This post comes from Judge Wayne Gorman who may well be one of the most prolific judicial writers in Canada and the United States. How trial judges handle self-representation is a difficult task for judges–and is particularly difficult in criminal cases. In the back of the trial judge’s mind is the old adage that a lawyer who represents himself has a fool for a client.

It is quite easy to become impatient with self-represented litigants, so Judge Gorman’s synopsis of a recent Canadian case is useful. Judge Gorman wrote:

“In R. v. Wyatt, 2018 BCCA 162, April 24, 2018, the accused was convicted of the offence of aggravated assault.  The accused appealed from conviction, arguing that the trial judge failed to provide him with adequate assistance.  The Crown agreed.

The British Columbia Court of Appeal suggested that the accused’s “lack of knowledge of the trial process was apparent.” It pointed to what it described as “two important misconceptions that governed his conduct of his defence”:  

a) He seemed to mistakenly believe that if there was no witness to corroborate the victim’s version of events, that it would not be proven and the case would be dismissed. 

b) The first important misconception played into another important misconception. Several statements he made during the trial indicated that he thought that he could simply put into evidence a statement he gave the police which would “kill the case” against him, or that his denial of the offences would be in evidence, without the necessity of him testifying.

In allowing the appeal, the Court of Appeal indicated that trial judges “have an obligation to provide some minimal assistance to self-represented accused persons… Providing the necessary minimal judicial assistance to a self-represented accused can be difficult, as on occasion – and of course most definitely not always – persons accused of a crime may be unwilling to listen, or have slight intellectual or psychological challenges that are heightened in the stressful atmosphere of the courtroom. A judge presiding over a criminal trial with a self-represented accused must remain neutral and cannot become the lawyer for the accused.”

The Court of Appeal concluded that the trial was “unfair” (at paragraphs 15 to 17):

The judge did not address Mr. Wyatt’s apparent misconception and legal error that the victim’s evidence needed to be corroborated in order for there to be a conviction. 

As for Mr. Wyatt’s own evidence, the judge did carefully and correctly explain to Mr. Wyatt that if he testified he would become subject to cross-examination. However, the record shows that several times in the trial Mr. Wyatt referred to his statement to the police, and other witness statements to the police. His comments indicated he thought that these statements were “in the file” and were something he could rely upon. He appeared not to realize until the end of the trial that the judge did not have the police file with these statements in front of her, as something she could consider. 

In my respectful view some step was required by the trial judge to correct the two important misconceptions held by Mr. Wyatt as to the law and process, as these were fundamental to his ability to bring out his defence. I am of the view that the failure to provide assistance to Mr. Wyatt in this regard made the trial unfair.”