Let me respond in the reverse order, responding to your last question first.
Professor Code and I dealt with this issue in our report. We both believe that the judge presiding has the authority to tell a lawyer that they are not capable of conducting the trial and must get another person either with them to carry the trial or to take over the case. There are two cases we are familiar with in which that has happened, and probably many more we're not familiar with. Both cases were murder cases, and superior court judges in Ontario simply told the lawyers, after some pre-hearing motions, that they were not capable, did not have the experience to conduct the trial, and had to get a senior, experienced lawyer either with them or to take it over.
Both of those two cases went to appeal. I've forgotten specifically whether that was an issue on appeal. It was not a major issue on the appeal, if it was one. But there was no comment. They brought in senior lawyers in both cases.
Professor Code and I both believe that there is the authority to do that.
There is a little more difficult issue, and that is one in which the accused insist on representing themselves and are conducting in a way that is not only totally disruptive of the trial but oftentimes very harmful to their own case. We suggest—actually, this is another recommendation in our report—that the Criminal Code perhaps be amended to take into account that case.
On the first situation, that of an inadequate lawyer, we believe the judge has the right to direct them to get another. If they refuse, I think you can simply say, “I'm not going to continue the trial with you”.
In the more difficult one, and we saw a bit of this in that case in Montreal a few years back—the professor from Concordia who represented himself and was so disruptive throughout the trial—we believe there should be a provision in the code to permit the judge to say that you cannot continue representing yourself, and to even go beyond an amicus curiae. We believe the judge has the right to appoint an amicus curiae, but we're thinking of a situation wherein you become more than an amicus curiae: you become the counsel.