Of the many challenges facing trial judges, one of the greatest is conducting proceedings with a self-represented accused. Invariably the self-represented accused comes to court with only a rudimentary knowledge of the trial process, often influenced by misleading depictions from television shows and the movies. He or she is unfamiliar with the substantive law, is confused by procedural requirements, and has difficulty grasping concepts such as relevance.
The burgeoning number of self-represented accused in the criminal courts may be explained by cut-backs to legal aid funding across the country, the cost of legal services, mental health problems that make it difficult for some accused to accept assistance form any lawyer, and even the sincere belief, fostered by movies and television shows, that anyone can perform as Perry Mason given the chance.
Increasingly, however, trial judges are faced with a new breed of self-represented accused. He or she is argumentative, rude, and disrespectful of authority. He or she seizes every available opportunity to remind the trial judge about fair trial rights, yet engages in tactics that serve no purpose other than to delay and obstruct the proceedings. He or she comes to court with an annotated Criminal Code and a stack of highlighted cases, but makes no effort to comply with the rules of procedure, even once informed about them by the presiding judge. Attempts by the trial judge to move the proceedings along in an orderly fashion are met by the refrain “But I’m an unrepresented accused who is without counsel”. Section 7 of the Charter is mentioned early, and often.
This is the self-represented accused who purposely foregoes counsel in order to cause as much disruption as possible to the trial, in the hope of derailing the proceedings. If unsuccessful in that attempt, this sort of self-represented accused has no hesitation about arguing on appeal that the trial judge, whose every direction he ignored, failed to give him or her the appropriate assistance.
This new generation of self-represented accused poses the most difficulty for trial judges, and the greatest challenge to an administration of justice that is already tested by demands that self-represented litigants place on the system.
Numerous examples of efforts to delay and disrupt the trial are noted in reported cases. The behaviour includes asking irrelevant questions of witnesses, and then arguing with the judge after rulings that specific questions could not be put; deliberately pausing for several minutes between questions of witnesses; asking witnesses to testify to hearsay even after the trial judge explained the objectionable nature of such evidence; asking individual witnesses the same question four or five times over; calling dozens of marginal defence witnesses so as to delay taking the witness box; repeatedly complaining to the jury that the trial judge would not compel the attendance of a particular witness; making long statements to the jury about irrelevant matters; and using profane and inflammatory language.
Appellate courts have sometimes supported the attempts of trial judges to control the difficult self-represented accused, as did the Quebec Court of Appeal in the notorious case of Fabrikant. But in other instances, trial judges have not fared well on appeal.
It is not surprising that trial judges have a sense of uncertainty about how far they can legitimately go in attempting to control the difficult self-represented accused. No trial judge aspires to be unfair, regardless of his or her level of frustration with an accused’s conduct. Few trial judges relish reversal by the Court of Appeal on the ground that they improperly shut down a self-represented accused’s cross-examination or closing address. They are understandably uneasy about taking this step, even in egregious cases. Resort to the contempt power has little impact where the accused is already in pre-trial custody and is facing the potential of a long jail sentence at the end of the trial. Excluding the accused from the courtroom is viewed as an option reserved for the most egregious cases.
Is it time to rethink the broad proposition that counsel can never be imposed on an accused who wishes to represent him or herself? The decision to self-represent has been described as a principle of fundamental justice, and even as a right. Any interference with it cannot be undertaken lightly. But section 486.3 of the Criminal Code already provides a limited exception to an accused’s ability to self-represent. That section empowers a judge to make an order appointing counsel for the purpose of cross-examining one or more witnesses, even over the objection of the accused. Should this power to appoint counsel be extended to the conduct of a trial as a whole, in circumstances where the presiding judge is satisfied that the proper administration of justice requires that the accused not act for him or herself, because, for example, he or she has shown an unwillingness to follow judicial direction?
What if the various courts used their rule-making power to explicitly state what some appellate courts have suggested, that abuse of the opportunity to ask questions of witnesses, call witnesses, or make submissions can result in the loss of that opportunity, or at least its curtailment, for example, by the imposition of time limits on questioning of witnesses or making of submissions?
Is s. 650(2) of the Criminal Code worded too narrowly? That section permits a judge to order an accused removed from the courtroom where he misconducts himself by interrupting the proceedings so that to continue in his presence would not be feasible. Arguably, this provision does not extend to the accused who persists in asking repetitive, irrelevant or improper questions, or who deliberately tries to delay or slow down the proceedings, or who repeatedly fails to abide by judicial direction. Should the provision be amended to apply not only where the accused interrupts the proceedings, but also where the accused impedes the orderly conduct of the proceedings, for example by failing to follow the instruction of the presiding judge?
If complete exclusion from the courtroom is thought too harsh a response to misconduct, should judges at least have the explicit power to require the hard to manage self-represented accused to participate in the proceedings by video link from somewhere in the courthouse other than the courtroom?
Lastly, should s. 475 of the Criminal Code, which deals with an accused who absconds during his trial, be amended to explicitly permit the judge to deem the accused to have absconded in certain circumstances? Such circumstances might include where the accused refuses to leave the jail or come out of the courthouse cells, or where he or she feigns illness or injury in an attempt to delay the proceedings when a request for adjournment is refused–all scenarios that trial judges have faced.
The trial judge has a duty to assist the self-represented accused in the proper conduct of the defence, and to guide him or her throughout the trial. But this should not mean that the judge must endure manipulative or obstructive behaviour on the part of that accused. Unless and until trial judges have the necessary tools to control the obstructionist self-represented accused, the objective of a fair trial on the merits remains at risk.