Judges Duty to Assist Unrepresented Litigant

Does a judge have a duty to assist. Yes, they do.

TIP: never refer to yourself as self-represented but being unrepresented – you are “presenting” yourself to the court not re-presenting (real vs fiction)


R. v. Martin, 2010 BCCA 526 (CanLII), <http://canlii.ca/t/2dk4r>


(a)      Assistance to a self-represented litigant

[14]           One of the most difficult issues facing our legal system is the unrepresented litigant.  A trial judge has an obligation to ensure that an accused has a fair trial.  Part of this duty includes providing adequate assistance to an accused who is self-represented at trial.  As Mr. Justice O’Halloran said in R. v. Darlyn (1946), 88 C.C.C. 269 (B.C.C.A.) at 271-272:

            There are two traditional common law rules which have become so firmly imbedded in our judicial system that a conviction is very difficult to sustain on appeal if they are not observed.  The first is, that if the accused is without counsel, the Court shall extend its helping hand to guide him throughout the trial 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. The second is, that it is not enough that the verdict in itself appears to be correct, if the course of the trial has been unfair to the accused.  An accused is deemed to be innocent, it is in point to emphasize, not until he is found guilty, but until he is found guilty according to law.

[15]           This duty is well-known and most trial judges do their utmost to assist unrepresented litigants.  The law, however, does not require the judge to step into the shoes left empty by the absence of defence counsel.  He or she is not expected to formulate the accused’s defence or, in all circumstances, to cross-examine witnesses.  To do so would result in the judge becoming an advocate for a party rather than an impartial arbiter.  The judge must do what is reasonable in the circumstances within the exercise of his or her discretion.

[16]           The law is well summarized by Ryan J. (as she then was) in R. v. Parton[1994] B.C.J. No. 2098 (S.C.) at paras. 5-17:

            One of the most difficult situations a trial judge must face is the case of an unrepresented accused.

            Mastering the substance and procedure of criminal law takes many years. A lay person, no matter how intelligent or well-motivated, generally comes to the courtroom unequipped to conduct a trial.

            In some cases the person accused cannot afford the services of a lawyer. In other cases the person accused prefers to conduct his-or-her own defence. Occasionally the accused is adequately informed but usually the person does not have even the most rudimentary understanding of such things as the charge he-or-she faces, the burden on the Crown, or the role of the defence. Unfortunately it is not uncommon for the accused to have derived his-or-her notions about the legal system from unrealistic television or movie portrayals. As a result there is often much time expended by an unrepresented accused in a trial investigating clear irrelevancies. Trials conducted by a lay litigant can be much longer than those where counsel is present. This creates more pressure on crowded court dockets and cannot but try the most patient of judges.

            Traditionally trial judges have recognized these difficulties and have done their best to ensure that every accused, who for whatever reason is unrepresented, receives a fair trial.

Ryan J. then summarized the case law and said at para. 16:

            In summary then, the case law appears to require the trial judge to provide assistance to an unrepresented accused with respect to the applicable procedural law in each case. The trial judge must, in addition, try to ensure that the accused’s defence is brought out in full force and effect. If the trial judge decides that this means that in a particular case he-or-she must question witnesses the trial judge must guard against forfeiting his-or-her role as an impartial arbiter. The balance is difficult to maintain.

Ryan J.’s statements were adopted by this Court in R. v. P.H.L.W.2004 BCCA 522 (CanLII), at para. 8.

[27]           The trial judge referred to her obligation to assist Mr. Martin a number of times during the course of the pre-trial conferences and the trial.  She was alive to the duty imposed on her by the common law.

[31]           Mr. Martin says that he was not given assistance in four key areas:  the law of conspiracy, the rule against hearsay, the intercepted communications, and cross-examination of witnesses.

[38]           However, over the weekend, prior to the evidence being introduced, she read all of the intercepted calls which were to be tendered by the Crown.  She called for a conference on the morning of June 19 in advance of the resumption of the trial after the weekend.  She was concerned by some of the content of the intercepted calls in that they had no probative value and reflected poorly on Mr. Martin’s character.  She explained to him the rule of admissibility with respect to the weighing of probative value and prejudicial effect.  The material that concerned her was edited out of the transcript and the jury did not hear or read it.

(v)  Amicus curiae

[46]           Mr. Martin submits that regardless of the assistance provided to him by the trial judge, the case against him was so complicated and he was so unsophisticated that he could not have received a fair trial unless the trial judge appointed an amicus curiae to assist him.

[47]           It is useful to examine what constitutes a “fair trial”.  A clear statement is found in R. v. Harrer1995 CanLII 70 (SCC)[1995] 3 S.C.R. 562 at para. 45:

   At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community.  A fair trial must not be confused with the most advantageous trial possible from the accused’s point of view: R. v. Lyons1987 CanLII 25 (SCC)[1987] 2 S.C.R. 309, at p. 362per La Forest J.  Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained.  A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused.

[48]           A fair trial is not a perfect trial.  Perfect justice cannot be attained, in spite of the diligence of those who labour daily to protect the public interest and the rights of an accused.  The role of this Court is not to determine whether the accused had the most favourable trial possible, but whether the record demonstrates that a miscarriage of justice occurred.  With that in mind, I turn to the question of whether despite of all of the assistance provided to Mr. Martin by the trial judge, the nature of the trial itself required an amicus curiae to be appointed in order to avoid an injustice.

[49]           A trial judge has the discretion to appoint an amicus curiae.  However, if the amicus is to receive reimbursement, the Attorney General must agree to the appointment:  see R. v. P.H.L.W. supra, and R. v. Miner[1997] B.C.J. No. 625 (C.A.).  There are a number of instances in this province where this step has been taken:  see, for example, R. v. Grabowski2006 BCSC 1124 (CanLII) and R. v. Benji2006 BCSC 1370 (CanLII).  The role of the amicus is that of “friend of the court”; and is generally appointed to assist the court on a point of law.  However, it is not uncommon for an amicus to provide legal assistance to an unrepresented accused.  The person who is best able to ascertain whether an unrepresented litigant has the ability to represent himself during a trial is the trial judge, who deals with the person on a day to day basis.  There may be occasions where the trial judge does not recognize the difficulty an accused is having, or is unaware of assistance which may be provided.  See, for example, R. v. P.H.L.W.supra.  But by and large, an experienced trial judge will quickly recognize whether an accused is incapable of conducting his or her defence.  Normally, this can be addressed by a Rowbotham application.  However, where, as in this situation, an accused is in a position to hire counsel but opts to represent himself, the appointment of an amicuswill only be an option if he is unable to adequately put his defence before the jury.

[50]           Mr. Martin was being tried by a very experienced trial judge.  Her observations in assessing whether Mr. Martin was capable of representing himself are useful.  At one point during the trial, the trial judge said:  “I have had a lot of experience with in-person litigants, and you’re in the upper echelons at the moment.  I can tell you, you’re doing fine”.  She made similar comments throughout the trial.

[51]           While the observations of the trial judge will not be definitive on whether an appellant has had a fair trial, it is reflective of how the trial judge perceived the situation.  When these comments are considered, along with the record, it is clear that Mr. Martin was capable of representing himself and that he received a fair trial.  There was no need for the assistance of an amicus curiae.