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| John L. Hill |
Adam Davis was charged with sexual assault and related offences involving C.M., the daughter of his former partner, L.M. The allegations covered two periods: first, when Davis lived with L.M. and C.M., while C.M. was between 15 or 16 and 18 years old; and second, about three years later, after C.M. returned to Ontario from Alberta, when Davis no longer resided with L.M. The Crown claimed the sexual activity during the second period was coerced.
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In late 2023, the Crown successfully applied to have counsel appointed under s. 486.3 of the Criminal Code to cross-examine the complainant, although the court declined to appoint an amicus curiae. The trial proceeded as scheduled despite Davis reporting illness on the first day. Paramedics attended, but he declined hospital treatment, attributing his condition to anxiety.
The four-day trial included a successful Crown application to admit Davis’s largely exculpatory police statement. Davis did not cross-examine any witnesses, including the complainant, L.M., T.M. (C.M.’s sister) or another former partner, nor did he testify or call evidence. Ultimately, the trial judge found the complainant credible, rejected that Davis’s statement raised a reasonable doubt and convicted Davis on all counts.
Davis appealed his conviction, and on appeal, he was competently represented by Toronto lawyer Paul Socka.
The Ontario Court of Appeal decision (R. v. Davis, 2026 ONCA 198) began by outlining the general principles that apply when an accused is self-represented. In such cases, the trial judge has a duty to ensure the trial is fair by offering reasonable assistance and guidance so the defence can be properly presented. This includes helping the accused understand the process, although the judge must stay neutral and cannot act as defence counsel (R. v. Richards, 2017 ONCA 424; R. v. Kahsai, 2023 SCC 20).
The level of assistance varies based on the circumstances and what is reasonable in each case. At a minimum, the judge should outline the key aspects of the trial at the start, such as the order of proceedings, the right to cross-examine witnesses, to call evidence, to testify or to choose not to testify, and to make submissions.
In certain situations, more proactive involvement may be necessary, such as identifying issues, eliciting relevant evidence or raising potential Charter concerns.
Failing to assist is not, by itself, a reason for an appeal. However, it can make the trial unfair and cause a miscarriage of justice. Courts evaluate this by looking at the overall, cumulative impact of any shortcomings in the judge’s assistance.
In accordance with the principles mentioned earlier, the Appeal Court allowed the appeal.
Unfairness began on the first day of the trial, when Davis reported feeling unwell and was assessed by paramedics but refused hospital treatment. The trial then continued that day. The trial judge made only brief inquiries into Davis’s ability to carry on and, despite the Crown’s encouragement, did not investigate the reasons for earlier adjournments caused by counsel’s illness, late disclosure and a breakdown in the solicitor-client relationship. These were not delay tactics by the accused. The judge also did not allow Davis to request an adjournment based on his medical condition.
As the trial continued, Davis received little support from the judge. Throughout the proceedings, he was given minimal assistance. At the outset, the judge failed to explain the trial process, leaving Davis unsure of his rights and how to participate effectively. During the voir dire on his police statement, Davis seemed ill and confused, yet the judge proceeded without ensuring he understood the process or could participate meaningfully.
When the Crown finished presenting its case, Davis hesitated over whether to testify or call witnesses. The judge mainly emphasized the risks of cross-examination, gave only partial guidance on the advantages of testifying and did not fully clarify how calling witnesses could support his defence. Requests to call his father and uncle were effectively denied because of timing issues, and the judge did not explore options such as subpoenas or adjournments.
The judge also offered limited guidance on preparing closing submissions. Overall, the trial judge’s support was sporadic and incomplete, leaving Davis inadequately prepared to make informed decisions about testifying, presenting evidence or responding to the Crown’s case.
The Appeal Court determined that the trial was unjust and that the unfairness constituted a miscarriage of justice (R. v. Tayo Tompouba, 2024 SCC 16). Since it was not immediately clear that Davis would be acquitted, a new trial was ordered instead of a stay of proceedings.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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