R. v. Nichols, 2022 BCSC 1782

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Nichols, 2022 BCSC 1782 Date: 20221012 Docket: 31515 Registry: Vancouver Rex v. Kristopher Lawrence Nichols - and - Docket: 31516 Registry: Vancouver Rex v. Charles Larry Nichols Before: The Honourable Justice Winteringham Reasons for Judgment (s. 684 funding application) Counsel for the Crown/Respondent: A. Switzer Counsel for the Accused/Applicants: S. Rauch Place and Date of Hearing: Vancouver, B.C. August 11 and September 26, 2022 Place and Date of Judgment: Vancouver, B.C. October 12, 2022 Table of Contents I. Introduction .. 3 II.

Factual Background .. 4 A. Provincial Court Proceedings . 4 B. Appeals . 7 III. Evidence on Funding Application .. 8 IV. Legal Principles – Appointment of Counsel .. 9 V. Analysis .. 11 VI. Conclusion .. 15 Appendix A .. 17 I. Introduction [ 1 ] On December 2, 2019, a judge of the Provincial Court of British Columbia (Sechelt), convicted Kristopher Nichols and Charles Nichols of various offences under the Fisheries Act, R.S.C 1985, c.

F-14 including: setting prawn gear during a closed time; fishing for prawn during a closed time; fishing without a license; possessing prawn during a closed time; and possessing prawn caught without a

licence. In addition, the trial judge convicted Kristopher Nichols of obstruction of a fisheries officer. [ 2 ] On December 29, 2020, the trial judge sentenced the two and imposed fines on each. She also ordered forfeiture of the vessel and fishing gear used in the commission of the offences. [ 3 ] Kristopher Nichols and Charles Nichols filed a Notice of Appeal, appealing the convictions, sentence and forfeiture order. [ 4 ] Pursuant to s. 684 of the Criminal Code , R.S.C., 1985, c. C-46 the Applicants apply for an order appointing state funded counsel for their appeal.

The Applicants say that the appeal raises important issues of law regarding Charter remedies, procedural fairness, the impact and use of excessive force, and evidentiary issues. They say they cannot afford counsel for this appeal and have gone into significant debt to pay for the transcripts and other costs associated to the appeal.

The Applicants submit it is in the interests of justice that counsel be appointed because the appeal has arguable merit and they do not have the expertise necessary to advance their appeal and thus cannot properly represent themselves. [ 5 ] The Crown opposes the application on the basis that the Applicants have failed to establish that they have insufficient means to obtain counsel on their own behalf, and the appeal is not of sufficient merit such that the Court may conclude it is in the interests of justice to appoint counsel. [ 6 ] For the reasons below, I decline to appoint counsel and dismiss the application.

II. Factual Background [ 7 ] I wish to spend some time setting out what occurred in the Provincial Court proceedings and the steps taken since the Notices of Appeal were filed. A. Provincial Court Proceedings [ 8 ] Very briefly, the Applicants were charged with offences relating to their activities between May 11–13, 2017. I have drawn these background circumstances from the trial judge’s reasons for conviction of December 2, 2019, R. v. Nichols , 2019 BCPC 373 [ Conviction Reasons ]. During the s. 684 application, the Applicants raised several issues about the proceedings and the errors made.

I do not yet have the benefit of the Applicant’s Statement of Argument on appeal. I have relied on the Conviction Reasons for background only. [ 9 ] On May 9 and 10, 2017, while on patrol, fisheries officers observed buoys marked with Kristopher Nichols’s phone number and status card number. Commercial prawn season was not set to start until 12:00 p.m. on May 11, 2017.

The officers also received information that the Applicants would likely haul in the traps at night to avoid detection: Conviction Reasons at paras. 6–7 . [ 10 ] On the evening of May 12, 2017, the fisheries officers conducted a surveillance operation. The officers observed a vessel, that appeared to be the Breakaway, owned by Charles Nichols, around the trap lines.

The Applicants were seen, apparently, hauling in the traps; neither applicant had a license to fish: Conviction Reasons at paras. 6 and 8 . [ 11 ] At about 1:15 a.m. on May 13, 2017, the officers boarded the Breakaway and found the Applicants in possession of the prawns. The officers arrested the Applicants with the use of force: Conviction Reasons at paras. 9 and 12–16 . [ 12 ] The officers recovered 98 traps set by the Applicants and seized the Breakaway: Conviction Reasons at paras. 20–21 . [ 13 ] The trial judge convicted both Applicants of the five charges as follows:

a) Count 1 – setting prawn gear during a closed time contrary to s. 25(1) of the Fisheries Act ;

b) Count 2 – fishing for prawn during a closed time contrary to s. 63 of the Fisheries Act ;

c) Count 3 – fishing without a licence contrary to s. 26(1) of the Fisheries Act ;

d) Count 4 – possessing prawn caught during a closed time contrary to s. 33 of the Fisheries Act ;

e) Count 5 – possessing prawn caught without a license contrary to s. 33 of the Fisheries Act . [ 14 ] In addition, the trial judge convicted Kristopher Nichols of obstructing a fisheries officer contrary to s. 62 of the Fisheries Act . [ 15 ] In the months before the trial, there were several applications requiring the trial judge’s adjudication, including Charter issues raised by the applicants. [ 16 ] The Applicants alleged that their rights pursuant to ss. 7, 8, 9, 10(a), 10(b), and 12 of the Charter had been violated. [ 17 ] On January 30, 2019, the trial judge ruled on a Vukelich application and narrowed the scope of the Charter voir dire (“ Vukelich Ruling ”). [ 18 ] Relevant to the submissions before me, the trial judge limited the applicant’s ability to proceed with the allegation that the state had violated s. 7 of the Charter , finding ( Vukelich Ruling at paras. 6–7): [6] The right to life, liberty and security of the person under s. 7 has been identified as an overarching right which was breached in all the circumstances.

No specifics have been provided as to how the investigation and search and seizure violated this right. In the Notice of Constitutional Challenge and argument, it was suggested that this was somehow related to the two accused’s Indigenous

heritage and an Indigenous right to fish. [7] In my view, these issues are not relevant to whether the legal rights of these two individuals were breached in the context of the course of the investigation or were impacted by the manner of the investigation, specifically the search and seizure of their property and the arrest of the two accused. [ 19 ] The trial judge thus permitted a voir dire to proceed regarding the violations of ss. 8, 9 and 10 of the Charter , but limited the s. 7 argument to how the fisheries officers conducted the search and arrest. [ 20 ] Even though the scope of the Charter voir dire was narrowed, considerable time was spent litigating these issues.

On November 19, 2019, the trial judge dismissed the application to exclude evidence (“ Charter Decision ”). She summarized the issue before her at para. 3: [3] Pursuant to s. 24(2) of the Charter the accused apply for exclusion of evidence they say was obtained during the inspection of their vessel by the Department of Fisheries and Oceans in the early morning hours on May 13 th , 2017. The accused say the manner in which the arrest was conducted was unreasonable. Specifically, that the force applied when they were taken into custody was excessive and infringed their rights under ss. 7 and 8 of the Charter .

They also say their rights under s. 10(

a) and (

b) to be informed promptly of the reason for their arrest and to retain and instruct counsel without delay were breached. [ 21 ] The trial judge dismissed the application for exclusion of evidence finding that the Applicants had failed to establish any infringement or denial of their right to be secure against unreasonable search and seizure under s. 8 or their right to counsel under s. 10 of the Charter . [ 22 ] The matter then proceeded to trial.

The trial judge provided the following background of what transpired before her at para. 3–5 of the Conviction Reasons : [3] The Crown called the six [Department of Fisheries and Oceans] officers who were involved in a surveillance operation and inspection which began on the evening of May 12 th and carried on into the early morning of the next day. Three of the officers were from the local Powell River office and three came to the area from the Nanaimo office to assist. [4] On November 19, 2019 I gave judgement dismissing an application for relief under s. 24(2) of the Charter .

These reasons are adapted from that ruling. I have included a detailed analysis of my findings with respect to the use of force by the officers during the arrest of Kristopher Nichols which was the central issue on the Charter voir dire . I have done so because these findings are potentially relevant to any sentencing proceedings. [5] On December 2 nd the matter was set for continuation. The evidence entered on the voir dire relevant to proof of the offences was admitted as evidence at trial. The Crown closed its case and the defence elected not to call evidence.

Brief submissions were heard respecting conviction. The defense made argument only with respect to the Crown failing to prove the mens rea of the obstruct offence. [ 23 ] The Applicants raised the fact that the trial judge had decided against them on a number of other rulings during the course of the proceedings indicating a bias on the part of the trial judge:

a) July 30, 2019 – Ruling re application to recall witness;

b) August 1, 2019 – Ruling re qualification of expert witness; and

c) August 1, 2019 – Ruling re Adjournment Application. [ 24 ] On December 2–4, 2019, the trial judge conducted a sentencing hearing though it did not complete. The sentencing hearing could accurately be characterized as a difficult one. Considerable effort was required by counsel and the court to conclude it, particularly during the COVID-19 suspension of court operations. [ 25 ] On December 29, 2020, the trial judge delivered reasons for sentence, imposing a fine of $3,750 for Charles Nichols and a fine of $9,000 for Kristopher Nichols. She also ordered forfeiture of the Breakaway and the fishing gear. B.

Appeals [ 26 ] On January 22, 2021, the Applicants filed their Notices of Appeal, appealing against conviction, sentence, and against the forfeiture order. The Notices of Appeal raise the following grounds in support of the appeals against conviction, alleging the trial judge erred:

a) in limiting evidence and argument during the proceedings;

b) in fact and law on her findings on the Charter remedies sought;

c) by interfering in the conduct of the trial including examination and cross-examination of witnesses; and

d) in findings of fact and law related to reliability of evidence. [ 27 ] The Applicants’ appeal, with respect to sentence and forfeiture order, alleges that the trial judge erred in her approach to Gladue principles and reports and made incorrect findings relating to the use of the Breakaway and in granting the forfeiture order. [ 28 ] The Applicants were assisted by counsel when they filed their Notices of Appeal. They were also assisted by counsel at the

s. 684 funding application. However, for the balance of the time the appeal has been outstanding, the Applicants have not had counsel. [ 29 ] The Applicants filed the transcripts on June 4, 2021 and the Appeal Books on September 24, 2021. They have made numerous appearances at case management conferences in an effort to ready the appeals for hearing. [ 30 ] I also note that the appeals have twice been scheduled for hearing. The first date was adjourned because the Applicants had not filed the Statement of Arguments required. The second date was lost to accommodate the s. 684 application. III.

Evidence on Funding Application [ 31 ] As I have said, the Applicants were assisted by counsel at the s. 684 application. Counsel argued forcefully that the Applicants’ status is an important factor to consider. The submission was written this way: The [Applicants] are Indigenous, have status, are from Pender Harbour, BC, and are members of the Pender Harbour First Nation, which is a Nation not formally recognised yet by Canada, with no source of funding.

The trial of this matter was lengthy and complex, particularly with Charter and evidentiary matters, and issues were raised with respect to fishing and inherent rights to fish, but a s. 35 defence was not raised, as Legal Aid BC denied funding to raise that defence. [ 32 ] Counsel submitted that the appeal raises important issues of law and mixed law and fact regarding Charter remedies, procedural fairness, the impact and use of alleged excessive force, and evidentiary issues. [ 33 ] The Applicants filed affidavits in support of their application for funding.

I granted their request to file additional evidence to address financial means. I will not detail the particulars of the affidavits except to note that both Applicants provide financial information indicating an inability to pay for a lawyer. They note they have paid significant expenses to file the Appeal Books and to pay for the many days of transcripts.

They also remind the Court that they lost the Breakaway and have not been able to sustain themselves because of the loss of the fishing vessel. [ 34 ] In addition, family members provided affidavits setting out that they were unable to assist with funding for the appeal. [ 35 ] Shauntelle Nichols, Charles Nichols’s daughter and Kristopher Nichols’s sister, filed an affidavit detailing the history of the Pender Harbour First Nation.

I will say more about the evidence below. [ 36 ] By correspondence dated August 10, 2022, Legal Services Society of BC (“Legal Aid”) stated they had refused funding for the Applicants and that the refusal was not based on financial reasons. IV. Legal Principles – Appointment of Counsel [ 37 ] Section 684(1) of the Criminal Code , which is made applicable to

summary conviction appeals by s. 822(1) of the Criminal Code , authorizes the court to assign counsel to act on behalf of an accused who is party to an appeal. [ 38 ] When an order is made under s. 684(1), the Crown bears the costs of the appeal: Criminal Code , s. 684(2) . [ 39 ] The approach to be taken in considering a s. 684 application is well known. The test was summarized by Justice MacKenzie in R. v. Silcoff , 2012 BCCA 463 at paras. 20–27 (Chambers): [20] The overriding purpose of s. 684 of the Code is to protect the right to be heard and to ensure the fairness of the proceedings: R. v.

Barton and Federici , 2001 BCCA 477 at para. 7 . [21] Appointment of counsel under s. 684 is subject to a two-part test, generally considered in the following order: 1. The accused must have insufficient means to obtain legal assistance; and 2. Appointment of counsel must be in the interests of justice. [22] According to Applications for a Court-Appointed Lawyer Under

Section 684 of the Criminal Code (Criminal Practice Directive, 19 September 2011), applicants should generally be able to show that 1) they cannot afford to retain counsel for the appeal; and 2) they applied to the Legal Services Society for legal aid and were refused. [23 The factors to be considered under the requirement of “interests of justice” were summarized in International Forest Products Ltd. v. Wolfe , 2001 BCCA 632 at para[s]. 6 and 13 (Levine J.A. in Chambers). They are as follows: a. The points to be argued on appeal; b. The complexity of the case; c. Any point of general importance in the appeal; d.

The applicant’s competency to present the appeal; e. The need for counsel to find facts, research law or make argument;

f. The nature and extent of the penalty imposed; and g. The merits of the appeal. [24] As to the merits of the appeal, the threshold requirement is an arguable appeal: R. v. Donald , 2008 BCCA 316 at para. 15 (Saunders J.A. in Chambers). [25] In determining whether an appeal is arguable, regard must be had to the applicable standard of review on the proposed appeal: Lin v.

British Columbia (Adult Forensic Psychiatric Services) , 2008 BCCA 518 at paras. 17-18 (Frankel J.A. in Chambers). [26] Even where other factors favour the appointment of counsel, it will not be in the interests of justice to appoint counsel where an appeal has no merit: R. v. Hoskins , 2012 BCCA 51 at paras. 30-32 , 315 B.C.A.C. 238 (Garson J.A. in Chambers). [27] The Court may consider the opinion of the Legal Services Society that an appeal has no prospect of success, however, the opinion of the Legal Services Society is only one factor: R. v.

Chan , 2001 BCCA 138 at para. 8 (Finch J.A., as he was then, in Chambers); R. v. Butler , 2006 BCCA 476 at paras. 7 and 10 (Rowles J.A. in Chambers). [ 40 ] With respect the financial circumstances criterion, an appellant must establish that they do not have the means to fund the appeal. In R. v. Lawson , 2017 BCCA 288 at para. 17 (Chambers), Justice Frankel stated: [17] With respect the financial-circumstances criterion, an appellant must establish that he or she does not have the means to fund the appeal.

This is something the court must determine based on the material before it, regardless of any previous assessment made by legal aid officials: R. v. Assoun, 2002 NSCA 50 at para. 49 (Chambers), 203 N.S.R. (2d) 316; R. v. Lubin, 2016 ONCA 780 at para. 9 (Chambers). [ 41 ] The financial factors considered in s. 684 applications are similar to those considered in ordering state-funded counsel at trial.

The relevant factors include the applicant’s personal financial circumstances and their ability to raise funds from other sources: Lawson at para. 18 . [ 42 ] Justice Hinkson, as he was then, examined the second branch of the test in R. v. Yliruusi , 2011 BCCA 477 at paras. 9–14 . He started by noting that someone in the applicant’s circumstances will almost always benefit from the assistance of counsel; however, he observed that this was not sufficient to satisfy this requirement. [ 43 ] Justice Hinkson also considered the merits aspect of the test.

He confirmed that at this stage, the court does not determine whether the appeal will succeed: Yliruusi at para. 6 . Rather, the applicant only needs to meet the “low threshold” of presenting the “basis for an arguable appeal”: Yliruusi at paras. 13–14 . V. Analysis [ 44 ] Applying this governing analytical framework to the circumstances of the present case leads me to conclude that it is not in the interests of justice that counsel be assigned to represent the Applicants in relation to their pending

summary conviction appeal. [ 45 ] I accept that the Applicants have established that they have insufficient means to obtain legal assistance. I make that determination after considering the factors identified by Justice Bennett in United States of America v. Fraser , 2016 BCCA 79 and by Frankel J.A. in Lawson regarding the evidence required to establish this financial eligibility.

In particular, I am satisfied that they have demonstrated they have limited income and are without recourse to financial assistance from other sources. [ 46 ] In sum, the Applicants have established on this application that they do not have the financial means (or access to resources from other sources, including family members) and do not have the financial means to privately retain counsel to act on their behalf in relation to this appeal. [ 47 ] I also accept that the Applicants have applied to Legal Aid for assistance, but has been denied funding assistance on the basis that the Applicants did not receive a sentence of imprisonment or a conditional sentence of imprisonment and because Legal Aid was of the opinion that there was not a reasonable prospect of success on the proposed appeal.

The Applicants appeal of Legal Aid’s decision was refused for the same reasons. [ 48 ] It should be noted that on Legal Aid’s review, the Applicants provided materials from Ms. Nichols. Legal Aid advised the Applicants that they wished to consider their position in light of the new materials. Though I cannot say for certain (because the attachments were not provided to me), it seems the materials referenced in Legal Aid’s correspondence of March 15, 2021 were similar to what was attached to Ms. Nichol’s affidavit filed in support of the s. 684 application.

I have referred to Legal Aid’s correspondence because it provides some insight into the s. 35 Constitution Act, 1982 indigenous rights issue. In particular, Legal Aid took the position that this “fresh evidence” would likely not have changed the result of the trial stating: The first item was the completed report of Dr. Miller. This report provides very helpful evidence that might support the Pender Harbour Band’s claim to being a society distinct from the Sechelt Band. However, as you did not raise a s. 35 defence at trial, in my opinion that new evidence would not be admitted on appeal.

In any case, this fresh evidence is unlikely to change the result of the trial before [the trial judge]. This is because establishing that your lineage is from the Pender Harbour Band and that your fishing activities were a continuation of fishing practices integral to the distinct society of the Pender Harbour First Nation, does not provide a basis to conclude the government infringed that right by requiring you to obtain a permit to fish and regulate that fishing.

The government’s obligation to protect the fishery entitles it to require permits for all persons who fish and to regulate that fishing and not every regulatory requirement limits an Aboriginal right to fish. Furthermore, the law allows reasonable limits like this on the s. 35 Aboriginal right to fish. [ 49 ] Defence counsel appearing on behalf of the Applicants suggested that there were several meritorious grounds of the appeal. More

particularly, defence counsel contended that the context for this appeal was important in the following way: The context for this appeal is important, as it informs the legal area that will be argued, especially insofar as reconciliation with Indigenous peoples are concerned, in particular when it comes to conducting trials in a fair manner, considering the law regarding forfeiture of fishing boats from Indigenous peoples, assessing the use of force by [Department of Fisheries and Oceans] officers against Indigenous fishers, credibility findings and sentencing. [ 50 ] To that end, defence counsel referred to the voluminous transcripts filed in support of the appeal.

Unfortunately, counsel did not point to specific portions of the transcript that supported the position taken on the s. 684 application. [ 51 ] The transcripts are bound in two large binders and without specific references, I did not conduct my own unguided view through the transcripts. However, counsel specifically identified issues that arose during the sentencing proceeding. Based on counsel’s submissions about difficulties that emerged, including exchanges with the court, I am satisfied that this aspect of the appeal has arguable merit.

This is particularly so regarding the forfeiture order. [ 52 ] As an aside, I have also reviewed the Applicants’ legal opinion delivered to Legal Aid, albeit brief. In that opinion, counsel addressed the s. 35 indigenous rights defence. I have not considered that issue further because there has been no indication in the proceedings before me that the Applicants will apply to introduce fresh evidence seeking to raise s. 35.

Indeed, counsel at the hearing agreed that s. 35 would not feature in this appeal, acknowledging that the Applicants had not raised s. 35 at the trial. [ 53 ] Having considered the notices of appeal, transcripts, and submissions of defence counsel, I accept that the pending appeal by the Applicants has arguable merit. [ 54 ] Given the arguable merit and nature of the appeal, it would be in the interests of justice to assign counsel if the Applicants cannot effectively present their appeal without the help of a lawyer, or if the court cannot properly decide the appeal without the assistance of counsel. [ 55 ] It is on this next prong of the analysis that this application fails.

Given the factual nature of the meritorious grounds of appeal, the Applicants can quite effectively present their appeal without the assistance of a lawyer. I am also confident the court will be able to properly decide the appeal without the assistance of a lawyer. That is particularly so because the s. 35 rights issue will not feature in the appeal. [ 56 ] The transcripts of the proceedings and Appeal Books have now been filed. All that is left to do is for the Applicants to present their written Statement of Argument.

The Applicants are familiar with the issues that occurred at the trial and the sentencing hearing.

While they have no legal training, they have represented themselves at times in the proceedings before me and have demonstrated a good knowledge of what is required. [ 57 ] The appellate court authorities in this Province and others, in my view, support the conclusion that it is not in the "interests of justice" that counsel be assigned to represent the Applicants in the present case. [ 58 ] For example, in Yliruusi , the applicant was convicted of murder and serving a sentence of life imprisonment without eligibility for parole for ten years.

He was denied the assignment of counsel for his appeal against his conviction. The court concluded, at para. 12, that it was unable to say that the accused was "incapable of effectively presenting his appeal without the assistance of counsel" given his education, experience and apparent intellectual abilities, or that it not be possible for the court to "decide the appeal without the assistance of counsel".

On this second point, the court noted that the appeal would largely be a re-canvassing of the submissions of the applicant’s counsel to the trial judge. [ 59 ] In my view, if it was not in the interests of justice to assign counsel to represent the accused in Yliruusi , it is difficult to understand how it could be in the interests of justice to assign counsel to represent the applicant in the present case. See also R. v. Wills, 2010 ONCA 128 . [ 60 ] As Hinkson J.A. stated in Yliruusi at para. 25 , someone in the applicant’s circumstances will almost always benefit from the assistance of counsel.

However, given the largely factual nature of their appeal and the Applicants’ familiarity with the materials, I am not persuaded that that the appointment of counsel is in the interests of justice. Again, I am confident that the Applicants will be able to effectively present their appeal without the assistance of a lawyer. I am also satisfied that the court will be able to properly determine the appeal without the assistance of counsel. VI.

Conclusion [ 61 ] In the result, for these reasons, the application is dismissed. [ 62 ] There are two ancillary directions that I wish to make to assist the Applicants to perfect the appeal. [ 63 ] First, the Applicants are to provide a Statement of Argument, in accordance with R. 6 of the Criminal Rules of the Supreme Court of British Columbia , SI/97-140 , excerpted at Appendix A to these reasons. The Applicants are to deliver to the registry and to the respondent the Statement of Argument by December 5, 2022. [ 64 ] The respondent is to deliver its response by January 6, 2023.

In its response, the respondent is to provide as an attachment, a chronology of the proceedings from the Provincial Court. [ 65 ] The second direction relates to the length of the hearing. In light of the volume of material and the fact that the appeals relate to conviction, sentence and forfeiture orders, the hearing of the appeal is to be scheduled for four days in February or March 2023 or on a date otherwise directed by the court.

[ 66 ] The parties are to contact court Scheduling to

schedule a hearing date in accordance with this direction. “Winteringham J.” Appendix A Excerpted from Rule 6 of the Criminal Rules of the Supreme Court of British Columbia, SI/97-140 . Statement of Argument

(14) Unless the appeal court otherwise orders, where the appeal is against an order other than sentence, the appellant shall, not later than 30 days before the hearing of the appeal, and the respondent shall, not later than 14 days before the hearing of the appeal, file two copies of a statement of argument in the registry and serve one copy on the opposite party.

(15) The appellant’s statement of argument must contain a concise outline of the circumstances and the relevant facts and a concise statement of the points of fact and law to be argued.

(16) The respondent’s statement of argument must (

a) specify what portion of the appellant’s outline of circumstances and facts the respondent agrees with; (

b) state the respondent’s version of the circumstances and facts where the respondent disagrees with the appellant’s version; (

c) specify additional circumstances and relevant facts upon which the respondent will rely; (

d) state the respondent’s position on those points of fact and law contained in the appellant’s statement; and (

e) state any additional points of fact and law that the respondent wishes to argue.

(17) Each statement of argument shall include appropriate references to the transcript and the authorities relied on.

(18) The statement of argument must be in paragraphs that are numbered consecutively and must not exceed 20 pages in length on 8½ inch x 11 inch paper, double-spaced.

(19) A statement of argument is not required where (

a) the appellant or respondent is not represented by counsel; or (

b) an order for a trial de novo has been made following an application under subrule (8).