Transcript Justice Michelle Fuerst_Dealing with the Self

Justice Michelle Fuerst
Superior Court of Justice
Newmarket, Ontario
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Cutbacks to legal aid funding
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Cost of legal services
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Mental health problems
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“No lawyer could do it like I can”
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Anything to derail the trial
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R. v. Fabrikant, [1995] Q.J. No. 300 (Que. C.A.)
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R. v. Howell (1995), 103 C.C.C. (3d) 302 (N.S.C.A.)
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R. v. F. (D.P.), 1999 CarswellNfld 55 (C.A.)
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R. v. Pawliw, 1985 CarswellBC 829 (Sup. Ct.)
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R. v. Wills, 2011 ONCA 468
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Accused has constitutional right to represent
him/herself: R. v. Swain, [1991] 1 S.C.R. 933,
at p. 972
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Cannot be forced to retain counsel against
his/her will
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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
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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.)
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Judge cannot be both advocate and impartial
arbiter
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“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
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Depends on circumstances of case; a
“contextual” approach
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Relevant factors include:
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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
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Trial judge required to:
 Inform accused of what Crown must prove and of
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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
 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.)
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Crown should be vigilant where accused selfrepresented
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Crown should suggest additional areas to be
canvassed with accused if trial judge’s initial
instructions or information fall short
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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
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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
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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.)
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Source of confusion
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In some instances, appellate courts have
approved trial judge’s appointment of amicus to
assist self-represented accused in lieu of defence
counsel
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Recently clarified in Ontario v. Criminal Lawyers’
Association of Ontario, 2013 SCC 43
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Majority judgment authored by Karakatsanis J.;
Fish J. (with 3 others) wrote in dissent
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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
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In each case, amicus refused to accept legal
aid rate of pay
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In each case, trial judge fixed rate of pay
exceeding legal aid tariff and ordered
provincial A.G. to pay it
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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
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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
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Amicus cannot be appointed to mirror role of
defence counsel
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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
-- Can result in judge doing indirectly what cannot
do directly, i.e. give accused strategic advice
– Could undermine provincial legal aid scheme
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“[A] lawyer appointed as amicus who takes on
the role of defence counsel is no longer a
friend of the court”: Para. 5
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Court can “set terms to give effect to their authority to
appoint amici”: Para. 64
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Precise boundaries of role left unclear; some recognition
that amicus can be appointed to assist, but not act for,
accused: See para. 73
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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
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Is not to be routine way of getting complex trials
completed
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Judge who appoints amicus does not have power
to set rate of compensation, or order enhanced
compensation
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Is for provincial A.G. to determine because
concerns expenditure of public funds
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May be provided for in legislation establishing
provincial legal aid plan, as in Manitoba
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Or, province may set up roster of available
counsel who will act at rates set by A.G.
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If court-appointed amicus and A.G. cannot
agree on rate of compensation, judge may
have to impose stay until amicus can be found
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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)
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Whether or not judge appoints amicus, Code empowers
judge to appoint counsel to cross-examine one or more
witnesses in certain circumstances
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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
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Note: s. 486.3(4) similarly worded in respect of alleged
victim of criminal harassment
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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
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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?
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Decision in Criminal Lawyers’ Association
would seem to apply to prevent judge who
appoints cross-examining counsel from fixing
rate of compensation