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Presentation - Duties to Presenters (2). 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. . Ozdemir v. Ozdemir
In Ozdemir v. Ozdemir (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a family law appeal, here brought against a "final parenting order".
Here the court considers a procedural fairness argument that the self-presenting appellant was prejudiced because "the court's “failure to ensure the Appellant understood the process - despite clear language barriers and lack of counsel - contributed to an unfair outcome.”":Procedural fairness and self-represented litigants
[43] The Appellant submits that he was prejudiced because he was not represented at trial and because the court did not ensure he was granted procedural fairness. Specifically, the Appellant submits that the court's “failure to ensure the Appellant understood the process - despite clear language barriers and lack of counsel - contributed to an unfair outcome.”
[44] The following are the steps taken by the court to ensure the process was fair to the Appellant:a. At paragraph 60 of the Decision, the judge provides that “the court has made attempts to assist Mr. Ozdemir in this trial and to guide him in the presentation of his evidence.”
b. The Judge clarified and reviewed with the Appellant the order that he was asking the court to make;
c. The trial judge explained the best interest of the child test;
d. The trial judge provided the Appellant with a copy of section 24 of the CLRA, to assist him in preparing his evidence;
e. The trial judge explained to the Appellant that section 24 contained a list of things that she would be considering when making her decision;
f. Both the day before and the morning of the Appellant giving evidence, the trial judge explained to the Appellant that they require evidence as to the children's best interests and why his proposal with respect to decision-making, primary residence and parenting time is in the children's best interests.
g. The trial judge clarified for the Appellant that they could disregard any provision in the Agreement regarding the children if the trial judge did not find the provisions were in the children's best interests.
h. On May 2, 2024, the Appellant was provided with a copy of the Guide for Self-Represented Litigants;
i. The Appellant was allowed to bring notes with him to the witness stand when giving his evidence;
j. At the end of his testimony, the Appellant was given a 20-minute break to review his notes and consider whether there was anything else he wanted to tell the court.
k. An interpreter was available to the Appellant throughout the proceedings.
l. For a period of time, he was represented by counsel. He also had the assistance of duty counsel for the motion with respect to the appointment of the OCL. [45] The court’s obligation to self-represented litigants is outlined in the Canadian Judicial Council’s Statement of Principles on Self-represented Litigants and Accused Persons, which was endorsed by the Supreme Court of Canada in Pintea v. Johns, 2017 SCC 23, [2017] 1 S.C.R. 470, at para. 4.
[46] As articulated by the Court of Appeal for Ontario in R v. Morillo, 2018 ONCA 582, 362 C.C.C. (3d) 23:[11] According to these principles, self-represented persons are expected to familiarize themselves with relevant legal practices and to prepare their own case. However, self-represented persons should not be denied relief on the basis of minor or easily rectified deficiencies in their case. Judges are to facilitate, to the extent possible, access to justice for self-represented persons.
[12] Appellate judges should therefore attempt to place the issues raised by a self-represented litigant in their proper legal context. [47] In more precise terms, judges should assist self-represented litigants by:a. Explaining not just the applicable procedures, but also the relevant law and its implications;
b. Providing self-represented litigants with information to assist them in asserting their rights and raising arguments before the court; and
c. Ensuring that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented parties.
Watterson v. Canadian EMU, 2016 ONSC 6744 (Div. Ct.), at para. 38. [48] However, there are limits to a judge’s duty to assist self-represented litigants. A judge must maintain their neutrality and impartiality. Further, “while it is within a judge’s discretion to control the court process and to grant latitude to a self-represented litigant on procedural issues, that discretion does not extend to rectifying substantive legal deficiencies.” See: Davis v. Canada (Royal Canadian Mounted Police), 2024 FCA 115, at paras. 39-40, leave to appeal to S.C.C. refused, 41763 (October 9, 2025).
[49] I find that there was no breach of procedural fairness. In considering the steps taken by the trial judge, as set out above, I find the trial judge satisfied their obligation to ensure the process was fair to the appellant as a self-represented litigant. Therefore, this ground of appeal is dismissed. . Carter v. Carter
In Carter v. Carter (Ont CA, 2026) the Ontario Court of Appeal dismissed a family law appeal, here brought against "orders for equalization, child and spousal support, and ancillary matters related to enforcement. The appellant was also found in contempt." resulting in a sentence of 90 days incarceration.
Here the court considers a judge's duties to unrepresented parties:[55] I am not persuaded that the trial judge failed to provide the appellant, as an unrepresented person, with adequate assistance to ensure that the contempt allegation was fairly tried and that he had a full opportunity to defend himself: see R. v. Bancroft, 2024 ONCA 121, at para. 8. There is no checklist of obligations that apply in all cases. The applicable standard is reasonableness: R. v. Richards, 2017 ONCA 424, 385 C.R.R. (2d) 1, at para. 111. The trial judge was well-situated to assess the appellant’s comprehension and determine the material matters that required explanation in the circumstances of the case. Contrary to the appellant’s written submissions, for example, the trial judge did not have to advise the appellant that contempt was a quasi-criminal matter and that a finding of contempt might result in his incarceration, because, as everyone understood, the appellant knew this possibility from having previously been incarcerated for civil contempt. I am not persuaded that the contempt hearing was unfair or could reasonably appear to be unfair because of the level of assistance the trial judge provided.
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