Plea for new justice system

This is part three in a series of three articles about the pitfalls of legal representation from behind bars in Canada. Read part one here and part two here.

A Penticton man’s struggle to represent himself in court has legal experts questioning what can be done to improve the system, and rights established in the constitution.

Anthony Davis was recently charged with criminal harassment, disobeying a court order and breach of an undertaking. He has not pleaded guilty and intended to represent himself during a trial, spending much of this past year behind bars.

The 64-year-old is no stranger to the justice system — he was convicted of criminal harassment multiple decades ago in Manitoba, for which he blames his lawyers, and in 2002 successfully defeated a further charge by representing himself in a jury trial.

This time around, Davis said he has encountered multiple roadblocks to self-representation, especially while incarcerated.

One of the main hindrances was the prison denying inmates access to computers and the internet, aside from a decades-old computer that only has access to one website — the Canadian Legal Information Institute, colloquially known as CanLII — which meant much of the research for his case was a struggle.

“I'm hoping that OCC and perhaps other prisons in BC, if not across the country, realize that there are more and more self-represented litigants or persons,” Davis said.

“How can I represent myself without that basic function to go look for my emails or to send emails to potential witnesses? I can't. It's impossible, but this rule cannot trump a charter right. But it did every single day.”

The National Self-Represented Litigants Project focuses on access to justice, providing resources and advocating for civil justice reform, researching issues involving self-representation in the legal system.

Their executive director, Jennifer Leitch, said there needs to be a paradigm shift that confronts the idea that more criminal trials are having self-represented litigants.

“Then we start to say, ‘Okay, how do we facilitate their participation?’” she added.

Leitch said there should be a way for Corrections Canada to provide limited access to resources so that an individual can begin to build their own case.

“It's almost a little mind-boggling to think that that's not available, right?”

Roadblocks along the way

The executive director of BC’s Prisoners Legal Services, Jennifer Metcalfe, told Castanet that the challenges faced by inmates in BC's provincial prisons, including limited access to counsel, internet, and legal resources, hinder self-representation in court.

“I think people who are incarcerated should have access to the internet and to email. Maybe there needs to be limits on what sites they can visit and there is that technology available to do so,” she said.

“They monitor mail and other kinds of communications, and so there's no reason why people couldn't have access to email and for it to be monitored as appropriate to protect the public safety.”

Metcalfe said it's clear there’s a definite gap in services.

“It's important to improve people's access to justice, to be able to self-represent, but I also think it's really important for there to be enough legal aid for people to be represented [in the way they want.]”

One main complaint from Davis while behind bars was that while lawyers and their clients are given a confidential phone line to communicate on, he was not offered this as his own representative when trying to phone witnesses.

“For me, as a self-represented person, that presented a problem, and that's the problem of privilege,” he explained.

“Everything I did would be monitored, which meant I had my right to privilege as my own defence lawyer was gone, and that meant that, potentially, if the Crown wanted, they could listen in to everything I said.”

“I talked about the need for private phone calls with Crown counsel. Not on any occasion was I ever given a chance to privately phone the Crown to ask questions.”

Improvements are a big feat

Robert Diab, a professor at Thompson River University's Faculty of Law, said changes to the system unfortunately are not simple.

“I don't know what changes they could make to the prison to facilitate communication with people, between prisoners and people on the outside who are not counsel that wouldn't be abused, that wouldn't be used to contact criminal conspirators, to harass victims,” he said.

Davis claimed he spoke to Legal Aid and asked if they could help him by providing support with the aid of a defence lawyer in filing motions and Crown communication, while still being able to represent himself in the courts, which was denied.

Legal Aid declined comment to Castanet.

Leitch said one of the things that NSRP advocates for is “unbundled legal services” through Legal Aid.

“Let's think about who needs full representation and who needs something less than full representation, but some sort of support. And not be afraid to sort of engage with a different delivery model,” she added.

But getting more funding to make this possible is easier said than done.

“It's always kind of a struggle to advocate for more money to go into prisons,” Metcalfe said.

One of the most recent changes to the provincial government introduced was Bill 21—the Legal Professions Act (2024)—into the legislature, stating that it would improve access to justice by lowering costs for British Columbians in need of legal assistance.

Soon after the bill was passed, the Law Society of British Columbia and Trial Lawyers Association of B.C. filed lawsuits to challenge the constitutionality of the bill. The Canadian Bar Association BC Branch also voiced opposition to the act.

The Law Society claimed the government has failed to fund the legal aid services the NDP promised in 1992 when enacting a seven-per-cent provincial sales tax on the provision of legal services.

Time for change?

Davis said he thinks it is about time the government takes a look at the system.

“The rules of the prison make no allowance whatsoever for self-represented individuals who want to do their own case for whatever reason they have. And I have good reasons, and it doesn't matter what my reasons are, it's a right. There's a fundamental right,” Davis said.

Since Davis was granted bail, he is banned from Penticton until the completion of his trial.

He is now at the point of trying to get a Legal Aid lawyer appointment for representation since the self-representation route has been, in his telling, so limiting.

“The mental anguish and despair of this situation has been very difficult…[and] is truly decimating.”