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Presentation - Criminal. R. v. Davis
In R. v. Davis (Ont CA, 2026) the Ontario Court of Appeal allowed a criminal appeal, here brought against convictions for "sexual assault, sexual exploitation, intimidation and uttering threats" - this where the appellant was self-presenting at trial.
Here the court considers the issue of inadequacy of trial judge's assistance to a self-presenting defendant:C. Issues and analysis
[15] The primary issue on appeal is whether the appellant, as a self-represented accused, received a fair trial. The appellant alleges the trial judge failed to provide him with adequate assistance. The appellant also alleges that the trial judge erred by not appointing amicus to assist him throughout the trial.[3]
[16] Given that the appellant was self-represented, the trial judge had an obligation to provide him with reasonable assistance. Looking at the conduct of the trial as a whole, I find that the trial judge failed to do so and that the trial was accordingly unfair. I start with a general discussion of a trial judge’s obligation to assist a self-represented accused in a criminal proceeding. I then review what occurred in this case, leading to my conclusion that the trial was unfair. I conclude by briefly addressing the issue of amicus.
1. General principles regarding the conduct of a trial with a self-represented accused
[17] When an accused is self-represented, the trial judge has an obligation to ensure that the trial is fair and respects the accused’s fundamental rights: R. v. Richards, 2017 ONCA 424, 349 C.C.C. (3d) 284, at para. 110; R. v. Kahsai, 2023 SCC 20, 483 D.L.R. (4th) 199, at para. 54. This requires the trial judge to provide reasonable assistance to the accused and to guide the accused throughout the trial so that the “defence is brought out with its full force and effect”: R. v. McGibbon (1988), 1988 CanLII 149 (ON CA), 45 C.C.C. (3d) 334 (Ont. C.A.), at p. 347.
[18] The duty to provide assistance is subject to a standard of reasonableness. The extent of the obligation to provide assistance depends on the circumstances of the case and what is reasonable in the particular case: R. v. Forrester, 2019 ONCA 255, 375 C.C.C. (3d) 279, at para. 15; R. v. Bancroft, 2024 ONCA 121, at para. 7. The trial judge is not required to, and in fact must not, provide the same kind of assistance as defence counsel would provide: Richards, at para. 111. In effect, a trial judge’s obligation to remain neutral necessarily limits the scope of the duty to assist a self-represented accused: Kahsai, at para. 54.
[19] While the level of assistance depends on the circumstances of each case, in R. v. Tran (2001), 2001 CanLII 5555 (ON CA), 55 O.R. (3d) 161, at para. 33, a case where the accused was self-represented and showed signs that he did not understand the trial process, this court stated that, at the beginning of the trial, the trial judge should have explained the trial process to the accused in order to meet the “minimum requirement”:At this stage of the trial, to satisfy the minimum requirement of providing assistance for the appellant, the trial judge should have explained to the appellant the course which the trial was to take, beginning with his arraignment, followed by the Crown Attorney calling her witnesses, his right to cross-examine the witnesses and to object to irrelevant evidence, his right to call witnesses and to testify, the risks inherent in testifying and not testifying, and finally, the right to make closing argument. [20] In Kahsai, at para. 54, the Supreme Court stated that the trial judge can typically fulfill the duty owed to a self-represented accused by explaining the trial process to them, although some circumstances will require the judge to intervene more actively. For example, the trial judge may be required to identify relevant issues, frame questions to elicit relevant evidence for the defence or raise potential Charter breaches.
[21] The failure to assist or sufficiently assist a self-represented accused is not an independent ground of appeal. Rather, it raises the possibility that the trial was unfair, and that there has been a miscarriage of justice requiring appellate intervention pursuant to s. 686(1)(a)(iii) of the Criminal Code. Not every breach of a trial judge’s obligation to assist a self-represented accused makes a trial unfair or results in a miscarriage of justice. Rather, the court should consider the cumulative effect of the trial judge’s errors in failing to assist the self-represented accused: Forrester, at para. 17; Bancroft, at para. 8.
....
f. Conclusion
[58] During the argument of the appeal, the Crown addressed many of the alleged deficiencies in the trial proceeding and submitted that they did not impact trial fairness. For example, while the trial judge did not explain the trial process to the appellant at the beginning of trial, the appellant would have been aware of the trial process because he had been ready to start the trial on three previous occasions while represented by counsel. The Crown relied on the fact that the appellant’s former counsel were prepared to concede the voluntariness of his police statement. In addition, the Crown submitted that any deficiencies in the explanation the trial judge gave the appellant about his right to cross-examine L.M., T.M. and Ms. Whiteman were offset by the fact that the main witness at trial was C.M., and that she was cross-examined by s. 486.3 counsel.
[59] The problem with the Crown’s position is that it fails to account for the cumulative impact of the deficiencies in the trial judge’s assistance to the appellant. Individually, these deficiencies may not have led to an unfair trial, but cumulatively the appellant was essentially left without a proper understanding of the trial proceeding and without an opportunity to mount any defence to the charges, other than through s. 486.3 counsel’s cross-examination of the complainant.
[60] The assistance the trial judge provided to the appellant fell well below the minimum requirements. The appellant was unsophisticated. He showed many signs that he did not understand the trial process or how to defend himself. At the beginning of the trial, the trial judge took no steps to explain the trial process to the appellant or to ensure that the appellant was sufficiently alert to meaningfully participate in his trial. Throughout the hearing, the trial judge only provided minimal, and at times incorrect or incomplete, explanations to the appellant about the trial process and how he could protect his interests.
[61] Based on the cumulative circumstances, I conclude that the trial was unfair. I also conclude that the trial unfairness amounted to a miscarriage of justice. A miscarriage of justice occurs where an accused was convicted following a trial that was unfair in fact or in appearance: s. 686(1)(a)(iii) of the Criminal Code; R. v. Tayo Tompouba, 2024 SCC 16, 491 D.L.R. (4th) 195, at paras. 55, 72. In assessing whether a miscarriage of justice occurred, the question is whether the irregularity was severe enough to render the trial unfair or to create the appearance of unfairness: Tayo Tompouba, at para. 72. This is a high bar: Tayo Tompouba, at para. 72. Courts have found unfairness giving rise to a miscarriage of justice in different circumstances: Tayo Tompouba, at para. 73; R. v. Walker, 2019 ONCA 765, 381 C.C.C. (3d) 259; and R. v. Nahmabin, 2024 ONCA 534. This includes where a self-represented accused received insufficient assistance from a trial judge: R. v. Wilde, 2022 SKCA 74.
[62] The trial judge’s failure to provide the appellant with reasonable assistance throughout the trial left the appellant without any ability to defend himself at trial. To succeed on this ground of appeal, it is not necessary for the appellant to show that he had a viable defence or that he could have succeeded at trial. Nevertheless, in this case, given the conduct of the trial, it is not possible to know whether he had a viable defence or whether he could have succeeded at trial. . R. v. Robinson
In R. v. Robinson (Ont CA, 2025) the Ontario Court of Appeal denied a motion for waiver of the duty to file a transcript on a criminal appeal. The appellant had non-LSO assistance, and the court referenced "pseudo-legal arguments". This 13-paragraph ruling is worth reading to get a flavour for the court's unusual patience with this unrepresented appellant.
. R. v. Y.Y.
In R. v. Y.Y. (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's criminal appeal.
The court considered a Browne v Dunn issue, here in a self-representing criminal defendant context where the court noted "that the appellant was provided, before trial, with a “Trial Information for Self-Represented Accused” booklet":(iii) The trial judge did not make a Browne v. Dunn error
[19] The Crown raised an objection during the defence case that evidence was being led on issues that had not been put to M.Y when she was cross-examined. The appellant continued to lead evidence that elicited further objections of this nature. By the time the case was going to the jury the Crown had raised numerous areas where, in the Crown’s view, the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.) had been breached. The Crown’s position was that the remedy for this should be an instruction to the jury as it was not practical to recall M.Y.
[20] The trial judge agreed that it was impractical and unfair to recall M.Y. He decided to address the Browne v. Dunn issue in his charge to the jury. He instructed the jury on the rule, describing it as one of fairness. He then listed some “topics or areas of the evidence” where M.Y. was not given an opportunity to present her position. The trial judge told the jury that “there may or may not be other instances like this that you will think of” or that they may disagree with the instances the trial judge described. He went on to tell the jury that if they were of the view that evidence was led on issues that should have been, but were not, put to M.Y., then:[I]n such circumstances, when assessing the credibility and reliability of the witnesses and the extent to which you are prepared to rely on their testimony, you should keep this rule of fairness [the rule in Browne v. Dunn] in mind. It is for you to decide whether and to what extent the failure to put to [M.Y.] the contradictory evidence called later impacts the extent to which you are prepared to accept and rely upon the evidence of the witnesses. [21] The appellant submits that the trial judge erred in suggesting to the jury that there had been breaches of Browne v. Dunn. He submits that the areas identified were peripheral, and that in substance M.Y.’s position on them was made known in her evidence. He underscores the context of the appellant having been a self-represented litigant at trial.
[22] We disagree.
[23] On the issue of fairness to a self-represented litigant, we note that the appellant was provided, before trial, with a “Trial Information for Self-Represented Accused” booklet which explained trial procedure including the substance of the rule in Browne v. Dunn and the potential consequence of a violation. It stated:[I]f you are going to challenge a witness’ recollection of events or statements, you should cross-examine that witness on your version of events. If you fail to do so, it may make your suggested version of the events less compelling because the witness was not given a chance to provide his or her explanation of the events. [24] As well, cross-examination of M.Y. was conducted by s. 486.3 counsel, and it would be expected that he was briefed by the appellant on what evidence he planned to lead so that the cross-examination of M.Y. could be appropriately tailored to avoid Browne v. Dunn concerns.
[25] On the issue of whether there were violations of the Browne v. Dunn rule, as well as the remedy chosen, the trial judge’s determinations are entitled to deference on appeal: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at paras. 118, 121, leave to appeal refused, [2016] S.C.C.A. No. 203.
[26] We see no reversible error in the trial judge’s determinations that the rule appeared to have been violated in the instances that the trial judge identified.
[27] As for remedy, a trial judge is entitled to refuse to require a witness to be recalled to cure the other party’s violation of the rule, especially where, as here, the witness has already testified at length about sexual matters: R. v. M.F.1 & P.F., 2010 ONSC 4018, at para. 29, aff’d 2012 ONCA 807. An instruction, such as the one the trial judge gave, that advises the jury that they may take the violation into account in assessing credibility, while leaving it to the jury to decide whether to do so and the weight to assign to that factor, is a proper remedy in such circumstances: R. v. Paris (2000), 2000 CanLII 17031 (ON CA), 138 O.A.C. 287 (C.A.), at para. 27, leave to appeal refused, [2001] S.C.C.A. No. 124.
[28] We therefore reject this ground of appeal. . R. v. Zhou [ineffective assistance against self]
In R. v. Zhou (Ont CA, 2024) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here where the convictions were for "sexual assault and forcible confinement.".
Here the defendant was self-presenting and the issue of 'ineffective assistance of counsel' arose:[20] In the analysis below, I start with the issues raised by amicus followed by some of the additional issues raised by the appellant. However, I do not address the issue of ineffective assistance raised by the appellant because he was specifically prohibited from raising this issue by the order of MacPherson J.A. dated August 5, 2021, which was upheld by a panel of this court on September 1, 2021: R. v. Z., Biao (1 September 2021), M52763 (C66921) (Ont. C.A.). . R. v. S.M.
In R. v. S.M. (Ont CA, 2022) the Court of Appeal considered a criminal principle of importance to defendants without counsel, here the right of a defendant to be present during all of their trial (here it was a meeting in chambers that he was not present for) [s.650 CCC]:(1) The Right to be Present
[33] Subject to some exceptions that are not relevant to this case, s. 650 of the Criminal Code provides that an accused person “shall be present in court during the whole of his or her trial.” The right to be present at one’s trial also has a constitutional footing: see R. v. Burnett, 2021 ONCA 856, 159 O.R. (3d) 321, at paras. 28, 69-71.
[34] In R. v. Hertrich (1982), 1982 CanLII 3307 (ON CA), 67 C.C.C. (2d) 510 (Ont. C.A.), Martin J.A. explained the importance of the right to be present at trial, at p. 537:The essential reason the accused is entitled to be present at his trial is that he may hear the case made out against him and, having heard it, have the opportunity of answering it: R. v. Lee Kun (1915), 11 Cr. App. R. 293. The right of the accused to be present at his trial, however, also gives effect to another principle. Fairness and openness are fundamental values in our criminal justice system. The presence of the accused at all stages of his trial affords him the opportunity of acquiring first-hand knowledge of the proceedings leading to the eventual result of the trial. The denial of that opportunity to an accused may well leave him with a justifiable sense of injustice. Indeed, in my view, an examination of the Canadian decisions shows that the latter principle is, in fact, the implicit and overriding principle underlying those decisions. This passage was endorsed by Dickson C.J.C. in R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694, at pp. 705-707, and more recently by MacPherson J.A. in R. v. Schofield, 2012 ONCA 120, 109 O.R. (3d) 161, at para. 16; see also R. v. Walker, 2010 SKCA 84, 258 C.C.C. (3d) 36, at para. 19.
[35] Not every in-chambers discussion forms part of the accused’s trial for the purposes of s. 650: Schofield, at para. 18. In R. v. Poulos, 2015 ONCA 182, 124 O.R. (3d) 675, LaForme J.A. held that, whether s. 650 is infringed “will depend on whether the context and contents of the discussion involved or affected the vital interests of the accused or whether any decision made bore on ‘the substantive conduct of the trial’: at para 18, citing R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, at para. 116, leave to appeal refused, [2010] S.C.C.A. No. 459.
[36] It is not necessary to catalogue what may or may not be tolerated by s. 650. This court has repeatedly held that, “the default position in all criminal trials is that any conversation involving trial counsel and the judge ought to take place in the appellant’s presence, in open court, and on the record. This should also apply to discussions held in a judge’s chambers, since the term ‘trial’ in s. 650(1) can include in-chambers discussions”: R. v. Dayes, 2013 ONCA 614, 117 O.R. (3d) 324, at para. 68; see also Simon, at para. 117. I would also endorse Watt J.A.’s views in Burnett, at para. 60, that few words are required to convey the command of s. 650: “In court. On the record. In the presence of the accused. No more is required. Nothing less will do.”
[37] I agree with both counsel that what happened in this case ran afoul of s. 650 of the Criminal Code in two ways. First, it was improper to engage in resolution discussions in the absence of the appellant. This clearly implicated his vital interests. Second, the trial judge should not have commented adversely on the evidence of V.M.
[38] This scenario – an in-chambers meeting in which a trial judge comments on the quality of the evidence and then encourages resolution discussions – has been criticized in numerous decisions of this court: see Schofield, at paras. 19-21; R. v. Roy (1977), 1976 CanLII 1396 (ON CA), 32 C.C.C. (2d) 97 (Ont. C.A.), at pp. 98-99; R. v. James (2009), 2009 ONCA 366 (CanLII), 95 O.R. (3d) 321, at para. 21; Poulos, at paras. 19-22; and Dayes, at paras. 69-70. In these situations, it is clear that the former (comments about the evidence) is meant to encourage the latter (plea discussions). Both are improper. In-chambers comments about the evidence are particularly problematic if resolution is not achieved and the trial continues. The appearance of impartiality is lost.
[39] As Richards J.A. of the Saskatchewan Court of Appeal said in Walker, at para. 38: “If the criminal justice system is to be perceived as being fair and impartial, judges cannot convene private and unrecorded meetings in mid-trial for the purpose of expressing their views about the substance of the proceedings and making inquiries about plea bargaining.”
[40] The infringement was made more serious in this case because, unlike some of the cases referred to above, there was no record of these in-chambers discussions. Unlike all of these cases, the appellant was self-represented. This reality was not ameliorated by the presence of amicus curiae or s. 486.3 counsel. The latter does not remember being in chambers. The former did not tell the appellant what had transpired, even after being asked to do so by the trial Crown. He did not believe that it was “consequential”.
[41] Section 650 of the Criminal Code was breached by the in-chambers discussions that were held in this case. At paras 42-54 the court considers, and dismisses, the application of the CCC s.686(1)(b)(iv) curative proviso.
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