Right to Self-Representation

From Criminal Law Notebook
This page was last substantively updated or reviewed December 2021. (Rev. # 92703)

General Principles

See also: Accused in Court and Representation at Trial

Representation by counsel is not necessary to have a fair trial.[1] An accused person may always choose to represent him or herself. However, individuals who represent themselves are not entitled to legal advice and strategy advice from the judge.[2]

Fairness of Trial

A person who does not receive a fair trial due to representing him or herself where counsel was available will not normally be given any remedy.[3]

In a "vast majority of cases," the duties of the court and Crown counsel will be sufficient to prevent a miscarriage for unrepresented accused.[4]

Right to Self-Representation

Constitutionally and through statute under s. 651(2) and (3), an accused has a right to represent themselves.[5]

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.[6]

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.[7]

Right of Cross-Examination

A self-represented accused may cross-examine witnesses except on trials involving one or more charges listed in s. 486.3. In those cases, the self-represented accused must apply to the court to have cross-examination counsel to examine the complainants.[8]

  1. R v Rain, 1998 ABCA 315 (CanLII), 130 CCC (3d) 167, per Sulatycky JA, at p. 182 ("Representation by a lawyer is not a prerequisite for a fair trial. A person is entitled to represent himself or herself and when he or she does so, there are other means which are intended to protect the right to a fair trial, the foremost being the duty of every trial judge to ensure that all persons receive a fair trial.")
  2. R v Gendreau, 2011 ABCA 256 (CanLII), per curiam, at para 28
  3. R v Crichton, 2015 BCCA 138 (CanLII), 319 CCC (3d) 504, per Bennett JA, at para 23 ("if a person does not receive a fair trial because he or she chose to represent him or herself, even when counsel was available, then the fault lies with the accused and no remedy is available")
  4. R v Kahsai, 2023 SCC 20 (CanLII), per Karakatsanis J, at para 57
  5. 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), 145 OR (3d) 197, 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), 351 OAC 381, 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")
  6. 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
  7. R v Bain, 2014 QCCS 1625 (CanLII), per Cournoyer J, 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.")
  8. see more Cross-Examinations#Cross-Examination_by_Self-Represented_Accused

Obligations on Court

See also: Role of Trial Judge

The trial judge has an obligation to ensure that a self-represented individual has a fair trial. This means that the judge must do anything possible to "prevent unfair disadvantage to self-represented persons."[1] This can include:

  • assisting in the conduct of the defence to ensure that the defence is effectively brought out[2]
  • explaining the relevant law and its implications[3]
  • discussing procedural options
  • providing litigants with assistance in understanding and asserting their rights and raising arguments

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.[4]

Onus to Provide Assistance

There is a "heavy onus" on the court to provides assistance.[5]

Necessary Steps at Discretion of Court Based on What is Reasonable

The amount of assistance to provide is a matter of the court's discretion. The judge does not need to become the accused's advocate, but must provide a "minimum level of assistance" to ensure a fair trial. [6]

The Court should only take steps that would be reasonable to assist the accused without becoming counsel for the accused.[7]

Duty to Ensure Full Force and Effect of Defence

The trial judge must help the self-represented accused "in such a way that his defence, or any defence the proceedings may disclose, is brought out to the jury with its full force and effect.."[8]

Not Equivalent to Effectiveness of Counsel

The right to a fair trial does not require the self-presented accused to present their case "as effectively as a competent lawyer."[9]

Duty to Ensure Comprehension

A judge has a duty to ensure that the accused has a "functional understanding of proper procedures and the proper manner of presenting a case."[10]

Types of Assistance

Conducting a fair trial with a self-represented accused requires a "significant degree of instruction and vigilance." This will generally require that the judge explain the course which the trial is to take, including:[11]

  1. the arraignment,
  2. the calling of crown witnesses,
  3. the right to cross-examine witnesses,
  4. the right to object to irrelevant evidence
  5. the right to call witnesses,
  6. the right and associated risks with the decision to testify
  7. the right to make closing arguments

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

  • explain the trial process;[12]
  • identify relevant issues;[13]
  • explain how to properly phrase questions for a witness;[14]
  • explain the necessary steps when using exhibits or transcripts;[15]
  • offering materials on trial practice;[16]
  • exhibiting tolerance to their behaviour due to lack of understanding;
  • ensuring that the accused had an opportunity to meet and speak with witnesses.[17]
Charter Issues

This obligation may include raising Charter issues on the court's own motion.[18] 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.[19]

  1. R v Vaca, 2021 ABCA 174 (CanLII), at para 22 ("Courts have an obligation to do everything possible to prevent unfair disadvantage to self-represented persons.")
  2. R v Moghaddam, 2006 BCCA 136 (CanLII), 206 CCC (3d) 497, per Levine JA at 35
  3. Vaca, supra
  4. R v Varcoe, 2007 ONCA 194 (CanLII), 219 CCC (3d) 397, per MacFarland JA, 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), 90 OR (3d) 37, per curiam
    R v Richards, 2017 ONCA 424 (CanLII), 349 CCC (3d) 284, 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), 367 CCC (3d) 426, 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.")
    R v Darlyn, 1946 CanLII 248 (BC CA), 88 CCC 269, per O'Halloran JA
    R v Wheelton, 1992 CanLII 2816 (YK CA), CCC (3d) 476 per McEachern CJ at 488 (CCC)
  6. R v Tran, 2001 CanLII 5555 (ON CA), [2001] OR (3d) 161, per Borins JA, at para 31
    R v Moreno-Baches, 2002 CanLII 3007 (ONSC), [2002] OJ No 4480, per Juriansz J, at para 6
  7. 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.")
  8. R v Darlyn, 1946 CanLII 248 (BCCA), 88 CCC 269 (BCCA), per O’Halloran JA, at p. 3
    R v McGibbon, (1988), 1988 CanLII 149 (ON CA), 45 CCC (3d) 334, per Griffiths JA at 347 ("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.")
  9. R v Neidig, 2018 BCCA 485 (CanLII), 425 CRR (2d) 262, per Frankel JA, at para 93
  10. R v Morillo, 2018 ONCA 582 (CanLII), 362 CCC (3d) 23, per Paciocco JA(chambers)
  11. Tran, supra at 33
  12. 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), 90 OR (3d) 37, per curiam, 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.")
  13. Galna, ibid., at para 6
  14. Galna, supra, at para 6
    Jayne, supra, at para 6
  15. Jayne, supra, at para 6
  16. Galna, ibid., at para 6
  17. Jayne, supra, at para 6
  18. 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")
  19. 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]

  1. R v Tossounian, 2017 ONCA 618 (CanLII), 254 CCC (3d) 365, per Juriansz JA
  2. e.g. R v Breton2018 ONCA 753(*no CanLII links) , at para 14