ACCORDING TO POLICE OFFICERS, motorist Matthew Duncan resisted arrest. Was a crime actually committed? Mr. Duncan said “no”, and made his case forcefully, first, to the officers; and then to the Ontario Court of Justice, before which he represented himself. In the entertaining judgment of Justice Fergus ODonnell in R v. Duncan the issue of guilt or innocence is resolved, after a long journey through what the court referred to as a “hodgepodge of irrelevancies”.
Mr. Duncan’s problems began when, during the early morning hours, he turned his car into the parking lot of his apartment building without first signaling his intention to do so. Unfortunately for him police officers witnessed the alleged transgression, and requested that Mr. Duncan identify himself. Thereafter the stories of the officers and Mr. Duncan diverge, with the former maintaining that no identification was provided, that warnings were given, that an arrest was attempted, and that resistance was presented; and with the latter denying the allegations.
The proceedings at court were described by Justice ODonnell in Alice-in-Wonderland terms. Given that Mr. Duncan raised a host of jurisdictional issues, all of which were found to be meaningless, what could have been a quick trial was not completed at the end of the first day. The judgment makes clear that this was a waste of everyone’s time, and Justice ODonnell notes with amused frustration what he characterized as the case’s “slight detour through territory that might have confused Lewis Carroll”.
Mercifully, despite Mr. Duncan’s presentation, the Court determined that the charge should be dismissed, not because of the jurisdictional issues that Mr. Duncan had exhaustively presented, but because there was no legal basis for the underlying arrest. The court found that there was no need to have signalled a turn because of the absence of traffic in the vicinity at the time of the incident and therefore, as there was no basis for the arrest, Mr. Duncan was entitled to resist it.
It seems that, in his verbal perambulations, Mr. Duncan “momentarily hit upon the concept that would ulimately lead to his acquittal”. In describing the proceedings, the Court referred to the old adage about a room full of monkeys typing on a room full of typewriters from which is eventually produced the great Canadian novel. Justice ODonnell was careful, however, to explain that Mr. Duncan, who was described as a “rather pleasant young man” was not actually being likened to a monkey.
An experienced criminal lawyer might have negotiated the same or a better resolution to this matter early on, without the need of a trial. Had one been retained, a lot of time and energy invested in the proceedings could have devoted to more useful pursuits, not only by Mr. Duncan, but also by the Court, court staff and the prosecutor. In the end, while this case turned out well for Mr. Duncan, it should be noted that he had the prospect of the court proceedings hanging over his head for a protracted period both pending the trial and its resumption on a second day, and that he would appear to have missed at least two days of work to attend it. Still, most self-represented litigants do not fare so well as he did.
Last spring a report on the subject of the “doing it yourself” was released by Dr. Julie Macfarlane, a lawyer and professor at the University of Windsor’s law school. It concluded that there were a “range of negative consequences experienced” by the self-represented litigant:
These include depletion of personal funds and savings for other purposes, instability or loss of employment caused by the amount of time required to manage their legal case themselves, social and emotional isolation from friends and family as the case becomes increasingly complex and overwhelming, and a myriad of health issues both physical and emotionally. The scale and frequency of these individually experienced consequences represent a social problem on a scale that requires recognition and attention. The costs are as yet unknown.
To these consequences of not retaining counsel might be added another: the absence of legal analysis and context in the presentation of the case can cause the justice of the self-represented litigant’s position to be obscured or missed altogether. In other words, their case may not be heard.
Self-representation is growing in the courts and before administrative tribunals, to the exasperation of judges and opposing counsel who must try to be fair even though they may be unable to understand the direction, the relevancy or even the nature of the argument being advanced. Retaining counsel to make one’s argument is rarely inexpensive, but it has the virtue of allowing litigants to effectively participate in the proceeding. Often a settlement-oriented approach, informed by a knowledge of the relevant law, can not only allow one’s story to be properly heard, but save time and money as well.
Still, despite its problems, self-representation has been actively promoted by Citizenship and Immigration Canada in documentary proceedings, such as those involving skilled worker or sponsorship applications. Sometimes, as was the case for Mr. Duncan, things may work out in the end. In other cases they do not, serious injustices are done, and the damages to families and futures becomes permanent. When you represent yourself, you spin the wheel, and you take your chances.