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Presentation - Classic Practice Problems by Presenters. R. v. Marciano
In R. v. Marciano (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal by a presenter (ie. a self-repper). The brief appeal reasons for decision manifest common and typical case-presentation problems by unrepresented litigants, in both civil and criminal cases. The fundamental problems experienced by this presenter were (1) the failure to 'keep track' of evidence to ensure that all case-required evidence is properly admitted, and (2) the failure to follow proper Browne v Dunn procedure to impeach opposing witnesses (see that topic in the /Evidence topic) - all despite both courts' apparent sensitivity to these defendant problems:[2] Ms. Marciano was self-represented at trial. On a number of occasions, she attempted to give evidence when questioning witnesses by making factual assertions that had not been presented in evidence. On other occasions she attempted to confront witnesses with the content of documentation, not previously admitted into evidence, that they could not authenticate. She ultimately chose not to testify or to present those documents into evidence. Therefore, some of the information she had referred to during trial never became part of the record on which her guilt was adjudicated. She argues that it is evident from these instances that she did not understand how evidence was to be presented. She argues that, in light of this, the trial judge was obliged to ensure that understanding, which he failed to do.
[3] We did not accept this submission because we are satisfied that the trial judge adequately explained how evidence is to be presented, and fully discharged his obligation of providing a fair trial to this unrepresented accused person. At the outset of the trial, he explained how evidence is to be presented. When Ms. Marciano attempted to present information improperly, he interjected with appropriate explanations, and when she indicated that she did not want to testify, he took steps to ensure that she understood the implications of not doing so.
[4] Without commenting on the role that her own subjective understanding played in her right to a fair trial, we note that Ms. Marciano participated in submissions before us, amply demonstrating her intelligence and her ability to understand the trial process. She has not persuaded us that she was confused at trial about how to defend herself, and that the decisions she made during trial were not tactical. The trial judge had the benefit of being present during the relevant exchanges and was in a position to assess her comprehension. It is evident that he was satisfied that she understood what he was saying. The approach he took was patient and reasonable.
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