Court of appeal says judges must do everything possible to help unrepresented people present their defence
Ian Mulgrew
Sun
Trials involving unrepresented defendants and the difficulties they pose for the legal system were highlighted Tuesday by a B.C. Court of Appeal ruling over a spectacular, motorcycle chase six years ago.
The three-judge panel of the province’s high bench unanimously said judges must bend over backwards to help the accused present a full defence.
Written by Justice Risa Levine, backed by colleagues Anne Rowles and Kenneth Mackenzie, the court overturned the motorcyclist’s conviction and ordered a new trial.
They said Amir Mahrokh Moghaddam, an Iranian immigrant, did not receive enough help from the Provincial Court judge who convicted him of dangerous driving.
Although the guilty verdict was later upheld by then-B.C. Supreme Court Justice Pamela Kirkpatrick, Levine said the unidentified lower court judge erred. Kirkpatrick was elevated last year to the Court of Appeal.
Cases such as this involving unrepresented participants are becoming more and more common and are an expensive nightmare.
Provincial government cuts to legal aid are mainly responsible for the increase in unrepresented defendants in the civil system.
Criminal support wasn’t affected by the cuts, but some accused are not eligible even though they cannot afford a lawyer while some are like Moghaddam, who chose to conduct his own defence.
The Legal Services Society initially provided counsel for him but that lawyer withdrew.
When the proceedings began Sept. 11, 2000, the judge offered to adjourn so counsel could be provided, but Moghaddam elected to proceed. The trial went on to squander three days of court time when a half-day should have sufficed.
In 2003, the court of appeal ordered the legal services society to pay for Moghaddam’s lawyer in the appeal court proceedings because the complexity of a criminal case today raised the question of whether he received a fair trial.
Occasionally an accused is adequately informed, but usually he or she does not have even the most rudimentary understanding of legal concepts. Mastering the substance and procedure of the law takes years.
Worse, it is not uncommon for the accused to have notions about the legal system derived from unrealistic television or movie portrayals.
A layperson, no matter how intelligent or earnest, generally is unequipped to conduct a trial.
I recently watched Mackenzie deal with an unrepresented litigant. It was an excruciating 45-minute waste of resources as the appeal justice dealt with the broke and not very bright man. A lawyer would have handled the issue in moments.
Proceedings involving lay participants usually take much longer, put more pressure on crowded dockets and are a drain on scarce legal resources.
Still, Moghaddam successfully argued before the appeal panel that the trial judge did not provide enough assistance to him so he could establish the two Mounties, the only witnesses, lacked credibility and were exaggerating.
Levine agreed for two reasons.
First, the trial judge did not allow Moghaddam to cross-examine the officers about events that that might have coloured their testimony.
Second, the judge did not explain clearly enough that Moghaddam could testify and give his version of events.
Levine thought Moghaddam could have raised a reasonable doubt about the officers’ credibility.
The court was told that on Sept. 17, 1999, at about 8 a.m., a Mountie on routine patrol saw a motorcycle stopped in a no-stopping area in front of an elementary school.
He pulled over and got out of his cruiser, gesturing to the motorcyclist on the other side of the street. But the motorcycle sped away.
The Mountie gave chase and was soon joined by another cruiser.
The two officers described the motorcyclist driving at high speeds, failing to stop at two lights, travelling the wrong way on a one-way street and thus forcing other vehicles to take evasive action, driving through a shopping centre parking lot and forcing pedestrians to scatter, and escaping on foot when six police cars had him surrounded.
The total pursuit lasted about 30 minutes, ending in Moghaddam’s arrest after a short foot chase.
At the station, Moghaddam’s face was rammed up against a glass partition by one of the cops. Moghaddam later confessed.
Moghaddam alleged he was beaten by the officers, had no contact with counsel and was intimidated into his admissions.
At the trial, an interpreter was sworn to translate the proceedings from English to Farsi; nevertheless, much was conducted without translation.
From the transcript, Levine said Moghaddam’s English clearly was not fluent, but he made himself understood.
In the cross-examination of the officers he did conduct, Moghaddam was fairly effective in pointing out inconsistencies between their evidence and their report to Crown counsel.
On Jan. 30, 2000, eight months before the Provincial Court trial, one of the Mounties went to Moghaddam’s home and left Moghaddam requiring 13 stitches to his head.
The officer was formally reprimanded.
Moghaddam should have been allowed to tell the court about that incident, Levine said.
“For that reason alone, I would allow the appeal,” she wrote.
Hard to disagree — this ruling, however, underscores not only the heavy expectations being placed on judges because of unrepresented defendants, but also the concomitant costs.
© The Vancouver Sun 2006
