7. Unrepresented clients and clients with low literacy skills

Role of judges and tribunal members in assisting unrepresented parties

What happens when counsel is not provided or when a party chooses to proceed without counsel? What are the obligations of a judge or tribunal to assist the unrepresented party and ensure the fairness of the process? While the litigants in these cases do not necessarily have literacy issues, the cases are nonetheless instructive for illustrating the delicate balance that must be struck by courts and tribunal members in assisting parties while still remaining impartial. These considerations will become all the more acute if the administrative adjudicator suspects weak literacy skills.

The duty of a trial judge or tribunal member is first and foremost to ensure the fairness of the trial. This task is made significantly more difficult where an accused person or litigant appears unrepresented or self-represented. An impartial adjudicator is a fundamental component of natural justice and a partial adjudicator will have a negative impact on the administration of justice. As a result, tribunal members, as with judges, must attempt to deal with the difficult situation of assisting the unrepresented party by explaining the proceedings and ensuring fairness in the process, without crossing the line from neutral to biased arbiter.

• In R. v. McGibbon (1988), 45 C.C.C. (3d) 334 (Ont. C.A.) at p.347, the Court of Appeal for Ontario held that where an accused person is unrepresented by counsel, the trial judge may provide reasonable assistance to the accused in the presentation of evidence, putting any defences before the court and guiding the accused in such a way that his or her defence is brought out with its full force and effect. Specifically, the court held: “Consistent with the duty to ensure that the accused has a fair trial, the trial judge is required within reason to provide assistance to the unrepresented accused, to aid him in the proper conduct of his defence, and to guide him throughout the trial in such a way that his defence is brought out with its full force and effect. How far a trial judge should go in assisting the accused in such matters as the examination and crossexamination of witnesses must of necessity be a matter of discretion.”