The Self Represented Accused
A Judicial Perspective
Canadian Criminal Justice Association
Halifax, October 2009
Justice William B. Horkins
Ontario Court of Justice
William.horkins@ocj-cjo.ca
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“An accused without legal representation is at
a profound disadvantage in the complex
system of criminal justice. Without their own
lawyers, accused are vulnerable to pressure
to plead guilty, not well positioned to
challenge the prosecution’s case and less
able to mount a full defence. In short, they
are at serious risk of being unable to
adequately access the justice system.”
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Justice Marc Rosenberg
2009, 45 Supreme Court Law Review, 2nd
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On the one hand
 The Court has a positive duty to assist an
unrepresented accused in order to deliver a
fair hearing.
On the other hand
 The Court must never compromise its’ own
impartiality by becoming, or even appearing to
become, an advocate in the cause.
There is an inherent tension and perhaps an
irreconcilable conflict between these two
obligations.
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Presently there is a “Right” to be self-represented
in criminal proceedings
The right is based on respect for individual
autonomy. Swain, Mian,
But, the accused assumes the risks of self
representation and waives the right to effective
counsel; Romanowicz
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•There are Statutory limitations, i.e. CC 486;
vulnerable witnesses, and CC 672.24 – unfit, or
“Fit”, but not Fit to Self Represent”
• LeSage / Code – recommends a trial
management power to impose counsel on an
unruly accused
• There are “hybrids”; Duty counsel, amicus,
legal advisors, Agents and law students.
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Primarily the
 The Poor
 The Mentally Ill
 Often Both.
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Awareness of the “right” to counsel
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Awareness of options; legal aid, students
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Understanding the disadvantages of self
representation
Awareness of the nature and gravity of the
potential consequences; record, jail, etc.
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Reasonable Assistance and Guidance
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The duty is to inform, not to coach
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It is an ongoing obligation
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A “contextual” approach is required
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The Necessary Degree of Assistance
Contextual;
 Seriousness of the case
 The facts of the case
 Sophistication of the accused
 Nature of the potential defence
 The general ability to examine, crossexamine and make submissions
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Adjournments
Guilty Pleas
Appointing Counsel
The Opening Lecture
The Trial Itself
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“Judicial Discretion”;
 History of the case
 Prejudice to the prosecution, type of case
 Conduct of the accused
 The suggested “default” is to grant the
adjournment unless the accused is manipulating
the system; Nichols, Moore and McGibbon
 A compromise perhaps?; get the crowns’ case in
and then adjourn.
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No issue with the facts
 Voluntary
 Waiver of further legal advice
 Fully informed ;
a. elements of the offence,
b. the finality of conceding the Crowns’ case
And
 Plea bargains are not binding
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A finding that counsel is essential to a fair trial
And
 That the accused lacks the means to obtain counsel
 The remedy is a Stay pending the provision of
counsel.
 Factors to consider ;
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- complexity of the case,
- seriousness,
- diligence of accused in seeking counsel,
- circumstances of the accused (age, education, prior
experience with court proceedings) and ability to conduct the
case.
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“The Lecture” – A mandatory outline of basic
concepts and trial procedure.
R v Gonsalves, [2005] O.J.1238, OCA
R v Tran (2001) 156 CCC 3d 1, OCA
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“… to satisfy the minimum requirement of
providing assistance … ,
(the Trial judge should have outlined) the course
which the trial was to take, beginning with his
arraignment, followed by the Crown Attorney
calling her witnesses, his right to cross-examine
the witnesses and to object to irrelevant evidence,
his right to call witnesses and to testify, the risks
inherent in testifying and not testifying, and
finally, the right to make closing argument. ”
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at the outset of the trial he did not provide an explanation to the
appellant of the court proceedings and how they would unfold.
did not tell the appellant that he was entitled to object to
evidence led by Crown counsel.
made no reference to the preliminary hearing transcript and how
the appellant could use it in cross-examination.
did not adequately explain the purpose of cross-examination of
a witness and how to conduct it.
did not explain the purpose of the voir dires respecting the
police officers’ and security persons’ notes.
did not explain the factors an accused should consider before
testifying on his own behalf.
The result is that the appellant did not receive a fair trial.”
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“The trial judge made no opening comments
regarding the trial process and provided no
explanation of the elements of the offences, the
burden of proof on the Crown, the concepts of
evidence and relevance, the concept of crossexamination, and the choice of the (accused)
whether to testify or call evidence.”
New trial ordered
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R v Moghaddam (2006) 206 CCC 3d 497 BCCA
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Disclosure,
Interpreter,
Subpoenas,
Adjournments,
Duty counsel,
Be sure that the case is really ready to proceed
Consider security issues.
Set the time table
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“Judges are no longer required to be as passive as
formerly. Judges are entitled to intervene in the
adversarial debate and it is sometimes essential
that they do so for justice to be done.”
Lamer J. in Brouillard SCC
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Judicial Education;
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Legal Issues – CLE
Resources For Judges – NJI EBB
Mental Health Professions –
Communications Professionals
Social Scientists
Litigants
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A sample ;
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Ask the for an opening statement
Monitor the Crown’s case with respect to
admissibility of evidence
Protect the record liberally with limiting
instructions, i.e. hearsay
Explain and emphasize early on the distinction
between cross-examination, arguing and giving
evidence
Suppress abusive questioning and be aware of
Statutory limitations on cross by the accused, cc
486
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There is a duty to raise obvious Charter issues, R v
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Directed Verdicts
Arbour OCA, R v Travers
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Refer the accused to Duty Counsel
Consider written instructions
Caution regarding exposure in testifying - i.e.
exposure to cross on criminal record
Ensure the options are understood
Make it clear to the accused that any earlier
“unsworn” commentary from the floor was not, and
is not, evidence.
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Be ready to lead the accused and assist in
bringing out the evidence. Barratt
If necessary assist with the examination of
defence witnesses, McGibbon
Do not tolerate abusive conduct, Fabrikant
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Suggest that the Crown go first
Make clear the difference between
submissions and giving evidence
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Consider pros and cons of reserving
judgment
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Full, clear and plain language
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Explain basis for conclusions
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Consider need for counsel or duty counsel
Consider need for more information; PSR –
medical reports – aboriginal?
Consider the need for security
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KEY ; Early on, assess the accused’s level of
“need”
Be impartial and project it – repeatedly
explain the limits of your role in assisting
as opposed to advising.
Be clear – speak plainly.
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Be civil, be patient, be professional.
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Attitude
Be Impartial – Be Civil – Be Patient – Be Professional – Be Careful
Give sufficient aid and guidance to facilitate bringing out the
defence in “full force and effect”
Early assessment of Needs
Assess early on how much assistance this particular accused
needs in this particular case.
Is there any realistic prospect of counsel being obtained?
Would an adjournment facilitate obtaining counsel without undue
prejudice to the Crown? – See EBB;
Is there a clear informed waiver of the right to counsel, or
forfeiture by conduct?
Is this a “Rowbotham” case?
Fitness? CC 672.24 duty to appoint counsel
Language; right to interpreter, right to official language of choice
CC 530(3)
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Can this Resolve?
Create an opportunity for resolution
Confirm Disclosure
Direct accused to Duty Counsel – resolution may ensue
Outline the trial process;
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“The Lecture”
Consider providing a written memorandum of directions.
The order of proceeding: Crown – Defence – Submissions –
Judgment
The Charge – elections- elements of the offence - burden of
proof
Right to object to improper evidence and the voir dire process.
Right to cross-examine,
Emphasize the impartial role of the judge – will offer information,
not advice
Clarify the timetable; for the day – for the case
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The Crown’s case
Have the Crown give an opening overview of the case
Monitor the Crown’s case with respect admissibility of evidence
Protect the record with limiting instructions
Avoid intervention that could cause any suggestion of bias either
way
Cautiously assist with cross, if necessary
Duty to raise obvious Charter issues
The choice to call a defence
Preliminary Hearing; must read caution and right to call evidence
(CC 541) Refer to Duty Counsel – consider written instructions.
Ensure that the options are understood
Make it clear that “unsworn” commentary from the floor is not
evidence
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The Defence case
Assist the accused in leading evidence and
responding to the Crown’s case.
Regulate abusive or prohibited cross- examination
(cc 486 w<18)
Defer to ill advised tactics but caution wrt legal
“traps”; i.e. opening up character evidence ( R v
W.R.P.)
Submissions
Suggest that the Crown go first
If needed, explain the difference between
submissions and giving evidence
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Judgment
Consider pros and cons of reserving judgment
Full, clear and plain language explaining the basis for
conclusions
Sentence
Consider need for counsel or Duty Counsel
On a plea, a very thorough plea comprehension
inquiry is required
Consider need for PSR or Gladue report especially if
significant jail under consideration.
References
NJI Electronic Bench Book Conduct of a Trial Ch.9 –
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A Basic Guide for Self-Represented Accused
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This guide is meant to assist you in representing yourself in these
proceedings. It sets out some very basic information on procedural
matters that you should know.
Court Sittings
Court commences each day at 10:00 a.m. There will usually be a brief
mid-morning break at approximately 11:30 a.m. and a lunch break from
1:00 p.m. to 2:15 p.m. The Court will not normally sit past 4:30 p.m.
This routine may change to accommodate the reasonable needs or
commitments of those involved.
It is imperative that all participants be in the courtroom on time and
ready to proceed at the beginning of the day and following any breaks.
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Basic Guidance You Can Expect from the Court
It is essential that you understand that the trial judge cannot give you legal advice
nor act as your lawyer. The trial judge is, and must remain, impartial as between
you and the Crown. The judge in your case cannot give you advice, but will
provide you with information and reasonable assistance to understand the trial
procedure that is either required or normally followed in this court.
The comments in this memorandum cannot replace the legal advice and
assistance that you would have available to you if you had a lawyer. As a self
represented litigant you alone are responsible for the presentation of your case
and you cannot relieve yourself of this responsibility by simply relying on this
guide. At the outset of the trial, the judge knows very little, if anything, about the
case against you. The trial judge will not be able to anticipate every issue that will
require your consideration. If you feel that there is something happening in your
trial that you do not understand you should not hesitate to ask for directions. If in
doubt, ask for assistance.
The Charges against You
>>>> (etc.)
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