Reflections from Self Representation – Part 4

part4

By Matt Paul

November 18, 2018

In part one of this series I wrote about Legal Aid, Duty Council and Three choices that people have when faced with a criminal charge in Ontario.

In part two I wrote about different types of lawyers and expectations.

In part three I wrote about important details, procedures, rights, charges and the criminal code.

In this segment I will talk about free legal research and a web resource that will help. This will be important in your closing remarks. We are not there yet however nothing is ever fast in court. You will need to take a patient and careful approach to the process and courtroom.

When you represent yourself it is important to pick apart everything that a witness says on the stand. The crown will call witnesses that will say facts, details and situations that support the charge against you. You will be given the opportunity to ask them questions to clarify things and questions the certainty of their statements. You can also ask them questions that support your version of events like “Is it possible that you saw this or that this may have looked like that?” You want to get them off the story that the Crown wants them to tell to the judge. This story has been rehearsed prior. The crown gets all the witnesses together to co-ordinate the story. Anyone who gives evidence is not your friend, they are not on your side, they are supporting the crown’s case, so you need to approach them not with hostility, however with a skeptical approach. Question every detail they testify to in court. Remember time is not an issue. The longer you keep someone going and the more questions you ask the more any uncertainty and doubt can be raised. You want to ask questions with about other possible scenarios.

You will repeat this process with police officers and remember you do not need to afford them any additional respect. Treat them like people who can be mistaken, who can lie and who can miss details. They often forget to do parts of their job and when they forget, they may do things or make reports that spin things in a positive light that might not be factually accurate. You need to highlight any such details if there are any in order to damage the evidence that they will provide for the judge to consider. If you can damage the credibility of the Police evidence the possibility of defeating the charge is great, as the police are the people that gather the information against you and present that to the crown for prosecution. On the stand they are just another witness, however, because they do this for their job, the fairness of their testimony has added value. They are also allowed to refer to their notes, so much of what they say will be accurate in their point of view. You will need to question how they arrived at their point of view and whether it is reasonable based on what happened or whether there could be other possible inferences. Asking an officer about other possible interpretations or about if they usually do what they did in your case or is it normal or standard are good ways to open a situation up. You want to get them over-confident and if possible get them talking in detail about police procedures because sometimes if they revert to the procedural answers this will irritate the judge who really is only concerned with the facts and may find any over explanation as an attempt to cover marginal conduct. You should try to flip the script to put the police officer on trial in a way that shows respect for the law and the person but implies the imperfect nature of the investigative and evidence process.

I would strongly suggest testifying in court on your own behalf for many reasons. Firstly, this shows you are serious about the incident, you are standing for your conduct and innocence. It is also a nerve racking experience so the judge will see this as a sign of your confidence in your innocence. Secondly, the crown may push very hard to get you to admit guilt or admit to part of their story, this is your chance to ensure you don’t do that. In pushing you, the crown may overstep of cause you to tear up (genuine tears only please) or show emotion, this will often work to your benefit as the judge may have sympathy and the reaction may add more credibility to your case. Thirdly, realize that the crown has many other cases and will not devote many hours to possible questions and your possible answers, chances are they will ask some standard questions and move on. Finally this is the only way to get your side of events as evidence to be weighed by the judge other than to get your witness to say it or a crown witness to say it. Getting a crown witness to contradict what they have rehearsed is easier said than done so testifying yourself is the best way. Remember, even if the judge doesn’t believe you, your testimony if believed could raise doubt and even if the judge doesn’t believe it he has to consider it at the least.

I know I mentioned at the beginning of this segment I would talk about a website to do legal research. In the interest in sticking to that I will mention CANLII. This is a website that has all the criminal, civil, tribunal and family court decisions since when they started putting them online and some even before then. It is searchable by case, keyword and other criteria so you can find decisions that support your argument, explain the charge in judicial terms from a past judges explanation and explain defenses and reasons why judges accepted them. This information can be cited in your closing remarks to support and guide the judge to agree to acquit you. Do not worry too much about being perfect when citing these cases but if you can find judges that supported the defendant in a similar situation then it is good to bring it up to the judge reviewing your case. It is also good to have the essential defenses and elements to the offence you are charged with recapped. You can find them by searching and by re-iterating these along with why your conduct did not apply to the essential element or how your conduct met a criteria of the defense against the charge the judge may find in your favour. If you were looking for more information on CanLII I may have disappointed and I didn’t touch a lot on it here however as a self-represented person you are not expected to be a legal expert so having a heavily cited closing statement might work against you with certain judges. However, it is never a bad idea to learn more than what you need. Also a trick, print many copies of your closing remarks if you plan to cite cases, provide one to the judge, crown and court administrator. This will help them follow along and also refer back later because even though they may type and have recordings your words will have power and direction.

The author is not a lawyer. This is not legal advice. It is a literal representation of the facts as they appeared to the writer from personal experience.


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