The Self Represented Accused A Judicial Perspective Canadian Criminal Justice Association Halifax, October 2009

1. 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

3. An Access to Justice Issue • “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.” • Justice Marc Rosenberg 2009, 45 Supreme Court Law Review, 2nd

4. The Judicial Challenge 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.

5. The “Right” to Self Representation; • 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

6. But, Not an Absolute Right; • There are Statutory limitations, i.e. CC 486; vulnerable witnesses, andCC 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.

7. Who Are the Self Represented? Primarily the • The Poor • The Mentally Ill • Often Both.

8. Mentally Ill

9. It should be an informed choice • Awareness of the “right” to counsel • Awareness of options; legal aid, students • Understanding the disadvantages of self representation • Awareness of the nature and gravity of the potential consequences; record, jail, etc.

10. The Nature of the Courts’ Duty; Reasonable Assistance and Guidance • The duty is to inform, not to coach • It is an ongoing obligation • A “contextual” approach is required

11. 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, cross-examine and make submissions

12. Some Particular Tasks; • Adjournments • Guilty Pleas • Appointing Counsel • The Opening Lecture • The Trial Itself

13. The Adjournment to Obtain Counsel; “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.

14. Plea Comprehension Inquiry • 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

15. The Rowbotham Application; • 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 ; - 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.

16. At The Outset of the Trial; “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

17. “The Lecture” Tran @ paragraph 33 • “… 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. ”

18. R v. Gonsalves [2005] O.J. No. 1238(April 5, 2005) (Ont. C.A.) • 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.”

19. “The Lecture” is Mandatory; • “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 cross-examination, and the choice of the (accused) whether to testify or call evidence.” • New trial ordered • R v Moghaddam (2006) 206 CCC 3d 497 BCCA

20. In addition to “the Lecture”; • Disclosure, • Interpreter, • Subpoenas, • Adjournments, • Duty counsel, • Be sure that the case is really ready to proceed • Consider security issues. • Set the time table

21. The Trial Itself; “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

22. Resources For Judges Judicial Education; • Legal Issues – CLE • Resources For Judges – NJI EBB • Mental Health Professions – • Communications Professionals • Social Scientists • Litigants

23. Judicial Education : A sample ;

24. The Crowns’ case; • 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

25. … The Crowns’ case; • There is a duty to raise obvious Charter issues, R v Arbour OCA, R v Travers • Directed Verdicts

26. The Choice to Call a Defence • 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.

27. The Defence Case; • 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

28. Submissions; • Suggest that the Crown go first • Make clear the difference between submissions and giving evidence

29. Judgement; • Consider pros and cons of reserving judgment • Full, clear and plain language • Explain basis for conclusions

30. Sentence; • Consider need for counsel or duty counsel • Consider need for more information; PSR – medical reports – aboriginal? • Consider the need for security

31. Collected General Advice; • 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. • Be civil, be patient, be professional.

32. Bench Book Insert – 1 page; • 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)

33. … • Can this Resolve? • Create an opportunity for resolution • Confirm Disclosure • Direct accused to Duty Counsel – resolution may ensue Outline the trial process; • “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

34. … • 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

35. … • 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

36. … • 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 –

37. A Basic Guide For Self Represented Accused • A Basic Guide for Self-Represented Accused • _______________________________________________________________________ • 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.

38. …. • 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.)