In a recent case, R. v. Tossounian, 2017 ONCA 618 (CanLII), the Court of Appeal ruled that the trial judge did not do enough in helping a self-represented accused person at trial. The defendant was accused of arson, and was convicted at trial. On appeal, the Court found that the accused’s right to disclosure was violated, and that there was inadequate assistance from the trial judge. The Court of Appeal ordered a new trial.
The Court of Appeal noted that a trial judge has the duty to make sure that the accused’s right to a fair trial was not violated (in this case, right to full disclosure). In addition, a trial judge must also ensure that the self-represented person understands what her rights are, and the remedies to the infringement of those rights. Guidance must be given so that the self-represented person’s defence is “brought out with its full force and effect” (para. 36). The Court cited the Statement of Principles on Self-represented Litigants and Accused Persons issued by the Canadian Judicial Council (2006). What is also noteworthy is that in this case, the Court found that it did not matter that the accused did not raise the issue about disclosure at trial. This makes sense, as most self-represented litigants with little legal knowledge would have difficulty making objections during trial.
It is encouraging that courts are making the effort to even out the playing field, so that all litigants can be assured to a fair trial process.