The Duty on Trial Judge's to Assist at Trial
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.
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.
The onus on the trial judge to assist the self-represented accused is a heavy one. This characterization means that it is not enough that the verdict at the end of the trial is or appears correct. What matters is whether the trial has been fair to the self-represented accused.
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. 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: R v Richards, 2017 ONCA 424 at paras 110-114
For example, in Richards, the Court of Appeal found that the trial judge failed to discharge his onus of assisting the self-represented accused in raising a Charter breach of his section 10(b) rights. The evidence revealed a foundation for advancing a breach of the accused's Charter right and exclusion of evidence under section 24(2). The failure of the trial judge to assist the accused by inquiring into this issue "amounted to a failure to provide the appropriate degree of assistance to a self-represented litigant against whom the police interview was the most significant piece of evidence."
Importantly, the Court held that "In these circumstances, the correctness or otherwise of the findings of guilt is beside the point. The appellant’s trial was unfair, a consequence that cannot be made whole by the application of either s. 686(1)(b)(iii) or s. 686(1)(b)(iv):" paras 120-124
See also R v Tossounian, 2017 ONCA 618 at paras 36-38
The Duty on Trial Judges to Assist with Outstanding Disclosure
A trial judge has a duty to assist a self-presented accused who is having difficulty accessing disclosure. Although the courts have recognized that diligence on the part of defence counsel is relevant in determining whether there has been a breach of the right to disclosure, because pre-trial custody may involve institutional rules that are inhospitable to accessing disclosure, as well as unpredictable events, such as lockdowns, an accused person has little scope for exercising initiative in relation to disclosure. Consequently, the standard of diligence expected in the circumstances must necessarily be minimal.
As soon as it seems that there is a problem with disclosure, it is the duty of the trial judge to make the necessary inquiries and to take the necessary steps to ensure that the unrepresented accused receives full disclosure, and that s/he fully understands his/her rights to disclosure and the available remedies for infringement of those rights: R v Tossounian, 2017 ONCA 618 at paras 19, 35
The Duty on Trial Judges at Sentencing
A sentencing judge must obtain or consider information about a self-represented litigant's personal circumstances on sentencing. The failure to do so constitutes an error of law: R v Davies, 2017 ONCA 467