Before Mohamed Omar told a jury he had nothing to say in his defence in a second-degree murder trial, the judge presiding over his trial asked him several times if he was sure about that decision.
“I’m not suggesting that you change your mind because I have said repeatedly that is not my role. I think you understand that,” Justice Anthony Saunders told Omar while the jury was absent. “I do think it wise, though, to just emphasize to you again, that this decision of yours has consequences in terms of no one being in a position to articulate what your position is to the jury.”
Omar, representing himself at trial, remained unwavering in his decision, telling Saunders he would make no submissions to the jury because he believed the Crown had not proven his guilt beyond a reasonable doubt.
When it came time to make a closing submission to the jury, he declined. After deliberating for a little more than a day, a jury convicted Omar of the second-degree murder of 30-year-old John Dickinson late Friday afternoon.
It was an unusual trial that sparked questions about the challenges of representing oneself against serious criminal charges and the fairness of an outcome when one party is out of their depth.
It can be challenging for all involved in a trial when someone decides to represent themselves, because the system is designed to be adversarial and it functions best when a trial judge receives “zealous advocacy” on the part of defence, said Sarah Runyon, a defence lawyer with Marion and Runyon, who acted as the court’s lawyer, known as amicus, in the Omar trial.
“So when you have someone who is not necessarily educated on the law and familiar with the contours of criminal procedure, we’re not getting advocacy at its premium. And for that reason, it’s challenging, though certainly not impossible, to ensure that the court process functions as fairly as possible,” said Runyon, who could not speak on specific details of the case because of her role.
Every accused has a constitutional right to represent themselves and no court can override that decision, she said, as long as the person is fit to stand trial.
She noted a 2023 Supreme Court of Canada case emphasized the need to respect an accused’s constitutional right to conduct their own defence.
“Generally, the court must respect the strategic choices of an accused person who is fit to stand trial, even where those choices seem irrational or unwise,” says the decision dismissing an appeal by Emanuel Kahsai, who was convicted of the 2015 first-degree murders of his mother and a woman in her care after representing himself at trial.
The Calgary man discharged his lawyer and refused to retain new counsel, insisting on representing himself, according to the decision. He mostly refused to cooperate with a lawyer appointed as amicus for the trial.
“His behaviour was extremely disruptive and he was often excluded from participating in the proceedings because of it. When he did participate, he advanced no meaningful defence,” the decision says.
It’s difficult to guess at why some defendants want to represent themselves, but some people might be distrustful of the system and feel more comfortable taking matters into their own hands, Runyon said.
In cases where a person is self-represented, a judge can choose to appoint a lawyer as amicus to ensure the trial unfolds fairly. An amicus can take on some of the roles typically assigned to defence counsel, including calling evidence and providing closing submissions, although they are not a defence lawyer appointed to the accused, Runyon said. They act as the court’s lawyer.
Most legal aid programs will fund assistance for serious offences with the potential for jail time, so people in these situations can obtain legal representation “and they tend to take it, because it’s in their best interest to have a lawyer advocating for them,” said Jennifer Leitch, executive director of the National Self-Represented Litigants Project, which advocates for better resources for people who defend themselves in court.
Leitch’s work focuses more on civil cases, and particularly family law, where self-represented litigants are more common due to a lack of legal aid, Leitch said.
In populated areas, like Toronto, about 60 to 80 per cent of litigants in family law are self-represented, she said. While there’s little data tracking the number of people who represent themselves across Canada, it appears to be a growing trend, Leitch said.
Self-represented people tend to struggle with the law and the court procedures, she said.
“It’s essentially built by lawyers for lawyers. So the procedures, the substantive law, even the way of speaking in court is all kind of known to lawyers. We learn it in law school … It really is its own kind of little world. And it’s a world to which most non-lawyers don’t have access and don’t have any knowledge about,” she said.
It’s difficult for judges to navigate a case involving someone who is self-represented, because the playing field is uneven, Leitch said.
“It raises a lot of questions about fairness, and sort of how we’re reaching the decisions that we reach in court,” she said.
Criminal cases involving people representing themselves may feature an accused person who is not presenting a reasonable defence or is acting in a difficult manner, she said, pointing to a Newfoundland case in which a man accused of sexually assaulting a 17-year-old prolonged proceedings by spending considerable time with witnesses and arguing with the judge over what questions he was allowed to ask.
Stephen Hopkins called a former roommate as one of his witnesses who described him as a “rapehound,” according to a CBC report at the time, prompting a warning from the judge that the testimony he was extracting was “not at all helpful to your cause.”
Hopkins was convicted of sexual assault and designated a long-term offender.
Those self-representing in civil cases are more likely just ordinary people who can’t afford the steep costs of a lawyer, Leitch said.
She advocates for an expansion of the scope of legal aid so more people are eligible and for changing the way court systems are structured so they can be more accessible to people representing themselves.
“If a judge is able to act in a more inquisitorial fashion, there can be a rebalancing of that disparity between parties in terms of knowledge and experience,” she said.
