Dealing With The Self-Represented Accused

Justice Michelle FuerstSuperior Court of JusticeNewmarket, Ontario

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

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

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

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.)

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

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

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

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.)

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

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.)

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

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

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

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

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

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

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

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.

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)

Criminal Code s. 486.3

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. 486.3(4) similarly worded in respect of alleged victim of criminal harassment

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

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?

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