1. Dealing With The Self-Represented Accused
Justice Michelle Fuerst
Superior Court of Justice
Newmarket, Ontario
Dealing With The Self-Represented Accused

2. Why Accused Persons Self-Represent
Cutbacks to legal aid funding
Cost of legal services
Mental health problems
“No lawyer could do it like I can”
Anything to derail the trial

3. The Difficult Self-Represented Accused
R. v. Fabrikant, [1995] Q.J. No. 300 (Que. C.A.)
R. v. Howell (1995), 103 C.C.C. (3d) 302 (N.S.C.A.)
R. v. F. (D.P.), 1999 CarswellNfld 55 (C.A.)
R. v. Pawliw, 1985 CarswellBC 829 (Sup. Ct.)
R. v. Wills, 2011 ONCA 468

4. Constitutional Right
Accused has constitutional right to represent him/herself: R. v. Swain, [1991] 1 S.C.R. 933, at p. 972
Cannot be forced to retain counsel against his/her will

5. Duty of Trial Judge
Trial judge has duty to assist self-represented accused in proper conduct of the defence, and to guide him/her throughout trial so his/her defence brought out with its full force and effect: R. v. McGibbon (1988), 45 C.C.C. (3d) 334 (Ont. C.A.)
BUT
Does not mean judge must give accused at each stage of trial the kind of advice counsel would be expected to provide: R. v. Tauber (1987), 20 O.A.C. 64 (C.A.)

6. Duty of Trial Judge (cont’d)
Judge cannot be both advocate and impartial arbiter
“The duty of trial judges is to advise and assist an unrepresented accused; they are not required to doff their robes and descend from the bench to be seated beside the accused at counsel’s table.” R. v. Bonnick, [2004] A.J. No. 463 (C.A.), at para. 12

7. How Much Assistance is Enough?
Depends on circumstances of case; a “contextual” approach
Relevant factors include:
Seriousness of offence charged
Complexity of case
Nature of the issues
Whether accused demonstrates an understanding of court proceedings
Accused’s facility with English/French language
Whether accused sophisticated or not and able to speak up for him/herself

8. How Much Assistance is Enough? (cont’d)
Trial judge required to:
Inform accused of what Crown must prove and of burden of proof brd
Explain basics of trial procedure, including difference between examination in-chief and cross-examination
Advise of right to subpoena witnesses; ask Crown to assist where appropriate
Advise of right to object to evidence led by Crown
Explain purpose of cross-examination; assist in framing of questions if accused has difficulty
Explain right to testify and right to elect not to testify

9. How Much Assistance is Enough (cont’d)
Explain that if wishes to put his/her account of events forward, must do so under oath/affirmation and not by way of submissions
Raise issue of possible Charter infringement and where appropriate, enter into voir dire
Trial judge should warn accused of consequences of particular trial strategy, such as leading evidence of good character—But must respect accused’s strategic decisions: R. v. Phillips, [2003] A.J. No. 14 (C.A.)

10. Duty of Crown Crown should be vigilant where accused self-represented
Crown should suggest additional areas to be canvassed with accused if trial judge’s initial instructions or information fall short
Where evidence is prima facie inadmissible (e.g. similar act evidence) or Crown bears onus to establish admissibility (e.g. confession subject to voluntariness rule), Crown should alert judge to need for voir dire even if accused silent on issue

11. Consequences of Self-Representation
Self-represented accused must follow same rules of evidence and procedure as counsel; no privilege to ask irrelevant questions or adduce irrelevant evidence: R. v. Fabrikant
Self-represented accused cannot later complain that his/her conduct amounted to ineffective assistance of counsel: R. v. Peepeetch (2003), 177 C.C.C. (3d) 37 (Sask. C.A.)

12. Appointment and Role of Amicus Curiae
Source of confusion
In some instances, appellate courts have approved trial judge’s appointment of amicus to assist self-represented accused in lieu of defence counsel
Recently clarified in Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43
Majority judgment authored by Karakatsanis J.; Fish J. (with 3 others) wrote in dissent

13. The Background
Appeal concerned 3 Ontario cases in which trial judges appointed amicus:
R. v. Imona Russel (S.C.J.): Amicus appointed at request of Crown; was to act on behalf of accused as if defence counsel
R. v. Whalen (Ont. C.J.): Amicus appointed to act for accused on dangerous offender hearing, but had ability to override accused’s instructions in accused’s best interests
R. v. Greenspon (S.C.J.): Defence counsel discharged by accused appointed amicus

14. The Background (cont’d)
In each case, amicus refused to accept legal aid rate of pay
In each case, trial judge fixed rate of pay exceeding legal aid tariff and ordered provincial A.G. to pay it

15. Issue #1: The Proper Role of Amicus
A court has inherent jurisdiction to appoint lawyer as amicus curiae (“friend of the court”) in criminal cases, as part of authority to control its own process and function as a court of law
But two conditions apply:
Assistance of amicus must be essential to judge discharging his/her judicial functions in particular case; and
Authority to appoint amicus should be used sparingly and with caution, not done routinely

16. The Proper Role of Amicus (cont’d)
Amicus cannot be appointed to mirror role of defence counsel
Why:
Would conflict with accused’s constitutional right to represent self
Can undermine judicial decision to deny state-funded defence counsel [failed Rowbotham application]
Potential conflict between obligation of amicus to court, and representation of accused

17. The Proper Role of Amicus (cont’d)
-- Can result in judge doing indirectly what cannot do directly, i.e. give accused strategic advice
Could undermine provincial legal aid scheme
“[A] lawyer appointed as amicus who takes on the role of defence counsel is no longer a friend of the court”: Para. 5

18. The Proper Role of Amicus (cont’d)
Court can “set terms to give effect to their authority to appoint amici”: Para. 64
Precise boundaries of role left unclear; some recognition that amicus can be appointed to assist, but not act for, accused: See para. 73
Can at least be appointed to bring facts or matters of law to attention of court or otherwise give advice to judge dealing with self-represented accused, even if does not advance interests of accused
Is not to be routine way of getting complex trials completed

19. Issue #2: Remuneration of Amicus
Judge who appoints amicus does not have power to set rate of compensation, or order enhanced compensation
Is for provincial A.G. to determine because concerns expenditure of public funds
May be provided for in legislation establishing provincial legal aid plan, as in Manitoba
Or, province may set up roster of available counsel who will act at rates set by A.G.

20. Remuneration of Amicus (cont’d)
If court-appointed amicus and A.G. cannot agree on rate of compensation, judge may have to impose stay until amicus can be found
Note: On issue of jurisdiction to order compensation, majority seem to draw distinction between appointment of amicus, and appointment of counsel resulting from Charter s. 24(1) application (Rowbotham order)

21. Criminal Code s
Whether or not judge appoints amicus, Code empowers judge to appoint counsel to cross-examine one or more witnesses in certain circumstances
Section 486.3(1):
In any proceedings
On application by Crown or witness under 18 years
Unless proper administration of justice requires accused to personally conduct cross-examination of that witness, accused shall not do so
Judge shall appoint counsel to cross-examine that witness
Note: s (4) similarly worded in respect of alleged victim of criminal harassment

22. Criminal Code s. 486 (cont’d)
Section 486.3(2):
In any proceedings
On application of Crown or a witness
In order to obtain full and candid account from that witness of acts complained of, accused should not personally cross-examine that witness
Judge shall appoint counsel to cross-examine that witness

23. Criminal Code s. 486.3 (cont’d)
Parameters of role of counsel appointed to cross-examine unclear:
Does not become defence counsel
But, required to take instructions from accused as to the cross-examination ?
What if accused uncooperative?
Subject to allegation of ineffective assistance of counsel on appeal?

24. Criminal Code s. 486.3 (cont’d)
Decision in Criminal Lawyers’ Association would seem to apply to prevent judge who appoints cross-examining counsel from fixing rate of compensation