Self Representation

It's always a bad idea to represent yourself in a criminal proceeding.

However, if you have exhausted all possibilities of obtaining a lawyer, and you absolutely have to represent yourself, there are many resource materials on the Internet you can refer to. This brief commentary is simply a small contribution to the available information. It is not intended as legal advice.

Communications

Phone calls get forgotten, misunderstood or, they,” didn’t happen”. Where possible use email or written communications when dealing with the court officials and the prosecutor's office. Consider everything “on the record” and your language should be appropriate and polite at all times because emails can wind up as evidence in certain situations.

Disclosure

The prosecution has the obligation to disclose all material connected with your case. Normally this will include all of the police reports, witness statements, and any audio or video media, and where applicable, forensic test results etc.

You need to review the disclosure to determine how you are going to proceed. Normally the court would not expect you to enter a plea to the charge until the prosecution has provided disclosure.

Understand the Charge/Penalties

You can Google the Criminal Code and section number and have a good look at the language of the charge or charges in your case. At the earliest time, inform yourself of the minimum and maximum sentence theoretically applicable. Be especially concerned to inform yourself if there are any statutory minimum penalties.

Summary/ Indictable

Summary proceedings are less serious than proceedings by way of indictment. In most cases now in Canada the prosecution has a choice as to whether to proceed by indictment or summarily. Determine as soon as possible how the prosecution is proceeding in your case.

Choice of Court

If your case is proceeding summarily, the proceedings will occur in the Provincial court.

If there is an indictment, you will have an “election” to have your case tried in the Provincial court, in the Superior Court, with or without a jury.

One of the benefits of going to the Superior Court used to be the availability of a preliminary inquiry but in Canada, that is now reserved only for the most serious cases.

One advantage of going to the Superior Court is to move the case away from the Provincial court if there is reason to believe that the Provincial court judge may not be the best person to hear the case.

The strategy and legal considerations with respect to the choice of court is beyond the scope of this brief article.

Trial Preparation

At the earliest time, get an understanding of the disclosure and what the prosecution must prove to establish guilt.

Ascertain what evidence you have which would provide a defense or assist in contradicting or diminishing the prosecution’s case.

Letters and affidavits are rarely admissible. If you have a witness to a particular situation, ask the witness to write in a statement for you. You can use this to refresh the witness’s memory at a later date.

Do this for each witness and when you have a trial date, the court staff can provide you with the form so that you can subpoena each witness. Even if they are completely favorable and volunteered to appear, this will help them with their employer if they need to take time off work and if they are sick and have a good reason to not attend, you have a better chance of obtaining an adjournment if you have subpoenaed a witness. If you haven’t subpoenaed the witness, adjournments are very difficult to obtain.

Consider whether you have any text messages, emails, Facebook material that are relevant to your defense or which may contradict or diminish the case against you. Remember each one has to be introduced through a witness. It is heartbreaking to have relevant text messages only to lose the benefit of the evidence if you haven’t brought a witness to court to speak to the evidence. Normally this would be the person who sent the text message and, in some cases, the person who received a text message.

A full discussion of the introduction of such material is beyond the scope of this article.

Alibi Evidence

Alibi evidence must be given special consideration. If you have an alibi, and you do not disclose the specifics to the prosecution prior to the trial, it may be inadmissible or may result in an adjournment of your case. If the court does admit the evidence, the value of it will be drastically reduced. The law requires advanced disclosure to the prosecution so the police can follow up and confirm the validity of the alibi evidence. If you have a good alibi, attended that at an early time.

Preparation is 90% of the Battle

Think of your case as a true short story. Where does it wind up and how are you going to get there.? What do you want the court to understand from your evidence? Which witnesses will provide what parts of your evidence?

Direct Examination

For each witness, make a list of the questions you want to ask them so that their answers will provide the information necessary for your case. Prepare each witness in advance so they’ll know the questions you’re asking them and the answers that you expect. Remember, you will not be able to cross-examine or lead your own witnesses. They will be expected to provide their answers without coaching from you in the courtroom.

Prepare for cross-examination

For each of the witnesses you expect the prosecution to call, prepare a list of questions for cross-examination. Remember, your questions are not evidence, only the information provided by the witness is evidence.

Effective cross-examination is a skill acquired after many years of experience and a full discussion is beyond the scope of this article.

Courtroom Demeanor

Always remember the judge is ultimately the only person in the courtroom that counts when you consider the impact of your evidence and your defense.

Judges have a hard job and no matter what you may think of the proceedings, a judge is deserving of respect. Always address the judge as “Your Honour” and the lawyer who is acting as the prosecutor, can referred to as “the prosecutor”.

It’s common sense. You want the judge to have a good impression of you and one way to do that is to present yourself in a positive way in the courtroom.

Whether A Defendant Should Testify

That is a very complex question and beyond the scope of this article. However, some information can be provided.

Firstly, the defendant has the right against self-incrimination and is not required to testify.

However, in appropriate cases legal strategy often favors testimony by the defendant. If credibility is at issue and the defendant does not testify, the WD Rules will not apply.

There may be situations where a crucial piece of exculpatory evidence can only be provided through testimony of the defendant.

The question as to whether or not a defendant should testify need only be made after all of the other testimony has been submitted. Every case is different and the question must be assessed in view of all of the circumstances.

(Commentary to be continued, under construction.)