Self-represented defendants increasingly common, but bring challenges:experts

Legal experts say the spectacle of an accused murderer grilling the father of his alleged victim on the witness stand is an unusual manifestation of an increasingly common occurrence in the Canadian justice system.

Self-represented defendants are arguing their criminal cases before a judge or jury with greater frequency, despite the fact that doing so takes an extra toll on all concerned, they say.

In one recent example, Dellen Millard, who is accused in the murder of a Toronto woman who vanished five years ago, has been cross examining those close to his alleged victim as he represents himself at trial, leading to some testy exchanges in court.

Experts say financial considerations are at the heart of most self-representations, since legal aid frequently will not cover costs when someone is being tried for a minor offence and can’t always be counted on when more serious charges are at play.

Lawyers say other common scenarios for self-representation involve either mental illness, distrust of authority or a belief that the defendant is the best person to handle the case.

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Self-representations, they say, are becoming more common despite the fact that they prolong trials, place additional burdens on judges and take an emotional toll on both witnesses and the accused.

Trevor Farrow of York University’s Osgoode Hall Law School said self-representation is inherently at odds with Canada’s court practices.

“The system is not designed around the idea of self-represented litigants, it’s designed around parties coming to court with counsel,” Farrow said. “I think self-representation has a significant impact on all aspects of the system.”

The Millard case offers a particularly stark illustration of the emotional impact self-representation can have on witnesses involved in the trial.

Millard, who is one of two co-accused in the death of Laura Babcock, came face-to-face with the victim’s father on the witness stand on the first day of his trial this week. He acknowledged the potential difficulty for Clayton Babcock, inquiring if he was nervous and found the situation difficult, but proceeded to ask him such questions as whether or not he abused his daughter.

Farrow said defendants are also not immune from the strain of self-representation, which forces them to navigate a complex legal system they may not understand.

This places an additional burden on judges, who must both safeguard the defendant’s legal rights while filling them in on procedural steps and other details that would typically be handled by a lawyer. The situation frequently leads to prolonged trials, Farrow added.

Ingrid Grant, who acted as a legal support to another high-profile self-represented client, said most people who go before court without counsel are not doing so by choice.

Grant said most are forced into that position by a dearth of financial resources. Legal aid has stringent criteria for the types of offences they will help with and the financial requirements under which people qualify for support, she noted. Defendants who don’t make the cut often represent themselves as a last resort, she said.

Others, like convicted Via Rail terror plotter Chiheb Esseghaier, decline legal help while dealing with mental illness. Esseghaier has appealed his conviction and ensuing life sentence on the basis of his schizophrenia, which was undiagnosed and untreated at the time of the trial.

But even without mental illness in the picture, Grant — who was appointed by a court to assist Esseghaier at one point — said self-represented people don’t usually mount effective arguments because of their lack of perspective on the case.

“They’re emotionally invested in whatever the allegations are,” she said. “They know a whole history that they want to get out to the judge … They don’t understand what’s relevant and what’s not often, and a judge has to cut through that.”

Grant said it’s not unheard of for self-representing defendants to question witnesses with direct relationships to the victims, but said the Criminal Code has provisions to prevent the situation. Prosecutors can file motions requesting that lawyers question witnesses who may be anxious about dealing with the defendant directly, she said.

Such a scenario recently played out in a courtroom near Ottawa when Basil Borutski, a man on trial for the slayings of three women he dated, raised questions about the testimony of one of the victims’ sisters. Borutski made notes and drafted questions, but a lawyer was the one to directly cross-examine the witness.

Farrow said the growing number of self-representations in the court highlights the need for change in the system.

“What we are starting to realize is that we are woefully under-resourced when it comes to supporting people getting legal assistance,” he said. “And we are starting now to understand the cost on individuals, on families, and on society is really high. I think we need to start connecting the dots in terms of the better we support ourselves and each other in the … justice system, the better off the system will be.”

Michelle McQuigge, The Canadian Press