Chapter 7 - Managing the Unrepresented Accused
The issue of the unrepresented or self-represented accused, while important to the broader justice system, is particularly germane in long complex cases. What might otherwise be a relatively straightforward trial can turn into a lengthy and complex proceeding, especially when the accused chooses to be self-represented. In those cases where a self-represented accused is intent on controlling and/or disrupting the trial there is a need for remedial steps which we will address in this final Chapter.
There are many reasons why an accused is unrepresented at trial or might choose to be self-represented. The main explanation for the unrepresented accused is that there are many Canadians who, because of their assets or income, do not qualify for Legal Aid, yet are not able to afford a lawyer. 1 An individual may also be unrepresented due to inability to find a lawyer willing to act on his/her behalf. Finally, an accused may choose to be self-represented because they believe, unwisely, that they are able to conduct their own defence. It is this last group that raises the most difficult challenges. If, for whatever reason, an accused is either unrepresented or chooses to be self-represented there may be an obligation on the court to secure legal representation in certain circumstances.
It is a challenging task for the trial judge to ensure a fair and efficient trial where the accused is either unrepresented or self-represented. The following description by Madam Justice Fuerst points out some of the difficulties: 2
Whatever the reason for his or her status, the self-represented accused is usually ill-equipped to conduct a criminal trial. He or she comes to court with a rudimentary understanding of the trial process, often influenced by misleading depictions from television shows and the movies. His or her knowledge of substantive legal principles is limited to that derived from reading an annotated Criminal Code. He or she is unaware of procedural and evidentiary rules. Even once made aware of the rules, he or she is reluctant to comply with them, or has difficulty doing so. The limitations imposed by the concept of relevance are not understood or are ignored, and the focus of the trial is often on tangential matters. Questions, whether in examination-in-chief or cross-examination, are not framed properly. Rambling, disjointed or convoluted questions are the norm. The opportunity to make submissions is viewed as an opportunity to give evidence without entering the witness box.
The criminal justice system often does not work as it should when an accused is not represented and cannot present or challenge the evidence in a meaningful way. In such situations the trial judge is asked to correct this imbalance. This can, however, create a conflict between the impartiality of the trial judge and the need to intervene to protect the rights of the unrepresented accused. In R. v. McGibbon, the Ontario Court of Appeal addressed the issue of the trial judge's general duty to assist in these cases: 3
Consistent with the duty to ensure that the accused has a fair trial, the trial judge is required within reason to provide assistance to the unrepresented accused, to aid him in the proper conduct of his defence, and to guide him throughout the trial in such a way that his defence is brought out with its full force and effect. How far the trial judge should go in assisting the accused in such matters as the examination and cross-examination of witnesses must of necessity be a matter of discretion.
Beyond this general duty of the trial judge to assist there are other options open to the court to deal with the difficult issues raised during the trial of a self-represented or unrepresented accused. Particularly in the context of long complex cases, the trial judge may find it necessary to appoint amicus curiae to assist the court or, in some exceptional circumstances, to appoint counsel for the accused in order to preserve the integrity of the process and ensure a fair trial.
B. Appointing Amicus Curiae
A judge has the power to appoint amicus curiae at the trial of an unrepresented or self- represented accused on the basis of its inherent jurisdiction to protect the fairness of the trial and the proper administration of justice. 4 In R. v. Lee, the Court set out a non-exhaustive list of factors to consider when deciding whether to appoint amicus in a case involving an unrepresented accused: the complexity of the case; the seriousness of the potential penalties; the accused's age and ability to understand the proceedings and to express himself; and the accused's familiarity with the trial process. 5
The timing of an order appointing amicus may be important. Amicus should generally be appointed at the earliest opportunity in complex proceedings with an unrepresented accused. This will assist in avoiding some of the delays that may arise if the appointment is made at trial. In R. v. W. (P.H.L.), the Court noted that if amicus had been appointed after the trial had already began, the trial judge may have been forced to declare a mistrial due to the delay caused by the late appointment. 6
As to the role of amicus, the authorities disclose a spectrum of involvement in the trial. Traditionally amicus has not played a substantial role, simply making submissions so that the court is aware of all relevant points of law or fact, and thus helping in this limited way to ensure a fair trial. R. v. Brown, the "Just Desserts" murder trial, illustrates this approach. One of the three co-accused was self-represented and amicus was appointed but performed a very limited role. Amicus did not cross-examine any witnesses, give advice to the accused or receive any confidential information from the accused, and only made submissions to the court on the basis of the evidence adduced. 7 In other cases, amicus has taken on the role of cross-examining witnesses. This may occur when an accused is not permitted to cross-examine the witnesses himself, such as where the witnesses are minor victims of sexual crimes or otherwise vulnerable, or where amicus' involvement is necessary to ensure that the evidence is adequately tested. 8 Given the increasing length and complexity of criminal trials, as discussed in Chapter 2, we believe the court should consider a broad role for amicus. When amicus take on an expanded role, including examining and cross-examining witnesses, they need to consult with the client, assuming the client is willing to meet. Although amicus is not counsel to the accused, the courts have sensibly protected the confidentiality of these communications. 9
Of particular interest on this point is the recent decision of the British Columbia Court of Appeal in R. v. W. (P.H.L.), which appears to contemplate an expanded role for amicus. The elderly accused was charged with a historical sexual assault of his daughters. He had been refused legal aid and a Rowbotham order was denied on the basis that he could afford to retain counsel. The accused chose to proceed self-represented. The Crown acknowledged the case was serious and complex. On the appeal from his conviction, the British Columbia Court of Appeal held that, as the trial progressed, it became clear the accused was not capable of defending himself effectively. He frequently brought up matters that the trial judge warned him were prejudicial to his case, he declined to cross-examine the complainants, and he eventually abandoned his closing address after objections that he was trying to adduce new evidence. The Court held that the accused could not receive a fair trial without the assistance of counsel and that the trial judge should have either entertained a fresh Rowbotham application or should have appointed amicus curiae. 10 A new Rowbotham application would almost certainly have failed since the accused's financial circumstances had not changed. The thrust of the Court's reasoning appears to be that in these circumstances amicus should have been appointed and that the role of amicus would include assisting the accused in the conduct of his defence so as to ensure that he received a fair trial.
We believe that the appointment of amicus at the early stages of a long complex trial has many benefits where the accused is either unrepresented or self-represented. Amicus can help to identify those issues and motions that have potential merit and those that do not. If the accused gains confidence in the amicus, the role can evolve into a form of representation and thus help to shorten and simplify these very difficult trials.
C. Appointing Counsel
Section 651(2) of the Criminal Code provides that:
Counsel for the accused or the accused, where he is not defended by counsel, is entitled, if he thinks fit, to open the case for the defence, and after the conclusion of that opening to examine such witnesses as he thinks fit, and when all the evidence is concluded to sum up the evidence. [Emphasis added]
This provision sets out the statutory right of an accused to be self-represented. In R. v. Swain the Supreme Court of Canada held that the accused's right to control their own defence, including the right to be self-represented, is a constitutional principle: 11
Given that the principles of fundamental justice contemplate an accusatorial and adversarial system of criminal justice which is founded on respect for the autonomy and dignity of human beings, it seems clear to me that the principles of fundamental justice must also require that an accused person have the right to control his or her own defence An accused person has control over the decision of whether to have counsel. [Emphasis added]
When accused persons exercise the right to conduct their own defence they, of course, still retain the right to a fair trial. Accordingly, the trial judge is required to assist the accused in navigating the trial process and bringing out the defence. How far the trial judge must go in assisting the self-represented accused, as discussed above, is a matter of discretion. In some cases, the trial judge may actually go so far as to assist in the cross-examination of witnesses. 12
However, courts have consistently held that a self-represented accused is not entitled to any special advantages by virtue of that status; the accused assumes the risk of self- representation. 13 The right to self-representation and to make full answer and defence do not give the accused licence to make a mockery of the court and its process: 14
The right of an accused to make full answer and defence entitles the accused to adduce relevant evidence, to advance legal argument and to address the Court. It carries with it no licence to paralyse the trial process by subjecting an endless stream of witnesses to interminable examination on irrelevant matters. In this regard, an unrepresented accused enjoys no particular privilege. On purely formal matters, he, untrained in legal science, will generally be permitted reasonable latitude in putting questions, in formulating objections, and in arguing points of law. By renouncing the assistance of counsel, however, an accused gains no right to proceed by different fundamental rules.
There are, however, additional challenges caused by an unruly self-represented accused. In such a case, the appointment of amicus may not improve the process since the disposition and conduct of the accused is generally not conducive to accepting assistance. In these situations, the only available judicial recourse is to have the accused removed from the court room. Section 650(2)(a) of the Criminal Code enacts the power to remove the accused "where he misconducts himself by interrupting the proceedings so that to continue the proceedings in his presence would not be feasible".
Perhaps the best-known example of the difficulty presented by this more extreme remedy is R. v. Fabrikant. The headnote from the decision gives a flavour of the struggle the trial judge had in balancing the integrity of the trial process with the self-represented accused's right to be present and make full answer and defence: 15
The accused was charged with four counts of first degree murder, two counts of attempted murder and two counts of hostage taking, following a shooting spree at a university. There was no doubt that the accused had killed the victims and that he committed the other acts alleged. The Crown's case lasted approximately two months, although it was interrupted for a hearing to determine whether the accused was fit to stand trial. At the conclusion of the Crown's case, the accused, who had decided to act on his own behalf, began a defence which lasted over two months and involved the calling of 77 witnesses. Much of the evidence called by the accused was found by the trial judge to be irrelevant. The accused was continuously rude to the trial judge, referring to him on many occasions as a "low little crook". After approximately one month, the trial judge warned the accused that he may have to stop the calling of further defence witnesses and that the accused should be prepared to testify. In the course of the defence evidence, the accused was found in contempt on six occasions. However, because the accused was not represented by counsel, the trial judge decided not to order the accused expelled from the courtroom. Finally, the trial judge put an end to the calling of further defence witnesses and told the accused that if he wished to testify he should do so. The accused refused. The trial judge then ended the defence case. The accused was permitted to give a jury address which lasted several days. The Crown addressed the jury and the trial judge then summed up the case.
The Quebec Court of Appeal upheld the trial judge's decision to terminate the accused's defence, calling it "inevitable" in light of his conduct; the accused was wasting the court's time calling irrelevant witnesses at great length and advancing a meritless defence of provocation. The Court found that in light of the accused's conduct, he had not been denied the right to control his defence, but rather had sacrificed his right through his failure to exercise it in a reasonable manner. 16
Fabrikant illustrates the need, in exceptional circumstances, for the court to have greater powers. In particular, the court should be able to appoint counsel for the self-represented accused who is not only behaving in a disruptive or outrageous fashion but is also putting a fair trial at risk. This could be an intermediate remedy, short of removing the accused, or it could be a remedy that accompanies removal.
In R. v. Pawliw, Murray J. of the British Columbia Supreme Court described the procedure contemplated by s. 577(2)(a) (the predecessor to the current s. 650 (2)(a)) as "drastic". 17 In Pawliw, the self-represented accused persisted in asking improper and repetitive questions, would frequently pause for several minutes in between questions, made constant and frivolous motions to quash the indictment, refused to abide by the trial judge's rulings, and verbally abused nearly everyone in the court room. The trial judge found that the accused was deliberately attempting to delay and obstruct the proceeding. He ordered the accused removed from the court room for the remainder of the Crown's case and cross-examined witnesses himself in the accused's absence. While the trial judge noted that s. 577 had never been challenged under the Charter, he was satisfied that even if there was a violation of s. 7 it would be justified under s. 1. He stated that any other result would lead to "chaos in the courts which could be held to ransom by any accused person who takes it upon himself to disrupt the course of justice". 18
In R. v. Sharp, the accused was much more disruptive, shouting and threatening spectators in the gallery. He also fired his counsel and indicated that he did not want to be present for the proceedings. Determining that the accused posed a safety risk, the trial judge ordered that he be removed from the court room. During the Crown's case, he was presented with audio and written transcripts of evidence at the end of each day; ultimately he conducted his defence by video link to the court room. In upholding his summary conviction, the Court acknowledged that Sharp was prejudiced by not being permitted to cross-examine the Crown's witnesses, but held that he effectively chose to curtail his own right to make full answer and defence through his conduct. 19
We believe these cases illustrate the point that trial judges must have the ability to appoint counsel for those self-represented accused who conduct their defence in such an offensive, disruptive and obstreperous manner that they put the integrity of the trial process at risk. The criminal justice system is better served by having counsel appointed, notwithstanding the wishes of an unruly accused. Removal is a serious measure and should be a last resort. Appointing counsel to assume carriage of the defence is clearly a more palatable and just solution and, in some cases, will allow the trial to proceed without disruption. The narrow wording currently contained in s. 650 (2)(a) should be amended to grant the court authority to appoint counsel for the self-represented accused in situations where the accused's conduct is impeding or disrupting the trial, and/or resulting in an unfair trial. Of course, if the accused continues to disrupt the trial after counsel is appointed he should be removed pursuant to s. 650(2)(a), although removal should be combined with an audio/video link.
There are currently provisions in the Criminal Code which contemplate counsel being appointed regardless of the wishes of the accused. Section 486.3 allows the court to appoint counsel to examine certain vulnerable witnesses where it is not in the best interests of justice for the self-represented accused to conduct the examination. As well, s. 672.24(1), allows the court to appoint counsel to represent the accused where there is an issue of fitness to stand trial. We believe it is a logical extension of these powers to provide for the appointment of counsel where the conduct of the self-represented accused is impeding or disrupting the trial or when the trial judge is satisfied that the accused's conduct of the case is causing an unfair trial. If the appointment of counsel was against the wishes of the self-represented accused, it would be a violation of the s.7 Charter right to choose whether to have counsel, as enunciated in Swain. 20 However, we believe this power would be a s. 1 "reasonable limit" on the right when used in circumstances of necessity to preserve the fairness of the trial.
Trial Judges should exercise their common law power to appoint amicus curiae in a long complex trial where the accused is unrepresented or chooses to be self-represented and where such appointment is likely to assist in ensuring the fairness of the trial. Wherever possible, the appointment should be made at an early stage, to prevent delays of the trial. The amicus should generally be allowed to play an expanded role, including the examination and cross-examination of witnesses, whenever feasible.
The Federal, Provincial and Territorial Ministers of Justice should consider amendments to the Criminal Code to provide a power to appoint counsel for a self-represented accused where the accused's conduct is impeding or disrupting the trial or when the trial judge is satisfied that the accused's conduct of the case is causing an unfair trial.
- Remarks of the Right Honourable Beverley McLachlin, P.C., Empire Club of Canada, Toronto, March 8, 2007, Online: http://www.scc-csc.gc.ca/court-cour/ju/spe-dis/bm07-03-08-eng.php
- The Honourable Madam Justice M. Fuerst, "The Self Represented Accused: The Trial Judge's Perspective", July 2007, unpublished, at p. 2.
- R. v. McGibbon (1988), 45 C.C.C. (3d) 334 at 347 (Ont. C.A.). Also see Statement of Principles on Self-Represented Litigants, Canadian Judicial Council, 2006. Online: http://cfcj-fcjc.org/inventory/reform.php?id=46
- R. v. Samra (1998), 129 C.C.C. (3d) 144 at 154 (Ont. C.A.); R. v. Tehrankari,  O.J. No. 1902 (S.C.J.). C.D. McKinnon J. also addresses the issue of funding of amicus curiae in the latter case
- R. v. Lee (1998), 125 C.C.C. (3d) 363 at 365 (N.W.T.S.C.)
- R. v. W. (P.H.L.) (2004), 190 C.C.C. (3d) 60 (B.C.C.A.).
- R. v. Brown, 1999 Carswell Ont. 4700 (Gen. Div.) aff'd. (2006), 215 C.C.C. (3d) 330 (Ont. C.A.). Also see R. v. Samra, supra, note 195 at p. 153.
- R. v. Lee, supra note 196 at pp. 365-367; R. v. Phung,  O.J. No. 5663 (S.C.J.).
- R. v. Lee, supra note 196 at p. 367; R. v. Jordan 2002 Carswell On. 6235 at para. 23 (S.C.J.). Wigmore's four criteria for the recognition of privilege on a case by case basis would seem to apply in these circumstances. See R. v. Gruenke (1991), 67 C.C.C. ( 3rd) 289 (S.C.C.).
- R. v. W. (P.H.L.), supra note 197 at pp. 65-70. Also see R. v. Chemama 2008 ONCJ 31 (Ont. C.J.) where Green J. denied a Rowbotham application but appointed amicus.
- R. v. Swain,  1 S.C.R. 933 at 972. Also see R. v. Vescio,  S.C.R. 139 at para. 11.
- R. v. McGibbon, supra note 194.
- R. v. Romanowicz (1998), 14 C.R. (5th) 100 (Ont. Gen. Div.), aff'd supra note 95.
- R. v. Fabrikant, supra note 102 at p. 574; R. v. Pawliw (1985), 23 C.C.C. (3d) 14 at 18 (B.C.S.C.).
- R. v. Fabrikant, supra note 102.
- Ibid at pp. 573-574.
- Supra note 205 at p. 17.
- Ibid at pp. 17-19.
- 2002 YKSC 68 at paras. 5-7, 13-15 and 19.
- Supra note 202.