Steering Committee On Justice Efficiencies And
Access To The Justice System [1]

Report on the Self- represented Accused[2]

1. Introduction

1.1

The rights of the accused[3] are best protected and the criminal justice system functions most effectively and efficiently when the accused is represented by counsel. However, self-represented accused (SRA) are increasingly coming before the courts. Some SRAs have counsel early in the process but because of poor interpersonal skills (e.g. as a result of mental or emotional problems) are no longer represented.[4] The purpose of this report is to recommend ways in which the criminal justice system can best address the challenges posed by SRAs.

1.2

Many accused do not retain counsel because of a lack of financial means. When these accused are facing significant consequences in the event of conviction, it is important that they have access to a legal aid plan resourced in accordance with the government’s fiscal capacity and priorities. It is also important that law societies continue to promote pro bono work. Some accused choose not to be represented and this is their right. It is important that these accused make an informed choice.

1.3

The access to justice of an accused should not be limited based on the fact that the accused is self-represented. The criminal justice system must continue to adapt to improve its efficiency in cases involving SRA and to facilitate their access to justice.

1.4

Responsibility for facilitating the access to justice of SRAs and improving the efficiency of cases involving SRAs is shared by all criminal justice system participants.

2.  Pre-Trial Procedures Involving the Self-Represented Accused

2.1

The judge[5] before whom a SRA appears should explain to the SRA how important it is to be represented by counsel. The judge should ask the accused why he is unrepresented. If the SRA wants to be represented, the trial judge should find out if there is any reasonable thing that could be done to assist the accused in getting representation. The SRA should be told that it is his responsibility to retain counsel or an agent and the proceedings will not be unduly delayed by a failure on the part of the accused to exercise due diligence.

2.2

The judge or the clerk should inform the SRA of how to contact the provincial or territorial legal aid programme as well as, where applicable, the resources available in legal assistance centres or on the Internet[6]. This could be done inter alia by giving the accused an information pamphlet prepared, for example, by the legal aid programme. [7]

2.3

Brief standardized legal information remarks should be prepared for the judge to make to the SRA at different stages of the trial process (e.g. see the excellent work of the Committee on the Self-represented Accused in the context of the Access to Justice Initiative in Saskatchewan.)[8]

3. The Assignment of a Prosecutor

3.1

Ideally, a prosecutor should be assigned to every SRA file. In many jurisdictions this will not be possible. The Steering Committee recommends that, where possible, a prosecutor be assigned to any SRA file anticipated to take longer than one day, in accordance with so-called “vertical prosecution” procedures (file ownership).

3.2

The contact information of this prosecutor or of the person designated by the prosecutor[9] should be given to the SRA to facilitate communication when necessary. However, this communication may be subject to security measures where the circumstances warrant.

4. Challenges regarding evidentiary disclosure

4.1

The SRA has the same right to disclosure of the evidence as an accused who is represented by counsel.[10]

4.2

The Committee acknowledges that providing disclosure to the SRA may pose special challenges. [11]

4.3

In determining whether a copy of all or part of the disclosure materials should be given to an SRA and/or whether terms and conditions should accompany the SRA’s possession of, or access to the disclosure information[12], consideration should be given to whether such measures are necessary in the circumstances, including consideration of the need to protect the security and right to privacy of the witnesses and victims or the integrity of the evidence.

4.4

In determining whether disclosure information should be provided through electronic means the prosecutor should give consideration to the skills and resources required of the SRA to access the disclosure information.

4.5

The prosecutor should inform the SRA of the permitted uses of the disclosure as well as the limits on its use.[13]

5. Communications between the prosecutor and the SRA

5.1

Settlement discussions between the prosecution and defence are a crucial part of all criminal proceedings. The vast majority of cases do not proceed to trial because of settlement resolutions. Settlement discussions often benefit the accused and result in the prosecution seeking a lower sentence in return for a guilty plea. If settlement discussions do not result in a case resolution, trial efficiencies are often gained when the parties have an opportunity to discuss the case in order to, inter alia, attempt to better define the issues and agree on admissions. These discussions should take place even where the accused is not represented. It is recommended that national guidelines be developed to govern settlement discussions involving SRAs.

5.2

The prosecutor and the SRA are acting within an adversarial system and it may be necessary to take measures to protect the interests of the parties. It is strongly recommended that duty counselor counsel appointed in a pro bono program assist the accused[14] for the purposes of these communications.[15]  Among other things, this participation will help to:

  • Facilitate discussions about possible admissions and issues, without potentially compromising the accused’s right to silence;
  • Facilitate plea bargaining;[16]
  • Discuss, if necessary, the means of disclosure of the evidence (For example: What will be the effect, where applicable, of electronic disclosure of the evidence?  Is it necessary to control the access of the accused to the evidence and, if so, how will this access be supervised?)
  • If the accused is planning a guilty plea, ensure that the plea is informed and that the accused understands its scope and consequences.

6. Judicial Pre-Trial Case Management Conference

6.1

The courts in most jurisdictions hold judicial pre-trial case management conferences in complex or lengthy matters, where the parties request a conference, or where a judge is of the view that a conference would be in the interests of the administration of justice.[17] It is recommended that these criteria apply in cases involving SRAs and the conference takes place after the prosecutor and the SRA have had an opportunity to communicate with one another.

6.2

In the absence of exceptional circumstances, the judge who holds the case management conference should be different from the judge who presides over the trial.

6.3

It is recommended that the management conference be held in open court and that these discussions be “on the record”.

6.4

The Committee strongly recommends that duty counselor counsel appointed in a pro bono program assist the accused for the purposes of these communications.[18]

6.5

The case management judge discusses inter alia with the parties:

  • Issues and admissions (including a statement of the facts admitted by the parties). If need be, the judge notes this information in the court’s record;
  • Issues relating to disclosure of the evidence, including its content, the means of disclosure, the schedule and the supervision of the access of the accused, if need be;
  • Expert evidence, where applicable; and
  • The anticipated duration of the proceedings and the process for summoning witnesses.

7. Trial Procedures Involving the Self-Represented Accused

7.1

There are cases that cannot proceed to trial with an SRA without unfairness.[19] If the trial judge is satisfied that the case before him is not such a case, it is important that the trial judge  take the following steps[20] in trials involving a SRA:

  • Provide the SRA with as much information as is necessary for a fair trial, recognizing the difference between explaining procedural choices available to the accused and advising as to what decision to make.
  • Explain the charges and what the prosecution is required to prove as well as the applicable burden of proof.
  • Explain that the accused has the right to remain silent and will have the opportunity, but is not obliged, to present evidence after the prosecution’s case.
  • Explain briefly the mechanics of the trial. This includes, for example, the right of each side to call witnesses, introduce documentary evidence, object to evidence adduced, the choice to testify or not, and that if the persons chooses to testify they will be cross-examined, and the right to make submissions at the appropriate junctures during the trial.
  • The same should be done if a voir dire is held. And if one is held, the function of a voir dire should be explained.
  • Ask if the SRA needs pen and paper to take notes during the trial.
  • Explain the role of the judge vis-à-vis the SRA – to ensure the SRA has a fair trial - and that the judge can offer some guidance regarding the procedures of the trial, but that the judge cannot defend the interests of the SRA by offering advice on the appropriate steps to take.
  • Ask if the SRA has read the legal information pamphlet provided to SRAs. 
  • Ask if the SRA has any questions about the pamphlet or the information the judge has provided. Tell the SRA to ask if during the trial there is something that they do not understand.
  • Make an order for the exclusion of witnesses.

The Steering Committee on Justice Efficiencies and Access to Justice
June 2010


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