(s) are such that an agent is not permitted to appear, the agent will be practicing law, the use of the agent would be contrary to the proper administration of justice).
Finally, as the issue is a sensitive one that engages many competing interests, Crown prosecutors are reminded of the benefits of consulting with colleagues, especially at the stage at which the determination is being made as to what position to take vis-à-vis the propriety of an agent representing the accused in the particular case.