Right to Self-Representation

General Principles

Constitutionally and through statute under s. 651(2) and (3), an accused has a right to represent themselves.^[1]

No Special Advantages

A self-represented accused is not to be afforded any "special advantages" where they chose to go without counsel. The right to make full answer and defence, adduce relevant evidence and make argument remains, but they are not permitted to engage in endless calling of irrelevant evidence.^[2]

Challenges of Self-Representation

There are various problems that arise from an accused who represents himself. That includes a rudimentary understanding of the process, misleading depictions from popular media, lack of knowledge of proper procedure and rules of evidence.^[3]

↑ R v Swain, 1991 CanLII 104 (SCC), [1991] 1 SCR 933, per Lamer CJ, at p. 972 ("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. ... If at any time before verdict there is a question as to the accused's ability to conduct his or her defence, the trial judge may direct that the issue of fitness to stand trial be tried before matters proceed further (see Criminal Code, s. 543, now s. 615). Thus, an accused who has not been found unfit to stand trial must be considered capable of conducting his or her own defence.")
R v Imon-Russel, 2019 ONCA 252 (CanLII), per Lauwers JA, at para 67 ("An accused also has the right to discharge counsel including counsel appointed under a Rowbotham order, but since amicus does not represent the accused person, the accused person may not discharge amicus.")
R v Chemama, 2016 ONCA 579 (CanLII), per Brown JA, at para 58 ("An accused has an unfettered right to discharge his or her legal counsel at any time and for any reason. A court cannot interfere with this decision and cannot force counsel upon an unwilling accused")
↑ Ontario, Ministry of the Attorney General, Report of the Review of Large and Complex Criminal Case Procedures, by The Honourable P. LeSage & Professor M. Code (Toronto: Queen’s Printer for Ontario, 2008) at 159-6
↑ R v Bain, 2014 QCCS 1625 (CanLII)(complete citation pending), at para 24 ("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 procedure 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.")

Obligations on Court

See also: Role of Trial Judge

When the accused is self-represented, the court has obligations to ensure that they do not favour one side over the other and also take steps to ensure that the trial is not unfair to a point where there is a miscarriage of justice.^[1]

There is a "heavy onus" on the court to provides assistance.^[2]

The Court should only take steps that would be reasonable to assist the accused without becoming counsel for the accused.^[3]

Types of Assistance

The trial judge has properly assisted self-represented accused in the following manners:

explain the trial process;^[4]
identify relevant issues;^[5]
explain how to properly phrase questions for a witness;^[6]
explain the necessary steps when using exhibits or transcripts;^[7]
offering materials on trial practice;^[8]
exhibiting tolerance to their behaviour due to lack of understanding;
ensuring that the accused had an opportunity to meet and speak with witnesses.^[9]

Charter Issues

This obligation may include raising Charter issues on the court's own motion.^[10] This obligation will apply where there is uncontradicted evidence of a breach. However, it must be more than a "mere scent or intimation" of a breach.^[11]

↑ R v Varcoe, 2007 ONCA 194 (CanLII)(complete citation pending), at para 26 (“It is a fine line that trial judges are required to walk in dealing with unrepresented and self-represented accused persons. Trial judges are to avoid any conduct that may be seen to favour one side over the other and to maintain their independence as between the two. This obligation must be balanced against the need to take steps to ensure that no miscarriage of justice occurs as a result of an unrepresented accused”)
R v Jayne, 2008 ONCA 258 (CanLII)(complete citation pending)
R v Richards, 2017 ONCA 424 (CanLII), per Watt JA, at para 110 ("Where an accused is self-represented, a trial judge has a duty to ensure that the accused has a fair trial. To fulfill this duty, the trial judge must provide guidance to the accused to the extent the circumstances of the case and accused may require. Within reason, the trial judge must provide assistance to aid the accused in the proper conduct of his defence and to guide him as the trial unfolds in such a way that the defence is brought out with its full force and effect:...")
Tossounian, supra
R v Sabir, 2018 ONCA 912 (CanLII), per Strathy CJ
R v Meloche, 2019 ONCA 521 (CanLII), per curiam
↑ Ricards, supra, at para 112 ("The onus on the trial judge to assist the self-represented accused is a heavy one.")
↑ Richards, supra, at para 111 ("The duty owed by trial judges to self-represented litigants is circumscribed by a standard of reasonableness. The trial judge is not, and must not become, counsel for the accused. The judge is not entitled, indeed prohibited, from providing the assistance of the kind counsel would furnish when retained to do so ... A standard of reasonableness accommodates a range of options to ensure the necessary degree of assistance and eschews a single exclusive response.")
↑ R v Galna, 2007 ONCA 182 (CanLII), per curiam, at para 6 (ONCA positively observed that "[t]he trial judge repeatedly assisted the appellant including by identifying the relevant issues and assisting him in framing questions to elicit evidence that would be admissible and relevant. He loaned the appellant a book on trial practice and gave an overview of the trial process.")
R v Jayne, 2008 ONCA 258 (CanLII)(complete citation pending), at para 6 ("In our view, the trial judge adequately and fairly assisted the appellant during the trial in a number of ways, including by explaining the process to the appellant, explaining how to use the preliminary inquiry transcript, ensuring that the appellant had the opportunity to speak with witnesses, assisting the appellant with framing questions and in dealing with evidentiary matters.")
↑ Galna, ibid., at para 6
↑ Galna, supra, at para 6
Jayne, supra, at para 6
↑ Jayne, supra, at para 6
↑ Galna, ibid., at para 6
↑ Jayne, supra, at para 6
↑ Richards, supra, at para 113 ("The onus extends, at least can extend, to an obligation on the trial judge to raise Charter issues on the judge’s own motion where the accused is self-represented")
↑ Richards, supra, at para 113 ("This is not to say, however, that this specific obligation becomes engaged on the mere scent or intimation of a possible Charter infringement: ... But where there is admissible uncontradicted evidence of a relevant Charter breach, the trial judge has an obligation to raise the issue, invite submissions and enter upon an inquiry into the infringement and its consequences:")

Obligations of Crown

See also: Role of the Crown

Where an accused is self-represented the Crown should make additional efforts to ensure that disclosure has been made. The accused's failure to receive disclosure, through no fault of their own, may be considered a failure on the part of Crown.^[1]

In certain circumstances, there will be an obligation upon the Crown to at the least alert the judge or accused of a possible Charter violation.^[2]

↑ R v Tossounian, 2017 ONCA 618 (CanLII), , 254 CCC (3d) 365, per Juriansz JA
↑ e.g. R v Breton, 2018 ONCA 753(*no CanLII links) , at para 14

[1] R v Swain, 1991 CanLII 104 (SCC), [1991] 1 SCR 933, per Lamer CJ, at p. 972 ("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. ... If at any time before verdict there is a question as to the accused's ability to conduct his or her defence, the trial judge may direct that the issue of fitness to stand trial be tried before matters proceed further (see Criminal Code, s. 543, now s. 615). Thus, an accused who has not been found unfit to stand trial must be considered capable of conducting his or her own defence.")
R v Imon-Russel, 2019 ONCA 252 (CanLII), per Lauwers JA, at para 67 ("An accused also has the right to discharge counsel including counsel appointed under a Rowbotham order, but since amicus does not represent the accused person, the accused person may not discharge amicus.")
R v Chemama, 2016 ONCA 579 (CanLII), per Brown JA, at para 58 ("An accused has an unfettered right to discharge his or her legal counsel at any time and for any reason. A court cannot interfere with this decision and cannot force counsel upon an unwilling accused")

[2] Ontario, Ministry of the Attorney General, Report of the Review of Large and Complex Criminal Case Procedures, by The Honourable P. LeSage & Professor M. Code (Toronto: Queen’s Printer for Ontario, 2008) at 159-6

[3] R v Bain, 2014 QCCS 1625 (CanLII)(complete citation pending), at para 24 ("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 procedure 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.")

[4] R v Varcoe, 2007 ONCA 194 (CanLII)(complete citation pending), at para 26 (“It is a fine line that trial judges are required to walk in dealing with unrepresented and self-represented accused persons. Trial judges are to avoid any conduct that may be seen to favour one side over the other and to maintain their independence as between the two. This obligation must be balanced against the need to take steps to ensure that no miscarriage of justice occurs as a result of an unrepresented accused”)
R v Jayne, 2008 ONCA 258 (CanLII)(complete citation pending)
R v Richards, 2017 ONCA 424 (CanLII), per Watt JA, at para 110 ("Where an accused is self-represented, a trial judge has a duty to ensure that the accused has a fair trial. To fulfill this duty, the trial judge must provide guidance to the accused to the extent the circumstances of the case and accused may require. Within reason, the trial judge must provide assistance to aid the accused in the proper conduct of his defence and to guide him as the trial unfolds in such a way that the defence is brought out with its full force and effect:...")
Tossounian, supra
R v Sabir, 2018 ONCA 912 (CanLII), per Strathy CJ
R v Meloche, 2019 ONCA 521 (CanLII), per curiam

[5] Ricards, supra, at para 112 ("The onus on the trial judge to assist the self-represented accused is a heavy one.")

[6] Richards, supra, at para 111 ("The duty owed by trial judges to self-represented litigants is circumscribed by a standard of reasonableness. The trial judge is not, and must not become, counsel for the accused. The judge is not entitled, indeed prohibited, from providing the assistance of the kind counsel would furnish when retained to do so ... A standard of reasonableness accommodates a range of options to ensure the necessary degree of assistance and eschews a single exclusive response.")

[7] R v Galna, 2007 ONCA 182 (CanLII), per curiam, at para 6 (ONCA positively observed that "[t]he trial judge repeatedly assisted the appellant including by identifying the relevant issues and assisting him in framing questions to elicit evidence that would be admissible and relevant. He loaned the appellant a book on trial practice and gave an overview of the trial process.")
R v Jayne, 2008 ONCA 258 (CanLII)(complete citation pending), at para 6 ("In our view, the trial judge adequately and fairly assisted the appellant during the trial in a number of ways, including by explaining the process to the appellant, explaining how to use the preliminary inquiry transcript, ensuring that the appellant had the opportunity to speak with witnesses, assisting the appellant with framing questions and in dealing with evidentiary matters.")

[8] Galna, ibid., at para 6

[9] Galna, supra, at para 6
Jayne, supra, at para 6

[10] Jayne, supra, at para 6

[11] Galna, ibid., at para 6

[12] Jayne, supra, at para 6

[13] Richards, supra, at para 113 ("The onus extends, at least can extend, to an obligation on the trial judge to raise Charter issues on the judge’s own motion where the accused is self-represented")

[14] Richards, supra, at para 113 ("This is not to say, however, that this specific obligation becomes engaged on the mere scent or intimation of a possible Charter infringement: ... But where there is admissible uncontradicted evidence of a relevant Charter breach, the trial judge has an obligation to raise the issue, invite submissions and enter upon an inquiry into the infringement and its consequences:")

[15] R v Tossounian, 2017 ONCA 618 (CanLII), , 254 CCC (3d) 365, per Juriansz JA

[16] .g. R v Breton, 2018 ONCA 753(*no CanLII links) , at para 14

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