ONTARIO COURT OF JUSTICE
DATE: February 27, 2025
BETWEEN:
HIS MAJESTY THE KING
— AND —
STEPHEN DOHERTY
Before Justice B. Green
Heard on February 27, 2025
Ruling on the Pretrial Application for the Appointment of Counsel for the Cross-Examination of the Crown’s Witnesses
Ms. K. Beard — counsel for the Crown
The defendant Stephen Doherty — on his own behalf
Green J.:
A. Introduction
[1] Mr. Doherty is charged with assault with a weapon, 2 counts of uttering threats, 2 counts of mischief, using ammunition in a careless manner and breach of an undertaking. These charges involve two different incidents that are alleged to have occurred on July 8 and August 3, 2024. While there are two separate informations, Mr. Doherty consented to have both trials run concurrently since both incidents involve the same witnesses. The matters are set for a two-day trial commencing on June 17 and continuing June 18 in #2 Court.
[2] Mr. Doherty is representing himself. While preparing for the upcoming trial, the adult witnesses expressed concern to a victim witness worker that they are afraid of Mr. Doherty, and they do not want him to cross-examine them directly. The witnesses are not children and Mr. Doherty is not charged with any of the offences set out in section 486.3(2) of the Criminal Code. As a result, the crown brought an application pursuant to section 486.3(3) of the Criminal Code to appoint counsel for the purposes of assisting Mr. Doherty with cross-examining these witnesses so that he does not confront them directly during the trial.
[3] The appointment of counsel for cross-examination of witnesses pursuant to this subsection is discretionary. The onus is on the crown to establish on a balance of probabilities that the order “would allow the giving of a full and candid account from the witnesses of the act complained of or would otherwise be in the interest of the proper administration of justice” [emphasis mine].
[4] The crown served and filed a notice of application with supporting affidavits from a victim services worker outlining the basis for this application. The matter was scheduled to be heard on February 18, 2025. The crown provided ample time to address this application since the trial does not commence until June 17, 2025. The crown also tendered two additional affidavits from a case manager in the crown’s office and from the local Crown Attorney to provide some background facts about the ages of the complainants, their relationship to the defendant and a summary of the allegations.
[5] On the first date scheduled for the hearing, Mr. Doherty sought to challenge the evidentiary basis for the crown’s application. He wanted to ask the witnesses questions about disclosure as well as cross-examine the affiants and/or the witnesses about the allegations. I allowed Mr. Doherty the opportunity to cross-examine the victim service worker about the basis for the application. He abandoned the request to cross-examine the crown’s witnesses who sought the protection of this court order and the affiant who provided background information.
[6] The matter was adjourned to February 27 for the crown to call viva voce evidence in support of the application. Mr. Doherty was permitted to cross-examine the victim service worker about the witnesses’ concerns and whether they can give a full and candid account if he is permitted to ask them questions directly. On both dates, it was difficult to focus Mr. Doherty’s attention on the matter in issue which is a factor that is relevant to the interests of the proper administration of justice. Mr. Doherty is not a lawyer, so it is understandable that he was not sure about what is relevant evidence for this application.
[7] Mr. Doherty was not opposed to the idea of having counsel to assist him with cross-examination. Rather, he sought a more fulsome order to provide him with a lawyer throughout the trial pursuant to section 684 of the Criminal Code. I explained to him that section applies in the Court of Appeal so I cannot make that order. I also explained that I do have the power to appoint amicus but that type of appointment is for the benefit of the court.
[8] Mr. Doherty sought clarification from the court about the role of an advocate appointed pursuant to subsection 486.3, he wanted to know whether the appointed advocate would disclose their conversations and whether he could instruct counsel on what questions he wants him/her to ask the witnesses. Mr. Doherty also wanted to have input into who is appointed to represent him during cross-examination. In particular, he asked for a female lawyer because he believes that would be a tactical benefit to him. Preferably, he would like to have two lawyers.
[9] There are various guiding decisions about each of the discreet issues Mr. Doherty raised during this pretrial application. To avoid any delays of the trial, in addition to deciding whether the crown has met the onus set out in section 486.3(3) of the Criminal Code, I will provide specific directions for how counsel will be selected, the benefits and limitations of that counsel and Mr. Doherty’s role in instructing that counsel.
B. Facts in support of the application:
[10] Mr. Doherty initially sought to cross-examine one of the affiants about issues related to disclosure and the veracity of the allegations. Prior to the second day of this application, the crown provided Mr. Doherty with an additional affidavit from the Crown Attorney summarizing the facts. As a result, Mr. Doherty was satisfied that the contents of that document could be made an exhibit without any cross-examination. It was filed as exhibit 1 on the application.
[11] While the appointment of counsel is intended to enhance the truth-seeking goal of a trial, this application is not concerned with the truth of the allegations. In many respects, this type of pretrial hearing is similar to a bail hearing. The court relies on the facts as alleged when making the determination of whether the crown has met the test set out in section 486.3(3) of the Criminal Code. Mr. Doherty may still bring a separate application to address any disclosure issues and he will have a fulsome opportunity to challenge the crown’s case during the trial.
[12] The second exhibit filed by the crown was a series of affidavits prepared by Ms. MacLellan. She is a victim service worker who interviewed all four of the crown’s witnesses. Mr. Doherty was given the opportunity to cross-examine Ms. MacLellan about the evidence in the affidavits that she provided to the court.
[13] During the cross-examination, Mr. Doherty elicited evidence from the affiant that she is an employee of the Attorney General. She receives referrals from the crown attorney’s office and the police with respect to her clients. As part of her role, Ms. MacLellan provides assistance and support to victims. She provides the complainants with courts updates, release documents, as well as trial and victim impact preparation. Mr. Doherty suggested that she is biased in favor of the complainants and that bias impacted the manner in which she reported the complainants’ concerns. Ms. MacLellan explained that she honestly reported what the witnesses told her in anticipation of the upcoming trial.
[14] Ms. MacLellan was also challenged by Mr. Doherty about a word that she used in the affidavit. From his perspective, her lack of comprehension of that word was indicative of her bias.
[15] Although Ms. MacLellan assumes a position that is perceptually adverse in interest to Mr. Doherty, I found her to be a fair, candid and credible witness. I do however agree with Mr. Doherty that, in future, the crown’s witnesses in a pretrial application should be referred to as complainants and not “victims”. This reference presupposes Mr. Doherty’s guilt which is not appropriate.
[16] By way of background, there are four complainants. They are Mr. Doherty’s neighbours. The police have been called six different times for disputes between Mr. Doherty and his neighbours prior to the alleged offence dates. On July 8, 2024, Mr. Drysdale and his wife, Ms. Butler, reported to police that, after a heated exchange, Mr. Doherty threatened Mr. Drysdale with an axe handle and then struck him with the axe handle causing him to fall to the ground. Ms. Butler began screaming when her husband was attacked with the weapon. The incident was captured in a video recording.
[17] Mr. Drysdale is 84 years old. He described Mr. Doherty to Ms. MacLellan as unstable, erratic and that he suffers with mental health issues. Mr. Drysdale has ongoing concerns for his safety. He is fearful of the defendant because of their “unfortunate history” and his most recent experiences with him. He related that he would feel intimidated and nervous if Mr. Doherty is permitted to cross-examine him. The victim service worker stated in the affidavit that Mr. Doherty “would not be able to give his best testimony” in such frightening circumstances.
[18] Ms. Butler is Mr. Drysdale’s wife. She is 77 years old. The victim service worker explained that Ms. Butler has a “huge degree of fear” towards the defendant. She is intimidated by him and just the sight of him makes her afraid. She expressed concern that, if he is permitted to cross-examine her directly, she “would stumble over her words, be unable to speak clearly and would be trembling.”
[19] After Mr. Drysdale was allegedly assaulted with a weapon, another neighbour became involved in the occurrence. Mr. Robb Gingell and his wife, Kim Gingell approached Mr. Doherty. Mr. Gingell was carrying what appeared to be a golf club. There was an “animated” discussion between everyone. Mr. and Mrs. Gingell allege that Mr. Doherty stared at them and stated, “you two are next”.
[20] Mr. Doherty was arrested and released on an undertaking not to communicate with these witnesses or attend within a radius of their properties. Less than a month later, the Gingells called the police and reported that Mr. Doherty walked past their home, walked onto their lawn, he grabbed a 911 sign and bent it. Mr. Gingell was not at home at the time, but he returned home shortly thereafter. He saw Mr. Doherty nearby and began yelling at him. Mr. Doherty responded by raising his hand and making a motion as if he was pointing a gun at him. Mrs. Gingell advised that he used his two fingers to point at his eyes and then pointed at them, a gesture that he was watching them.
[21] Mrs. Kim Gingell is 68 years old. She expressed concerns about Mr. Doherty’s mental health issues. Ms. Gingell was described as “terrified of the accused”. She does not want to interact with him or have any communication with him at all. She explained that she would feel nervous, panicked, emotional and she may cry if Mr. Doherty will be able to ask her questions.
[22] During the interview with Ms. MacLellan just the thought of Mr. Doherty confronting Ms. Gingell made her very upset. The worker explained that “she became flustered, started to raise her voice and speak rapidly as she expressed very adamantly that she did not wish to be cross-examined by the accused.”
[23] Mr. Rob Gingell is the youngest witness at 67 years old. The allegations are that Mr. Gingell approached Mr. Doherty on both dates. The first time he approached him with a golf club, and they engaged in a heated exchange. The second time, Mr. Gingell initiated a verbal confrontation after Mr. Doherty bent a sign on his lawn. Consistent with his responses to Mr. Doherty in the past, Mr. Gingell initially advised the victim service worker that he didn’t care if Mr. Doherty asked him questions.
[24] After some thought, Mr. Gingell changed his mind because he is aware that Mr. Doherty has a “long and significant history of mental health issues”. He would be uncomfortable if Mr. Doherty asked him questions. Unlike the other witnesses who expressed fear, Mr. Gingell was concerned about whether he could control his own emotions while being cross-examined by Mr. Doherty. During the conversation with Ms. MacLellan, she noted that Mr. Gingell became upset, he raised his voice, spoke quickly, and expressed his anger about the defendant.
C. Legal Analysis
i. General principles:
[25] The crown has brought this application pursuant to section 486.3(3) of the Criminal Code which states:
486.3 (3) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness who is not entitled to make an application under subsection (1) or (2), or on application of such a witness, order that the accused not personally cross-examine the witness if the judge or justice is of the opinion that the order would allow the giving of a full and candid account from the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice. If the order is made, the judge or justice shall appoint counsel to conduct the cross-examination.
Factors to be considered
(4) In determining whether to make an order under subsection (3), the judge or justice shall consider
(a) the age of the witness;
(b) the witness’ mental or physical disabilities, if any;
(c) the nature of the offence;
(d) whether the witness needs the order for their security or to protect them from intimidation or retaliation;
(e) the nature of any relationship between the witness and the accused;
(f) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and
(g) any other factor that the judge or justice considers relevant.
Application
(4.1) An application referred to in any of subsections (1) to (3) may be made during the proceedings to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or justice has not been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.
No adverse inference
(5) No adverse inference may be drawn from the fact that counsel is, or is not, appointed under this section.
[26] Mr. Doherty was assured at the outset that, if I decide to order the appointment of counsel, that is not an indication that I believe the allegations, nor will it impact my assessment of the case against him during the trial. This section clearly states that “no adverse inference may be drawn” from the appointment of counsel.
[27] Mr. Doherty sought to challenge the basis for this application. He wanted to cross-examine the witnesses directly and/or the affiants about the expressed concerns with respect to him cross-examining them during the trial. He also wanted to ask questions about other issues that will not assist me with deciding this application.
[28] During his submissions, Mr. Doherty was focussed on his fair trial rights. A criminal trial is not only about the interests of the defendant. Although this decision dealt with a different evidentiary aid for complainants, the Supreme Court of Canada made guiding remarks in R. v. L.(D.O.), [1993] 4 S.C.R. 419 at paras 46, 48-49:
Based on this Court's pronouncements that the principles of fundamental justice reflect a spectrum of interests from the rights of the accused to broader social concerns, a fair trial must encompass a recognition of society's interests. Our Canadian society has a vested interest in the enforcement of criminal law in a manner that is both fair to the accused and sensitive to the needs of those who participate as witnesses. In R. v. B. (K.G.), [1993] 1 S.C.R. 740, this Court recognized the need to balance the accused's interests in a criminal trial with the interests of society. The respondent submits that the effect of s. 715.1 of the Criminal Code is to allow, as evidence at trial, statements taken out of court "without any of the procedural requirements, controls and safeguards that are built into the traditional trial process and that have become fundamental to our system of justice". One must recognize that the rules of evidence have not been constitutionalized into unalterable principles of fundamental justice. Neither should they be interpreted in a restrictive manner which may essentially defeat their purpose of seeking truth and justice.
And further at paras 48 and 49:
Children may have to be treated differently by the criminal justice system in order that it may provide them with the protections to which they are rightly entitled and which they deserve. Even in this particular case, when the interests of the child witness may seem completely at odds with those of the accused, one must recall the words of La Forest J. in R. v. Lyons, [1987] 2 S.C.R. 309, at p. 362:
It seems to me that s. 7 of the Charter entitles the appellant to a fair hearing; it does not entitle him to the most favourable procedures that could possibly be imagined.
Therefore, the question is not whether the accused can imagine a situation where his rights would be greater but rather, whether s. 715.1 violates his rights. [emphasis mine]
[29] In addition to balancing the potentially competing interests of the participants, a Court must also guard precious court resources. In R. v. G.M.C. 2022 ONCA 2 at para 109, The Court of Appeal observed that:
It is a bedrock principle of our criminal justice system that an accused person has a constitutional right to a fair trial. But that does not mean a trial without limits. While giving paramount consideration to the right of an accused to make full answer and defence, a trial judge has a public responsibility to ensure appropriate use of valuable public resources (courtroom and court staff time) and to ensure that other participants in the justice system (including witnesses and jurors) are not unnecessarily burdened.
[30] In the seminal decision of R. v. Levogiannis, [1993] 4 S.C.R. 475 the Supreme Court emphasized that “the goal of the court process is truth seeking and, to that end, the evidence of all those involved in judicial proceedings must be given in a way that is most favourable to eliciting the truth.” Testimonial aids like virtual appearances and the appointment of counsel for cross-examination do not inhibit the accused’s right to confront their accusers. Rather, these aids facilitate the search for truth by ensuring witnesses are able to provide a fulsome account.
[31] I did not require the crown to produce the witnesses who seek this protective order during the pretrial application for the defendant to cross-examine them directly in order for the crown to establish that witness cannot give a full and candid account if s/he is directly cross-examined by the defendant. That process would make absolutely no sense, it would be circular and would circumvent the purpose of this section. The Supreme Court explained in R. v. Levogiannis, supra at para. 34 that a trial judge has "substantial latitude" when deciding these applications and “the evidence need not take any particular form”.
[32] I permitted the crown to rely on the evidence of the victim services worker who interviewed the witnesses about their fears, concerns and whether the witness believes they will be able to provide a full and candid account if they are cross-examined by the defendant. I also permitted the crown to rely on the evidence in an affidavit provided by the Crown Attorney about the allegations.
[33] In R. v. Amiri, 2024 ONSC 5036 at para 8, Justice Bird observed that the trial judge failed to give the Appellant the ability to cross-examine the affiant on a section 486 application and that was found to be an error on review. As a result, Mr. Doherty was permitted to cross-examine the victim services worker because her evidence was relevant to this application. He abandoned his other requests but I would not have allowed him to cross-examine the case manager or the Crown Attorney because the issues he wished to explore were irrelevant to this application.
ii. Has the crown met its onus for the order?
[34] As noted earlier, the Supreme Court explained in R. v. Levogiannis, supra at para 13 that “the goal of the court process is truth seeking and, to that end, the evidence of all those involved in judicial proceedings must be given in a way that is most favourable to eliciting the truth”. There are statutorily prescribed factors that seek to achieve the truth-seeking function of a trial and balance the rights of the defendant to directly confront his or her accuser, the interests of the complainants not to be traumatized during the proceeding and society’s interest in a fair trial for all participants.
[35] The crown must establish on a balance of probabilities that “the order would allow the giving of a full and candid account from the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice.” To make this determination, I am guided by the factors to be considered that are outlined in subsection 486.3(4) of the Criminal Code.
[36] In R. v. Tehrankari, [2008] O.J. No. 5652 at para 9, Justice McKinnon cautioned that:
I do not read the amended sections as establishing a carte blanche for ordering counsel to cross-examine witnesses based solely on the fact that a witness is nervous or uncomfortable. Experience shows that many persons charged with sexual assault are subjected to cross-examination by highly aggressive defence counsel, and no doubt the complainants involved would prefer not to be subjected to such cross-examination. The preference of a witness cannot drive the answer to the question in issue.
And further that at paras 19 and 20:
Weighing the unfettered right of the accused to defend himself against the discretionary order that I might make to accommodate a witness, I believe I must be satisfied on a balance of probabilities that a full and candid account would be unachievable should the accused cross-examine an individual witness. The evidence on a voir dire must establish the "necessity" of making such an order. I am not prepared to hold that expert behavioural evidence would be required in every case, but at a minimum there must be reliable, trustworthy evidence from sources with intimate knowledge of the individual witness so that the court can be satisfied on a balance of probabilities that a full and candid account could not be achieved in the event the witnesses were subject to cross-examination by the accused.
I am buttressed in this view by the words of Morden A.C.J.O. in M.(P.), supra, at p. 347 where he stated:
I am not suggesting that evidence on this issue has to take any particular form and, certainly, that it be a litany containing the words of the statute, but, at least, it must have some reasonable relevance to the necessity requirement of the statute.
[37] Since the Supreme Court’s decision in Levogiannis supra, there have been multiple decisions in Ontario that have considered the test to be met in this application. Justice Boswell held in R. v. Predie, [2009] O.J. No. 2723 at paras 14 and 15 that:
The circumstances need not be ones that would create inordinate or exceptional stress. The section requires only that the court form the opinion that the appointment of counsel is necessary to obtain a full and candid account from the witness.
It is not necessary, nor in my view appropriate, that a trial run be undertaken. In other words, it is not necessary that the witness try to give evidence and fail, before an order appointing counsel can be made.
[38] The crown astutely observed that in 2015 the wording of section 486 was amended to remove any reference to “necessary”. The test is more broadly worded that the Court must be satisfied that the order “would allow” for the giving of a full and candid account or otherwise be in the interests of justice.
[39] All four witnesses described Mr. Doherty as suffering from mental health issues. In addition, I have considered that Mr. Drysdale and Ms. Butler are elderly witnesses who are frightened of the defendant. Neither of them feels that they will be able to fully express themselves if they are confronted by the defendant. Similarly, Mrs. Gingell is terrified of Mr. Doherty. She is worried about crying, panicking and not being able to articulate her thoughts. The allegations against Mr. Doherty with respect to the assault with a weapon on Mr. Drysdale are serious. Moreover, the interactions on July 8 are captured on a video recording.
[40] The crown has clearly met its onus of establishing on a balance of probabilities that an order appointing counsel to cross-examine each of them would allow the giving of full and candid accounts from these witnesses of the acts complained of by them.
[41] In contrast, Mr. Gingell is not fearful of the defendant at all. He approached the defendant and verbally engaged him on both occasions. In addition, Mr. Gingell did not express concern about how the defendant will act during the trial. Rather, Mr. Gingell’s concern was that he would not be able to control his own emotions. I am not aware of any mental health issues or neuro divergence that could impact Mr. Gingell’s ability to manage his temper. He is an adult who will be directed to answer questions thoughtfully, respectfully while showing age-appropriate restraint and decorum.
[42] There is, however, a second part to the test in subsection 486.3 that can be relied on when the order “would otherwise be in the interest of the proper administration of justice”. During these proceedings, I found that Mr. Doherty was distracted by various irrelevant issues including references to the bible and communication styles. He was not focused and appeared to be somewhat disorganized when addressing me on specific issues.
[43] I appreciate that Mr. Doherty is not a lawyer, and he was receptive to the court’s directions for the most part. Nevertheless, I am concerned that the proceedings will be unnecessarily protracted or stray into various irrelevant subjects between the parties if Mr. Doherty is given the opportunity to personally cross-examines this witness. I have also considered that Mr. Doherty expressed that he will benefit from counsel assisting him to cross-examine the witnesses as long as he has input into the questions being asked of them. As a result, it is more likely than not that the appointment of counsel to cross-examine Mr. Gingell is in the interests of the proper administration of justice.
iii. Additional directions about how to select counsel:
[44] Mr. Doherty wasn’t consistent in his position during the application about whether he wanted to consent to the crown’s application. He vacillated between acknowledging the benefits of having counsel to assist him, the potential negative perception of directly confronting the complainants and insisting on his right to confront his accusers.
[45] He was unequivocal that, if counsel is appointed for cross-examination, he wants to have input into the gender of that counsel. He did not express any concerns about any proposed counsel’s skills or experience. He did not have a particular lawyer in mind who he hoped would be available to assist him. He was adamant that it would be a tactical benefit to him that the lawyer is a woman. Presumably, he believes that a female lawyer would be a more persuasive or favourable advocate with a female complainant, jurist and/or a female crown. Mr. Doherty also asked the court to appoint two lawyers to assist him with cross-examination.
[46] Justice Bird recently observed in R. v. Amiri, 2024 ONSC 5036 at para 21 that:
While orders appointing counsel to cross-examine complainants are commonplace, there is very little guidance on what procedure should be followed in deciding who the lawyer ought to be. Section 486.3(4) was silent on the matter, saying only that the judge shall appoint counsel. No process for doing so was included in the legislation that applied at the time, or in any subsequent provisions.
[47] Justice Bird relied on an earlier decision of Justice Wakefield in R. v. P.N.S., 2010 ONCJ 244 as well as the process for selecting assessors in dangerous offender applications to arrive at the conclusion at para 26 that “the selection of 486.3 counsel is one that is important to the fair trial rights of a self-represented accused person”. Furthermore, she found at para 27 that “the failure to give the Appellant the opportunity to make submissions including proposing a different lawyer to conduct the cross-examination, was a procedural error.”
[48] Mr. Doherty must be given the opportunity to suggest a criminal lawyer of his choosing, who is prepared to take on the role of 486.3 counsel and who is available for the trial dates. If the lawyer of his choosing is not available, he may bring an adjournment request to set a new trial date when that lawyer is available. Any delay that occurs because of his choice of counsel may be attributable to the defendant.
[49] If Mr. Doherty does not have a particular lawyer in mind, it is ordered that he must be provided with a list of lawyers from Legal Aid who are available for the trial date and who are willing to assume the role of 486.3 counsel. Mr. Doherty will have the opportunity to choose from that list of lawyers regardless of whether any of them are female. Mr. Doherty’s rationale for insisting on a female counsel is specious. The gender of counsel is not important to protecting his fair trial rights. In addition, he should only be assigned one lawyer for these proceedings.
[50] If Mr. Doherty is not satisfied with the list of available counsel, he must immediately bring an application to address his concerns in front of me. I am directing that any such application is to be heard with dispatch and added to the list in any of the courts in which I am presiding to avoid delays in the trial proceeding as scheduled. To be clear, Mr. Doherty’s participation in the selection process must be meaningful. He will not be permitted to thwart the appointment of counsel by rejecting counsel without reason.
iv. The role of 486.3 counsel:
[51] Mr. Doherty expressed concern that the lawyer appointed to cross-examine the witnesses will have access to his questions and may inform the crown of his defence prior to trial. I explained to Mr. Doherty that the lawyer that is appointed to cross-examine the witnesses is bound by the same solicitor-client privilege that applies to private counsel. Although there is some debate in the caselaw about whether appointed counsel is in a “solicitor-client relationship”, in R. v. Bakhash, 2017 ONSC 3835 at para 49, the Court was very clear that:
There are, however, some aspects of a solicitor-client relationship that are encompassed by an appointment under s. 486.3. The lawyer in reviewing disclosure is bound by the implied undertaking. The lawyer is required to conduct the cross-examination in a manner that advances the accused's interests. Undoubtedly, as well, the lawyer is subject to the duty of confidentiality. As Code J. noted in Faulkner, supra (and notwithstanding my disagreement regarding the ultimate characterization of the relationship) a court-appointed lawyer needs some of the important characteristics of a fully retained defence lawyer to be able to do his or her job. Among those characteristics includes the ability to discuss strategy, tactics, and evidence in a confidential manner. [emphasis mine]
[52] This assurance should alleviate any of Mr. Doherty’s concerns about the confidentiality of his relationship with the appointed counsel.
[53] Mr. Doherty also sought some directions about the extent of his involvement with the questions that appointed counsel will put to the witnesses. For example, he asked about whether he would be supplying the lawyer with a list of questions that s/he must ask during the trial. A number of courts have grappled with the issue of how the unrepresented defendant ought to instruct counsel and the parameters of that relationship. The following decisions provide significant guidance:
R. v. Bakhash, supra at para 48: Although defence counsel is never a mere mouthpiece for his or her client, instructions must be taken in critical areas. I agree with Gray J. that court-appointed counsel must put the defence theory to the witnesses, within proper reason of course: Thornton, supra.
R. v. Thorton, 2014 ONSC 6688: The Court held that there is an obligation for 486 counsel to “consult with the accused and take instructions”. In addition, at paras 58 and 59:
Where the appointment of counsel is made, it is not to be forgotten that the accused still has the right to make full answer and defence. Were it not for the mandatory appointment of counsel, the accused would have the unfettered right to conduct his own cross-examination. In my view, court-appointed counsel is obliged to pursue any line of inquiry that the accused wishes to pursue, provided it does not contravene any ethical considerations and is otherwise relevant. In this respect, the position of court-appointed counsel is different from that of retained counsel, who may be able to decline to pursue certain lines of inquiry on tactical grounds.
That is not to say that counsel must ask specific questions written out for him or her by the accused. Neither must counsel necessarily ask questions in the specific form dictated by the accused. In that respect, I agree with the decision of my colleague Code J. in R. v. Faulkner, supra. However, at a minimum counsel must pursue lines of inquiry that the accused wishes to pursue, provided it is proper to do so.
- In R. v. Shenker, 2021 QCCQ 2376, the Court provided this very helpful summary of various judgments that have addressed this issue:
To summarize, the following principles outline the nature - and limits - of appointed counsel's involvement in a matter where he is forced upon the self-represented accused by operation of s. 486.3 C.C.:
- Designated counsel represents and assists the accused only for the limited purpose of preparing and conducting the cross-examination(s). In other words, he does not act as defence counsel "at large".
- Whether or not there is an application under s. 486.3 C.C., the self-represented accused cannot be forced to subject the complainant to a cross-examination. In other words, even if counsel is appointed by the Court as a preventive measure, the accused is still free to declare that he has no questions for the complainant. The presence of a court-appointed lawyer does not compel the accused to proceed to a cross-examination. Such tactical decisions remain the accused's.
- Similarly, once the cross-examination has begun, the self-represented accused can unilaterally choose to put an end to it at any time, even if the designated attorney believes that this would be an unwise tactical decision.
- Court-appointed counsel has an obligation to obtain and review the Crown disclosure before proceeding to the cross-examination.
- Court-appointed counsel has an obligation to confer with the self-represented accused in advance in order to fully grasp the anticipated theory of the defence. Counsel must also craft his cross-examination accordingly, giving the accused's anticipated defence due regard and striving to advance the defence in question, if this is legally and strategically feasible.
- The self-represented accused may propose general lines of questioning to the court-appointed lawyer. Unless those lines of questioning are inadmissible, improper or otherwise vexatious, counsel shall attempt to pursue them to the best of his abilities.
- None of the foregoing may ever force an attorney to compromise his ethical or professional duties. No matter what lines of questioning the accused wishes to have explored, the attorney must respect the bounds set by the Supreme Court of Canada in R. v. Lyttle, as well as countless other appellate decisions that prohibit harassing, redundant, misleading, collateral, aggressive or abusive questions. After all, as a matter of principle, even when an accused is self-represented, the same rules of evidence apply.
- The self-represented accused cannot force court-appointed counsel to read a script of pre-drafted questions. Nor may he demand to vet the lawyer's anticipated questions in advance. Although counsel must respect the theory of the defence and the lines of questioning proposed by the accused, it remains the lawyer's prerogative and responsibility to decide how to conduct the cross-examination, what questions to ask, in what order and with what tone.
- Should any conflict arise between the self-represented accused and the designated lawyer about questions proposed by the accused, the matter should be raised before the trial judge (in the absence of the witness) who will make a ruling on the question's admissibility.
[54] I agree with and adopt the reasons in the Shenker decision as the process to be followed with respect to the manner in which Mr. Doherty will instruct counsel and the ability to raise objections with the Court if counsel refuses to address specific areas of cross-examination.
v. Additional issues addressed with Mr. Doherty at the end of the hearing:
[55] To assist Mr. Doherty with preparing for the trial, he was directed to the Ontario Court of Justice website at https://www.ontariocourt.ca because it provides ample information and resources to assist the unrepresented litigant. In addition, to ensure that the proceedings are not delayed if Mr. Doherty is unable to access the site, the following forms, documents and information pages were printed off and provided to him in hard copy:
- A copy of the Charter;
- A copy of the Criminal Rules of the Ontario Court of Justice;
- Three blank application forms;
- The “definition and glossary of criminal terms”; and
- The “step by step” directions for a “trial court”.
[56] Mr. Doherty was directed that, if he has an issue with outstanding disclosure, he should write to the crown’s office as soon as possible. If he wishes to bring an application for issues with respect to purportedly missing disclosure and/or any alleged breaches of his Charter rights including the manner of his arrest, he must serve and file a completed application form in advance of the trial in compliance with the Criminal Rules of the Ontario Court of Justice.
[57] In addition, Mr. Doherty was provided with some additional guidance for the trial:
He was instructed to attend the trial with his disclosure readily available either in a hard copy or accessible to him on a computer. It is essential to have the disclosure to compare what witnesses have said before the trial and compare that to their evidence.
He was instructed to attend with instruments to keep careful notes whether that is a pen and paper or a computer;
The roles of the participants were explained to Mr. Doherty as follows [1]:
- A trial judge is an independent and impartial judicial officer who hears your trial and decides if you are not guilty or guilty. The judge knows nothing about your case at the start of your trial except your charges. The judge’s role is to ensure that you have a fair trial. The judge has an obligation to assist you to ensure that you have a fair trial, but it is not the judge’s role to give you legal advice or to be your legal representative.
- The Crown is the person with the authority to prosecute the charges against you. It is the Crown’s responsibility to prove all the essential elements of the offences with which you are charged beyond a reasonable doubt.
- The court clerk who is sitting in front of the judge assists in many ways including reading the charges out loud and asking you if you plead guilty or not guilty, swearing or affirming witnesses, and taking care of the exhibits during the trial.
- The court reporter is responsible for making a record of what is said during the trial. You need to understand that everything that is said in court is recorded.
[58] I explained to Mr. Doherty that the Crown is not required to call witnesses or subpoena witnesses for his defence. If he wants to call witnesses or rely on the evidence of other witnesses during the trial, he should send that list to the crown who will decide if they will make the witness available for the trial. If the crown will not arrange for the witness’ attendance, he will have to subpoena them himself, in advance of the trial, to ensure their attendance in person. He was instructed that he can attend at the front counter of the Peterborough courthouse for assistance with how to subpoena a witness.
D. Conclusion:
[59] In summary, an order has been made appointing counsel for the purpose of cross-examining Mr. Drysdale, Ms. Butler, Mr. Gingell and Mrs. Gingell. Mr. Doherty must have some input into the selection of that counsel. He can either choose his own lawyer who is prepared to act as appointed counsel on the dates set for trial or he must choose from a list of lawyers supplied by Legal Aid. If Mr. Doherty obtains a lawyer who is willing to act as 486.3 counsel, but that lawyer is not available for the trial date, he must promptly bring an adjournment application.
[60] Mr. Doherty must participate in the selection of 486.3 counsel in a meaningful way. I will not allow the order to be thwarted by rejecting counsel without a bona fide reason. If either the crown or Mr. Doherty have issues with the selection process, they are directed to bring an application for directions without delay.
[61] Once counsel has been appointed for the purposes of cross-examining the witnesses, that counsel must review the disclosure and view the recordings of the incidents. He or she must prepare for the trial, which includes seeking confidential instructions from Mr. Doherty about what questions he has for the witnesses and the theory of the defence. Counsel does not have to follow a script and he or she is bound by the rules of evidence and ethics.
[62] If there is a question or area of cross-examination that Mr. Doherty wants to put to the witness and counsel is refusing to do so, that issue is to be raised with the Court during the trial so that I can provide directions. Since the crown cannot communicate with a witness about their evidence while the witness is being cross-examined, Mr. Doherty should not have any issue with addressing these issues in the presence of the crown.
[63] Finally, I am ordering that this matter return in front of me in the next two weeks to provide an update as to the selection of appointed counsel and if s/he is available for the dates that are scheduled for this trial.
[1] All this information was extracted from the guide to self-represented litigants.