Limitations on Cross-Examination by Self-Represented Accused

A self-presented accused is presumed to be entitled to cross-examine any witness called by the Crown. Section 486.3(1) entitles the Crown or the witness to apply for an order prohibiting the accused from "personally" cross-examining that witness. The section allows for a prohibition in relation to the following situations:

1. any charge where the witness is under the age of 18 years (mandatory) [s. 486.3(1)]
2. any charge of 264 [criminal harassment], 271 [sexual assault], 272 [sexual assault with a weapon/causing bodily harm] and 273 [aggravated sexual assault] (mandatory) [s. 486.3(2)]
3. any charge where it is necessary to "allow the giving of a full and candid account from the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice" (discretionary) [s. 486.3(3)]

Section 486.3 reads:

Accused not to cross-examine witness under 18

486.3 (1) In any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years, or on application of such a witness, order that the accused not personally cross-examine the witness, unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. If such an order is made, the judge or justice shall appoint counsel to conduct the cross-examination.

Accused not to cross-examine complainant — certain offences

(2) In any proceedings against an accused in respect of an offence under any of sections 264 [criminal harassment], 271 [sexual assault], 272 [sexual assault with a weapon or causing bodily harm] and 273 [aggravated sexual assault], the judge or justice shall, on application of the prosecutor in respect of a witness who is a victim, or on application of such a witness, order that the accused not personally cross-examine the witness, unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. If such an order is made, the judge or justice shall appoint counsel to conduct the cross-examination.

Other witnesses

(3) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness who is not entitled to make an application under subsection (1) [accused not to cross-examine witness under 18] or (2) [accused not to cross-examine complainant — certain offences], or on application of such a witness, order that the accused not personally cross-examine the witness if the judge or justice is of the opinion that the order would allow the giving of a full and candid account from the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice. If the order is made, the judge or justice shall appoint counsel to conduct the cross-examination.

Factors to be considered

(4) In determining whether to make an order under subsection (3) [accused not to cross-examine complainant — other circ.], the judge or justice shall consider

(a) the age of the witness;

(b) the witness’ mental or physical disabilities, if any;

(c) the nature of the offence;

(d) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

(e) the nature of any relationship between the witness and the accused;

(f) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and

(g) any other factor that the judge or justice considers relevant.

Application

(4.1) An application referred to in any of subsections (1) to (3) [testimony outside court room – requirements for eligibility] may be made during the proceedings to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or justice has not been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.

No adverse inference

(5) No adverse inference may be drawn from the fact that counsel is, or is not, appointed under this section.
2005, c. 32, s. 15; 2015, c. 13, s. 16.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Under 486.3(2), the Crown can seek to have the court appoint a lawyer to the accused for the purpose of conducting a cross-examination where the judge is "...of the opinion that, in order to obtain a full and candid account from the witness of the acts complained of, the accused should not personally cross-examine the witness.”

The initial onus lies on the crown to establish that the presumption in s.486.3 applies. This onus is on the balance of probabilities. If established, it is on the accused to establish that the proper administration of justice requires that the presumption should not be followed.

This section trumps the right to cross examine as the accused sees fit.

Factors to be considered include the circumstances of the case, the nature of the relationship between the accused and the witness and the nature of the alleged criminal acts. As well as the likelihood of the accused being aggressive and whether the questioning by the self-represented accused would be focused, rational, and relevant.

The court has no jurisdictions to set the rate of remuneration for counsel.