Criminal Trial without defendant

Factual Questions
21

I should add that this issue of the accused refusing counsel isn’t just a hypothetical - I was involved in a case several years ago where this situation arose. The accused, charged with two murders, had a lawyer. He fired him in open court, calling him a racist. (Accused was First Nation, lawyer was white.)

Since the accused had some mental health issues, but fell well short of mental incapacity, the trial judge was concerned that the accused couldn’t defend himself on such a serious charge. The trial judge explored the option of keeping the lawyer on in an amicus capacity, similar to what Bricker has described, but the accused kept insisting he didn’t want him. The lawyer also advised the court that the accused refused to talk to him, and in light of the racism allegation, did not think that there could be the necessary level of trust and confidence necessary for him to perform his professional duties.

Eventually, the trial judge felt he had no choice but to cut the lawyer loose and let the accused defend himself. The jury eventually convicted the accused on two counts of murder.

On appeal, his new counsel challenged the trial judge’s decision to allow the matter to proceed without a defence lawyer, but the Court of Appeal dismissed the appeal, saying that the trial judge had prpperly respected the accused’s right to represent himself.

22

I think the court of appeals got it right. There are times when it’s a very, very, very bad idea to represent yourself, but you have an absolute right to.

23

I certainly agreed with the trial judge’s decision - seemed to be the only option in a bad situation.

24

I read of a somewhat similar instance in a Daily Telegraph obituary some years ago, though I can’t trace it now. The prosecuting barrister had just finished putting the case for the prosecution when he learned that the prisoner had no legal representation (there was no statutory provision for indigent defendants in those days). He at once offered to put the case for the defence and, with the judge’s permission, set about demolishing his own arguments - and secured an acquittal.