Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In R. v. Woosley, 2021 BCCA 253, June 29, 2021, the accused was convicted of offences, contrary to the Controlled Drugs and Substances Act.  He fired his counsel and represented himself.  On appeal from conviction, he argued that the trial judge failed to provide proper assistance.

The appeal was dismissed. The British Columbia Court of Appeal indicated that a trial judge “is obliged to provide a self-represented accused in a criminal case with sufficient assistance to ensure trial fairness…However, the duty owed by the judge is circumscribed.  For example, the duty is limited to what is reasonable in the circumstances and the assistance provided need not enable the accused to present the case ‘as effectively as a competent lawyer’.  Rather, trial fairness requires that a self-represented accused ‘be given a fair opportunity to present their case to the best of their ability’… In addition, the judge shares the burden of assisting a self-represented accused, to some extent, with Crown counsel.  In particular, Crown counsel should be alert to potential problems in a self-represented accused’s understanding of the process and should make suggestions as to where the court might provide assistance if it appears to be required” (at paragraphs 48 to 50).

The Court of Appeal also indicated that in “assisting a self-represented accused the judge must take care not to overstep the role of impartial arbiter and become an advocate…As Justice Griffin explained in Wyatt, ‘[a] judge presiding over a criminal trial with a self-represented accused must remain neutral and cannot become the lawyer for the accused’: at para. 12.  To that end, the judge should not assist the self-represented accused with trial tactics or provide the accused with advice on tactical decisions…On the contrary, when providing assistance in a criminal trial proceeding the judge must ‘respect an unrepresented accused’s strategy in conducting [the] defence’…In determining the extent of the duty owed in a given case, the judge must balance the need to assist, on the one hand, with the need to remain neutral, on the other” (at paragraphs 51 and 52).


The Court of Appeal concluded that “a detailed examination of the record reveals that the judge gave Mr. Woolsey the opportunity to present his case to the best of his ability in his capacity as a self-represented accused.  With the benefit of the ongoing and interactive assistance he received from the judge throughout, Mr. Woolsey was able to participate meaningfully and effectively in the trial and to bring out his defence ‘with its full force and effect’.  To the extent the judge erred by failing to alert Mr. Woolsey to the fact that the presumptive ceiling established in Jordan had been exceeded by February 10, 2018, prior to the trial’s conclusion, in the context of this trial that error was minor and it did not give rise to a miscarriage of justice” (at paragraph 88).