Want to represent yourself in court? Feeling worried or intimidated?
• Consider attending a workshop with members of Contempt of Court: A Legal Clinic by and for Social Movements on defending yourself in court. E-mail us at email@example.com if you’re interested in a workshop.
• Also consider asking to be allowed a “McKenzie Friend” in your trial. Detailed info about McKenzie Friends follows.
What is a “McKenzie Friend”?
A McKenzie Friend is a friend you choose to sit and stand by your side in court, instead of in the public gallery. The person is chosen in advance, and can talk with you or help you take notes. A McKenzie Friend is not a lawyer, and cannot offer legal advice nor address the judge directly.
Why have a McKenzie Friend?
Standing up in front of a courtroom and addressing the judge and prosecuting lawyers can be difficult even for trained lawyers. A McKenzie Friend can make the experience of representing yourself in court less intimidating. Self-representation is less isolating of an experience with a friend involved. Even if you do feel confident representing yourself in court, a McKenzie Friend still provides advantages, including freeing you from note-taking and other distractions.
Keep in mind that during a trial, if you are representing yourself you are not entitled to have friends sit beside you, nor can you consult friends in the public gallery during the trial (only during breaks). So, by having a McKenzie Friend, you can ensure having someone you’ve chosen and trust beside you during all legal proceedings, someone you can consult during the actual proceeding, not just during breaks.
Why is it called a “McKenzie Friend”?
The concept originated in Scotland in a 1970 divorce case called McKenzie versus McKenzie. One of the McKenzies couldn’t afford a lawyer, but was given permission to have a non-lawyer support them through the proceedings. This precedent established the arrangement that came to be known as a McKenzie Friend.
However, one Montreal anarchist activist active is legal self-defense first heard about the idea of a McKenzie Friend when reading the book Poll Tax Rebellion by Danny Burns (AK Press 1992, available online: https://libcom.org/files/poll-tax-rebellion.pdf). The book — an activist account of the resistance to Margaret Thatcher’s regressive “community charge” or “poll tax” — makes reference to McKenzie friends. One section of the book describes support for individuals who refused to pay the poll tax (“non-payer”) and were facing charges in the courts:
« By October 1990, when most of the court cases had started, virtually every Anti-Poll Tax Union in the UK has trained at least two or three of its members to become conversant with the Poll Tax law. Throughout England and Wales over a thousand people were trained to do court support work and could quote the relevant legislation. This is unique in the history of popular campaigning. The Anti-Poll Tax Unions hoped to use the legal precedent of McKenzie versus McKenzie (1970) which said that a person can “attend a trial as a friend of either party (to) take notes and quietly make suggestions and give advice to that party.” This person would be known as a “McKenzie friend”. McKenzie friends had no right to address the court, but they could advise the non-payer what to say. In this way everyone would be able to offer technical defences and thereby delay the proceedings. » (pp. 135–36)
This example of radical, anti-capitalist rebellion in the UK inspired the idea of “importing” the McKenzie Friend to Montreal for activist-minded court defense.
What’s the difference between a McKenzie Friend and a lawyer?
A McKenzie Friend is neither paid — they’re your friend and supporter, you’re not their client — nor do they provide legal advice. Unlike a lawyer, a McKenzie Friend can’t address the court – you, as a self-represented defendant, will still have to do that – but they can at least provide you with information about what you can say and be there for general moral and personal support.
What’s the difference between a McKenzie Friend and a “friend of the court”
A “friend of the court”, or amicus curiae in Latin, is a legal term for a lawyer who assists the court, rather than being retained by either of the adversarial parties (i.e. the prosecution or the defence). Often in criminal matters when there is a self-represented accused, the judge will permit a “friend of the court” to offer basic legal assistance, but technically the accused represents themselves. While the “friend of the court” can address the judge as a lawyer, they don’t make pleadings on behalf of the accused, who is not their client
By contrast, a McKenzie Friend is not a “friend of the court” but rather a non-lawyer who assists a self-represented defendant, but can’t address the judge directly.
If you can convince a lawyer to be your “friend of the court” for free (a “friend of the court” can’t be paid, otherwise you become their client), great, that means you can self-represent yourself while also having a lawyer help you at the same time. But, unfortunately, most lawyers can’t afford to spend full days in court acting as a “friend of the court” for free.
Do we still have to call it a “McKenzie Friend”? Can’t we call it something else?
We can call it whatever we want. Use your own last name and call it a “Lopez Friend”, a “Chan Friend”, or whatever you prefer. The essential thing is for everyone involved, especially the judge, to understand the role played by this “friend”.
For the time being, we use the term “McKenzie Friend” to describe a non-lawyer friend who assists a self-represented defendant, with the right to sit and stand beside them, and converse with them, but without the right to address the court directly or offer legal advice. If a consistent practice begins to be established more widely in the Montreal courts, then perhaps a new name will emerge.
Have McKenzie Friends been used in Canadian or Quebec courts?
There are references to the use of McKenzie Friends in other jurisdictions in Canada, but there is nothing that sets a clear precedent that is widely used across the country or in Quebec. The legal system does not go out of its way to provide information about McKenzie Friends because it undermines the role of lawyers and further empowers self-represented defendants.
Here are some of the references to McKenzie Friends in other jurisdictions:
• the Alberta Rules of Court section 2.23 explicitly allows McKenzie Friends;
• the Saskatchewan Court of Queen’s Bench allows McKenzie Friends, so long as the friend isn’t just feeding the person every sentence they say 2011 SKQB 197);
• similarly, Manitoba courts permit a “person who is present in court in order to lend assistance to a self-represented litigant, without fee and on an isolated occasion… depending, of course, on the nature and extent of the assistance” (Moss v. NN Life Insurance Co., 2004 MBCA 10).
Here are the cases we know about in Montreal :
- 2003 / 2004 – Judge Fontaine – Montreal Municipal Court
A self-represented defendant was permitted to have a McKenzie Friend, who sat beside him at the defense table, for the entirety of a criminal trial. The McKenzie Friend was also allowed to speak with the defendant.
- June & November 2014, January 2015 – Judge Brière – Montreal Municipal Court
The presiding judge allowed at least two activists, over the course of several pro forma hearings, to act as McKenzie Friends for several accused with P-6 tickets. The McKenzie Friends were able to speak with defendants during proceedings.
- December 2014 – Judge Asseraf – Montreal Municipal Court
A self-represented defendant was allowed to consult a McKenzie friend in relation to a P-6 ticket defense.
- January 2015 – Judge Discepola – Montreal Municipal Court
A McKenzie Friend was permitted to support a self-represented activist who was making an unreasonable delay motion. The McKenzie Friend was able to speak with the defendant.
- Spring 2015 – Juge Laberge – Montreal Municipal Court
An activist was permitted to have a McKenzie Friend during a trial related to a P-6 ticket.
- September / October 2016 – Judge Richmond – Montreal Municipal Court
A McKenzie friend supported a self-represented defendant who challenged fingerprinting by the City of Montreal for summary offenses. The McKenzie friend was allowed to sit beside the defendant, and to speak with him.
We don’t know whether other McKenzie Friend requests have been made, and if they have whether they were accepted or refused. If anyone has experience or info, contact Contempt of Court: A Legal Clinic By and For Social Movements so we can update this document.
I want to have a McKenzie Friend, where can I find one?
Anyone who you trust and choose can be your McKenzie Friend. You can also ask someone who might have had experiences representing themselves in court to act as your McKenzie Friend. You can contact Contempt of Court: A Legal Clinic by and for Social Movements for suggestions. Some members of Contempt of Court and allied individuals have indicated they would like to support self-represented defendants as McKenzie Friends.
Can I be a McKenzie Friend?
Yes, anyone chosen by a self-represented defendant can be a McKenzie Friend. Importantly, a McKenzie friend is not someone who needs to have specialized knowledge, but someone comfortable providing basic support to a friend defending themselves in court. Depending on the situation, the McKenzie Friend can help you research and prepare ahead of your hearings, or be part of a team of “McKenzie Friends” who help on a particular matter. Given enough interest, Contempt of Court: A Legal Clinic by and for Social Movements will help organize workshops on acting as a McKenzie Friend. For us, it’s important that McKenzie Friends are people supporting self-represented defendants as volunteers (ie. charging no money whatsoever).
Why should we care about McKenzie Friends?
By setting a clear precedent allowing McKenzie Friends in the courts, more people might feel empowered to represent themselves (right now, many people end up choosing a lawyer, often lawyers they don’t really trust, because they are disempowered and too intimidated to represent themselves, and others will just plead guilty and pay their fine or do community service to avoid a courtroom appearance). The widespread use of McKenzie Friends might also provide for some interesting and disruptive legal defense strategies (on the model of the Poll Tax Resistance in the UK in the early 1990s). For some matters — small claims court, tickets for by-law infractions, or minor criminal charges — a McKenzie Friend might be all you need to tip the scales against the state.
Lawyers must take an oath of allegiance and an oath of office, which includes upholding the legal system as it stands. Self-represented defendants and McKenzie Friends are not constrained by the same obligations to respect the legal system, and that provides more grassroots activist options to fight back when they are criminalized by the system.
I’m dealing with a court matter; how do I go about making sure I can have a McKenzie Friend?
During one of your preliminary court hearings known as a “pro forma”/“conférence préparatoire”, tell the judge that you will be representing yourself, and that you would like to have a friend beside you who will assist you with note-taking and preparation, but who isn’t a lawyer.
If it’s useful to you, here’s a basic script that you can use and modify:
I am going be representing myself in this matter. However, for various reasons, I would like to have what’s known in the UK legal system as a “McKenzie Friend”. Basically this person is someone who sits beside me. They are a non-lawyer who will help me with note-taking, organizing my files, and who I will consult with from time-to-time. This person, who I will choose, won’t address the court, but they’ll be beside me to assist me and support me. This is very important to me, and it helps me to effectively represent myself in this serious matter. This has been permitted before, in the courtroom of Judge Fontaine of Montreal’s Municipal Court in 2003 during a criminal trial, and most recently by Judge Asseraf, also of Montreal’s Municipal Court, during a P-6 ticket trial that will proceed in April 2015. Thanks for considering my request.
You can also approach the prosecutor in advance of the hearing and mention to them that you want a McKenzie Friend. In the case of the P-6 ticket trial with Judge Asseraf, the prosecutor did not object to the defendant having a McKenzie Friend.
When you first bring up the idea of a McKenzie Friend, the judge might be confused (and the prosecutor might act confused) but they will full well understand what you’re asking for. Don’t let them make you feel like you’re the one being unreasonable! At minimum, a judge might postpone a decision on the matter until a later date.
You don’t have to have your McKenzie Friend present when you make your request. But, at some point, you might have to indicate who your McKenzie Friend will be (in Judge Asseraf’s case for the P-6 matter, she indicated she would only need to know the day of the trial, but not in advance, which provides the self-represented defendant with a lot of flexibility in choosing their McKenzie Friend, even rotating McKenzie Friends).
What happens if the judge refuses your request for a McKenzie Friend?
You can simply accept the judge’s decision and decide to continue as a self-represented defendant alone (or decide to hire a lawyer).
Or, you can tell the judge that you intend to bring a formal motion to have a McKenzie Friend, because not having a McKenzie Friend as a self-represented defendant constitutes a breach of your right to a fair trial as a self-represented defendant. You should indicate to the judge that you would like to request more time to put in a written motion and time to have the motion heard in court.
Get in touch with Contempt of Court: A Legal Clinic By and For Social Movements, because members of our group are interested in helping defendants with this kind of motion, so we can help set a permanent precedent in the Quebec court system.
This document has been prepared by members of Contempt of Court: A Legal Clinic By and For Social Movements (in French: Outrage au tribunal: clinique juridique par et pour les militantes et militants). We are activists, not lawyers, and this document is based on our experiences as self-represented defendants and/or offering legal support to fellow activists.
This is version 1.0 of this document. It will be modified in the future.