Self-Represented Accused: A Challenge for Everyone
In our final look at issues from the Uncover Podcast we look at the fact that Mr. Assoun represented himself after he was unsatisfied with how his lawyer had cross-examined the Crown’s initial witness. The resulting conviction was entirely predictable at that point.
When someone decides to represent themselves it creates difficulties for all involved in the trial
A trial judge is places in a very difficult position. Of course an accused suffers the most in the end.
The BC Court of Appeal has adopted the following comments about a self-represented accused, “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.
From the audio in the podcast the underlined comments seem very applicable to Mr. Assoun. It seemed as though his counsel was understated in his delivery in court, often a very effective approach, but one at odds with Mr. Assoun who appeared to want confrontations with witnesses.
The law requires 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.
One of the ways trial courts have attempted to remedy the situation of a self-represented accused is to appoint amicus curiae
The role of the lawyer appointed as amicus is that of “friend of the court”; and is generally appointed to assist the court with its decision-making by ensuring that all relevant evidence and arguments are properly presented to the court. However, it is not uncommon for an amicus to provide legal assistance to an unrepresented accused. While the amicusis not the accused’s lawyer they can assist in cross-examining witnesses or making legal argument so that the accused is not left entirely to their own devices.
Mr. Assoun made another poor decision in relation to the appointment of amicus. According to the decision of the Nova Scotia Court of Appeal the Crown “repeatedly recommended that the court consider appointing an amicus curiae”. Mr. Assoun declied the amicus. It is surprising that Mr. Assoun was consulted on that decision. Given that amicus is appointed by the court pursuant to their inherent jurisdiction it is not uncommon for the court to do so even if the accused feels it is unnecessary. With hindsight that likely would have been wise in this case.
It is always easier to see once something is over where it went wrong as opposed to appreciating it in the moment. From even this brief review of aspects of Mr. Assoun’s case it is easy to see how many issues can arise at trial and the importance of competent counsel to assist.