Can You Represent Yourself in Criminal Court

Representing Yourself in Criminal Court

You can represent yourself in criminal court, but that doesn’t mean it is a good idea.

A criminal case can involve rules of evidence, Crown disclosure, witness testimony, Charter rights and legal defences that may not be obvious to someone without criminal law experience. The real risk is that you may not recognize an important problem with the Crown’s case until it is too late.

Nicholas Charitsis is a former Crown Attorney with more than 25 years of criminal law experience. He understands how the Crown Attorney builds a criminal case and how to fight the evidence from the defence side. This may include finding weaknesses in the evidence, problems with witness testimony, Charter issues and other evidence that could create reasonable doubt.

If you are thinking about representing yourself, consider speaking with a criminal defence lawyer first. Call Charitsis Law at 416-731-7113 to speak directly with Nicholas Charitsis about your case and the options available to you.

The Risks of Representing Yourself in Court

You have the right to represent yourself in criminal court, but you will generally be expected to follow the same court procedures and rules of evidence that apply when a lawyer is conducting the defence.

You May Not Know What to Look For

This may be the biggest risk. You can read the police reports and witness statements and still miss something important. An experienced Toronto criminal lawyer may identify:

• inconsistencies in witness statements;
• problems with police evidence;
• Charter violations;
• evidence that can be challenged or excluded; or
• a legal defence you did not know was available.

What appears to be a strong case against you may look very different when the evidence is examined by someone experienced in criminal law.

Representing Yourself at Trial

If your case goes to trial, you may have to:

• question and cross-examine Crown witnesses;
• decide what evidence to present;
• object to evidence;
• make legal arguments; and
• decide whether you should testify.

The judge can explain court procedures, but cannot give you legal advice or tell you how to conduct your defence.

Consider Speaking with a Criminal Lawyer First

Even if you ultimately decide to represent yourself, consider having a criminal defence lawyer review the case first. Understanding the evidence, possible defences and weaknesses in the Crown’s case can help you make a more informed decision about whether representing yourself is a risk worth taking.

Nicholas Charitsis is former City of Toronto Crown Attorney with over 25 years experience in the Toronto courts. He’s available to discuss your case at 416-731-7113 without obligation or further commitment.

Getting and Reviewing Crown Disclosure

If you represent yourself, one of your first jobs will be to obtain and review the Crown disclosure. Disclosure is the evidence the Crown has collected and may use to prosecute the case.

Depending on the charge, disclosure can include:

• police notes and reports;
• witness statements;
• photographs and video;
• text messages and other electronic evidence;
• breath or blood test results; and
• other documents relating to the investigation.

But receiving disclosure and understanding it can be two very different things. Are you able to see the defense issues and strategies that a criminal lawyer might see?

Impaired Driving Disclosure Can Be Technical

An impaired driving case is a good example. If you are charged with driving over 80, you may receive breath-testing records and documents completed by the qualified breath technician.

Knowing that your breath readings were over the legal limit is only part of the analysis. You also need to understand how the tests were conducted and whether the legal requirements were met.

For example, the Criminal Code contains specific requirements concerning approved instrument breath samples. Among other things, it addresses calibration and blank tests, requires at least 15 minutes between breath samples, and sets limits on how much the results can differ.

Do You Understand the Two-Hour Rule?

Under the Criminal Code, it is an offence to have a blood alcohol concentration of 80 mg or more per 100 mL of blood within two hours after you stopped operating the vehicle, subject to a statutory exception.

The Code also contains special evidentiary rules where the first breath or blood sample is taken more than two hours after driving.

That can involve questions such as:

• When did you actually stop driving?
• When was the first breath sample taken?
• Were the required testing procedures followed?
• What do the breath-testing documents actually establish?
• Is there evidence that could affect how the Crown proves the charge?

These are the kinds of issues a person representing themselves may not know to investigate.

Explaining the two-hour rule in driving over 80mg charges >>>

Reading the Evidence Is Not the Same as Analyzing It

This is why disclosure is so important. A document that appears to prove the Crown’s case may raise legal or evidentiary issues when reviewed by an experienced criminal defence lawyer.

The same principle applies beyond impaired driving. In a domestic assault or sexual assault case, the important issue may be inconsistencies between statements, credibility, video evidence, text messages or evidence that provides a different account of what happened.

Understanding what the evidence says is important. Understanding what the Crown can actually prove with that evidence is something different.

Domestic Assault and Sexual Assault Cases

Domestic assault and sexual assault cases can present a very different challenge. These cases may depend heavily on what people say happened rather than on scientific evidence such as a breath test.

The disclosure may contain police interviews, 911 calls, body-camera video, text messages, photographs and statements made by the complainant or other witnesses. A defence lawyer will compare these pieces of evidence and look for important differences or inconsistencies.

Cross-Examining a Witness Is a Skill

If the case goes to trial, reading a witness statement is not enough. You need to know how that statement can be used when questioning the witness in court.

Cross-examination may involve:

• comparing what the witness says in court with an earlier police statement;
• identifying details that have changed or were added later;
• questioning the witness about facts that may affect the reliability of their evidence;
• putting your version of events to the witness; and
• knowing which questions may help your defence — and which questions could hurt it.

The Ontario Superior Court specifically warns self-represented accused persons to think carefully before asking a question because the witness’s answer becomes evidence and could hurt their position.

Special Rules Can Apply in Sexual Assault Cases

Sexual assault cases can be particularly difficult to conduct without a lawyer because special rules may determine what evidence can be introduced and how certain evidence can be used.

There is another important consideration. A self-represented accused may not simply be permitted to personally cross-examine the complainant in a sexual assault prosecution. Ontario’s Crown policy requires the prosecutor to seek an order appointing a lawyer to conduct that cross-examination.

This is another example of why representing yourself can be more complicated than simply knowing your side of the story. You also need to understand how to get that evidence properly before the court.

Legal Arguments and Court Applications

Representing yourself is not just about appearing in court and explaining what happened. Some of the most important issues in a criminal case may require you to identify a legal argument, prepare a formal application and bring it before the judge.

Charter Applications

For example, you may believe that police violated your Charter rights during an arrest, search, detention or investigation. Depending on the circumstances, a lawyer may bring an application asking the court to exclude evidence or provide another remedy.

This can require you to:

• identify the Charter right that was breached;
• understand the legal test that applies;
• prepare the proper application and supporting materials;
• serve the Crown and file the documents with the court within the required time; and
• present evidence and legal arguments to the judge.

Ontario’s criminal court rules contain specific requirements for bringing these applications. Simply telling the judge on the day of trial that you believe your rights were violated may not be enough.

Section 11(b) Applications for Court Delay

Section 11(b) of the Charter of Rights and Freedoms protects your right to be tried within a reasonable time. If a criminal case has taken too long, there may be grounds to bring an application based on unreasonable delay.

But an 11(b) application does not happen automatically. In the Ontario Court of Justice, the defence is expected to raise the issue in advance. The court’s current practice direction generally requires an 11(b) application to be heard at least four months before trial, and the Notice of Application and supporting materials must generally be served and filed at least 30 days before the application hearing.

A person representing themselves may not realize that a potential legal argument exists — or may discover it after an important deadline has passed.

Privacy and Publication Issues

Criminal proceedings are generally open to the public. However, some cases involve privacy issues concerning the accused, complainants, witnesses or children.

Depending on the circumstances, the court may make a publication ban or another order limiting the publication or disclosure of certain information. Some publication bans are required by law, while others require an application to the court.

Again, the difficulty for someone representing themselves is knowing:

• whether a privacy or publication issue exists;
• whether an order applies automatically;
• whether an application must be made;
• what documents and notice are required; and
• what legal argument must be presented to the judge.

These are good examples of why knowing the facts of your case is not the same as knowing how to conduct a criminal defence.

Can Duty Counsel Help You?

If you are representing yourself, you may be able to get help from Duty Counsel at the courthouse. Duty Counsel can provide brief legal advice and may assist you with certain court appearances.

However, Duty Counsel generally does not take over your entire case or represent you at trial. You remain responsible for preparing and conducting your own defence.

Duty Counsel can be helpful, but it is not the same as having your own criminal defence lawyer.

When Should You Consider Hiring a Criminal Defence Lawyer?

You are allowed to represent yourself, but you should think carefully about what is at stake. A criminal case can affect much more than what happens in court.

You should seriously consider speaking with a criminal defence lawyer if:

• you could face jail or a criminal record;
• your employment or professional career could be affected;
• your driver’s licence is at risk;
• you regularly travel to the United States or other countries;
• the charge could affect your immigration status;
• a criminal record could significantly affect your future;
• witnesses will need to be cross-examined;
• there may be Charter issues or court applications; or
• you do not fully understand the evidence or possible defences.

Even if you still intend to represent yourself, having an experienced criminal lawyer review the case first can help you understand the evidence, the possible consequences and what may be involved in fighting the charge.

Read about How a criminal record affects you >>>

Criminal Defence – What Is at Stake

For many people, facing a criminal charge is a once-in-a-lifetime experience. The decisions you make now can have consequences that reach well beyond the courtroom and may affect your career, your ability to drive or travel, and your future opportunities.

If your livelihood and future may be at risk, this is not a time to cut corners. Even if you are considering representing yourself, it makes sense to have an experienced criminal defence lawyer review your case and explain your options before you make that decision.

Ontario Guide for People Representing Themselves

The Ontario Superior Court of Justice publishes A Guide for Self-Represented Accused in Criminal Cases. It explains court procedures, disclosure, pre-trial applications, preparing for trial, questioning witnesses and other issues you may face if you decide to represent yourself.

Read the Ontario Court’s Guide for Self-Represented Accused →

Thinking About Representing Yourself?

Yes, you can represent yourself in criminal court, but it may be worth getting legal advice first.

FAQs about Representing Yourself in Criminal Court

Q. Can I represent myself in criminal court in Ontario?

A. Yes. You generally have the right to represent yourself in criminal court. However, you are responsible for understanding the charges, reviewing the Crown disclosure, following court procedures and preparing your own defence. The judge can explain the process but cannot give you legal advice or act as your lawyer.

Q. Do I have to follow the same court rules as a criminal lawyer?

A. Yes. If you represent yourself, you are expected to follow the applicable rules of evidence and court procedure. This can include filing documents on time, questioning witnesses properly, making objections and preparing any Charter or other legal applications required in your case.

Q. Can Duty Counsel represent me if I do not have a lawyer?

A. Duty Counsel may provide brief legal advice and help with certain court appearances. However, Duty Counsel generally does not take over your entire case or represent you at trial. If you continue without your own lawyer, you remain responsible for preparing and conducting your defence.

Q. Can I represent myself in an impaired driving or DUI case?

A. Yes, but impaired driving cases can involve technical evidence and complicated legal rules. You may need to understand breath-testing records, police procedures, Charter issues and the two-hour rule. Having an impaired driving lawyer review the disclosure may identify issues you would not recognize on your own.

Q. Should I speak with a criminal lawyer before representing myself?

A. It is worth considering. Even if you ultimately decide to represent yourself, a criminal lawyer can review the evidence, explain the possible consequences and identify legal issues or defences you may not have considered. This can help you make a more informed decision about how to handle your case.