Aug 29, 2014

When Can Non-Lawyer 'Agents' Appear in Court

R. v. Cox, 2013 NSCA 140 (CanLII)

Keywords: Criminal law; representation of accused by agent; s.684, s.800(2), and s.802.1Criminal Code.

Synopsis: The Appellant, Ms. Cox, was convicted of the indictable offence of assault causing bodily harm and sentenced to 28 months. Ms. Cox attempted to appeal her conviction and sentence on grounds she was not criminally responsible; had incompetent legal counsel; and fresh evidence had been discovered. Before doing so, the appellant (with the assistance of Lawrence R. Finck) filed a Notice of Motion entitled “Agency Agreement” between her and Mr. Finck, requesting Finck be appointed a legal advocate pursuant to s.684 of the Criminal Code. Mr. Finck is not, nor has ever been, a barrister or solicitor. An unsworn affidavit filed indicated Ms. Cox had entered into a contract with Finck to have him conduct her appeal (Cox had no intention of applying for legal aid). The agency agreement appointed Finck to act on Cox’s behalf as her ‘legal and investigative advocate’ authorizing him to act and speak on her behalf. The Application was denied.

Importance: This was not the first time Mr. Finck had come before the court concerning his right to appear as agent. In R. v Gouchie, 2006 NSCA 109 (while Mr. Finck was himself incarcerated) he was denied the right to appear as agent for an accused because he was not qualified. Relying on that decision, Justice Beveridge of the N.S.C.A (in chambers) reviewed the law concerning the role of agents in criminal proceedings, noting agents may play a limited participatory role in summary conviction proceedings. The right is not absolute and a court may require a defendant to appear personally or preclude an agent from appearing if the accused is liable to be imprisoned for more than 6 months. In appeals, s.684 of the Code gives discretion to appellate courts to assign counsel on behalf of an accused where in the opinion of the court it is ‘desirable in the interests of justice’. Counsel, is defined in s.2 of the Code, means “a barrister or solicitor” authorized to practise law. A court nonetheless, retains the authority to disqualify agents by virtue of its power to control its own process (noted as a fundamental value of the criminal justice system). Beveridge, J. concluded he possessed the jurisdiction to grant or deny Mr. Finck the right to appear as agent, and dismissed the application noting:

Mr. Finck did not just have a criminal record, but had demonstrated a lack of honesty and integrity; ignored court orders and admitted to lying in court…Suffice it to say, there was nothing he said that in any way dispelled the findings and observations made by a full panel of this Court about the inappropriateness of permitting Mr. Finck to act as an agent…his proposed assistance to Ms. Cox would be entirely inappropriate.” (at paras. 25, 32).