R. v. D.R.S.: Standard of review on appeal challenging the adequacy of judicial assistance to a self-represented accused
Where an accused alleges that the trial judge failed to provide reasonable assistance to a self-represented accused, what is the standard of review? The Court of Appeal of Alberta recently addressed that question in R. v. D.R.S., 2018 ABCA 342. The answer turns on identifying the applicable ground of appeal. The alleged inadequacy of the trial judge’s assistance is not itself a ground of appeal. However, a ground of appeal may arise where the lack of assistance renders the trial unfair and, thus, a miscarriage of justice under subparagraph 686(1)(a)(iii) of the Criminal Code. See Part B(3) in Chapter 4 of Sopinka and Gelowitz on the Conduct of an Appeal for more regarding the relevant standard of review under subparagraph 686(1)(a)(iii).
In R. v. D.R.S., the self-represented accused alleged that the trial judge should have provided assistance regarding: (1) the decision on whether or not to testify in his own defence (which he elected not to do based on his subjective misunderstanding of the process), and (2) regarding the possibility of applying to the court for state-funded counsel (a Rowbotham application). The Court of Appeal rejected both arguments and, in doing so, concisely summarized the applicable standard of review:
[18] The failure of a trial judge to adequately assist a self-represented accused is not a free-standing ground of appeal. The question is whether the failure to assist rendered the trial of the accused unfair and therefore a miscarriage of justice under s 686(1)(a)(iii) of the Code […]. Trial fairness is a question of law, reviewable for correctness: […]
[19] How far a trial judge should go in assisting a self-represented accused is a matter of judicial discretion. The scope of the assistance is limited to what is reasonable and does not extend to the kind of advice counsel would be expected to provide: […]
[20] A trial of a self-represented accused is unfair if “the record discloses such an incompetent defence … that a new trial is necessary in the interests of justice”: […]. Where the issue on appeal is not the merit or competence of the defence but whether the self-represented appellant was able to choose his own defence, the fairness of the trial turns on whether the appellant “had a full and fair opportunity to present his case”: […]
The Court of Appeal also addressed the standard of review of findings of a special commissioner appointed under paragraph 683(1)(e) of the Code. The Court of Appeal had appointed a special commissioner to inquire into and report on the advice given to the accused during the trial by a lawyer who had been appointed to cross-examine the complainant. As the Court held:
[21] This Court reviews the findings of a Special Commissioner in keeping with the test set out in R v Yebes, 1987 CanLII 17 (SCC), [1987] 2 SCR 168. Accordingly, a finding will be accepted so long as “the decision is one which a trier of fact, properly instructed and acting judicially, could reasonably have rendered”: […]
For more regarding the appointment of a special commissioner by an appellate court to make an inquiry and report, see §4.84 in Chapter 4 of Sopinka and Gelowitz on the Conduct of an Appeal.