r v. Canada, 2015 ONCJ 532

Morwald-Benevides v. Benevides Ontario Reports Ontario Court of Justice, Keast J. September 29, 2015 127 O.R. (3d) 165 | 2015 ONCJ 532 Case

Summary Family law — Practice — Amicus curiae — Mother in toxic and complex family law proceeding dismissing five lawyers andclearly not wanting trial to proceed — Self-represented mother emotionally unstable and unfocused at outset of trial andcollapsing in court — Mother unable to represent herself — Counsel for father seeking to be removed from record as heraccounts were in arrears and there was no reasonable prospect of payment — Trial judge appointing amicus curiae to representboth parties and to assist court on issues impacting best interests of children — Amicus not taking instructions from parties andparties unable to dismiss them — Trial judge not exceeding his jurisdiction in appointing amicus in exceptional and unusualcircumstances of this case.

The mother in a protracted and complex family law proceeding dismissed five lawyers and clearly did not want the trial to proceed. Sheclaimed to have been abused by the father and to be afraid of being in the courtroom with him. At the outset of the trial, the self-represented mother was almost hysterical, emotionally unstable and unfocused. She collapsed in court. She was denied an adjournmentas the medical evidence in support of her request was vague and an adjournment would have delayed the trial for at least a year.

The trialjudge appointed one of the mother's former lawyers as amicus curiae to represent the mother and to assist the court on issues impactingthe best interests of the children. It was made clear to the mother that amicus would not take instructions from her and that she could notdismiss him. Counsel for the father, an experienced and respected member of the bar, then sought to be removed from the record as heraccounts were in arrears and there was no reasonable prospect of payment. The trial judge appointed that lawyer as amicus curiae torepresent the father.

The Attorney General brought a motion to set aside the orders on the basis that the court had no jurisdiction to makethe orders and misapprehended the law of amicus curiae. Held, the motion should be dismissed. The trial judge had jurisdiction to make the orders appointing amicus curiae to represent the parties and to assist the court on issuesimpacting the best interests of the children, and did not exceed his jurisdiction in doing so in the exceptional and unusual circumstancesof this case.

The mother was clearly emotionally incapable of representing herself and was prepared to do whatever it took to prevent thetrial from going forward. Even an emotionally stable person could not have effectively managed the varied and complex issues in thiscase. The primary reason for the first order appointing amicus curiae was to stabilize the proceeding. Because of the sharp polarizationof the expected evidence, it was necessary that amicus play an adversarial role to properly test the evidence, so that the trial judge couldmake findings of fact and credibility.

With the father represented and the mother unrepresented, there would be a significant imbalancewherein the father's evidence would not be properly tested, whereas the mother's would. It appeared that counsel for the father had asound basis for being removed from the record. Letting her off the record would greatly destabilize the trial, especially as the father wasa foreign resident. It was doubtful that the father would be able to retain other counsel.

Not letting counsel off the record would haveforced her to proceed on a pro bono basis, which would not have been [page166] fair and which would have added another layer oftension to an already difficult trial. Amicus was appointed for the father for the purpose of stabilizing the proceeding, preventing delayand ensuring a fair trial process.

In the circumstances, notice to the Attorney General of the trial judge's intention to appoint amicus wasnot required, especially as the trial judge did not have the power to set compensation for amicus and the Attorney General's input wouldhave no impact on his decision either as to the identity of the amicus or the terms of an amicus structure. Khadr v. Canada (Attorney General), [2008] F.C.J. No. 47, 2008 FC 46, 54 C.R. (6th) 76, 322 F.T.R. 256, 166 C.R.R. (2d) 134, 2008CarswellNat 25, [2008] 3 F.C.R. 306, 2010EXP-69, 77 W.C.B. (2d) 248; LePage v. Ontario, [2006] O.J.

No. 4486, 217 O.A.C. 82, 214C.C.C. (3d) 105, 71 W.C.B. (2d) 748, , 2006 CarswellOnt 6987 (C.A.); Ontario v. Criminal Lawyers' Assn. ofOntario, [2013] 3 S.C.R. 3, [2013] S.C.J. No. 43, 2013 SCC 43, 363 D.L.R. (4th) 17, 300 C.C.C. (3d) 137, 291 C.R.R. (2d) 265, 447N.R. 111, 308 O.A.C. 347, 2013EXP-2543, J.E. 2013-1364, EYB 2013-225080, 4 C.R. (7th) 1, 108 W.C.B. (2d) 211, 2013 CarswellOnt10507; R. v. Cairenius, [2008] O.J. No. 2323, 232 C.C.C. (3d) 13, , 2008 CarswellOnt 3468, 77 W.C.B. (2d) 746(S.C.J.); R. v. Chemama, [2008] O.J.

No. 368, 2008 ONCJ 31, 172 C.R.R. (2d) 243, 76 W.C.B. (2d) 384, 2008 CarswellOnt 574; R. v.

Imona-Russel (2011), 104 O.R. (3d) 721, [2011] O.J. No. 1792, 2011 ONCA 303, 234 C.R.R. (2d) 157, 277 O.A.C. 264, 270 C.C.C.(3d) 256, 95 W.C.B. (2d) 124, 2011 CarswellOnt 2608, 86 C.R. (6th) 407, affg [2009] O.J. No. 6456, 2009 CarswellOnt 9725 (S.C.J.);R. v. Samra (1998), 41 O.R. (3d) 434, [1998] O.J. No. 3755, 112 O.A.C. 328, 129 C.C.C. (3d) 144, 39 W.C.B. (2d) 547, , 1998 CarswellOnt 3601 (C.A.); R. v. W. (P.J.), [2010] O.J. No. 4669, 2010 ONCJ 501, 90 W.C.B. (2d) 684, 2010 CarswellOnt8317, consd Other cases referred to A. (A.) v. B. (B.) (2007), 83 O.R. (3d) 561, [2007] O.J.

No. 2, 2007 ONCA 2, 278 D.L.R. (4th) 519, 220 O.A.C. 115, 150 C.R.R. (2d)110, 35 R.F.L. (6th) 1, EYB 2007-112046, 2007 CarswellOnt 2; Children's Aid Society of Algoma v. P. (D.), [2007] O.J. No. 3601, 42R.F.L. (6th) 144, 2007 CarswellOnt 5971, , 160 A.C.W.S. (3d) 608 (S.C.J.), affg [2006] O.J. No. 1878, 2006 ONCJ170, 28 R.F.L. (6th) 372, 148 A.C.W.S. (3d) 220, 2006 CarswellOnt 2974; R. v. Bjelland, [2009] 2 S.C.R. 651, [2009] S.C.J. No. 38,2009 SCC 38, [2009] 10 W.W.R. 387, 67 C.R. (6th) 201, 309 D.L.R. (4th) 257, 246 C.C.C. (3d) 129, J.E. 2009-1416, EYB 2009-162073, 391 N.R. 202, 10 Alta.

L.R. (5th) 1, 460 A.R. 230, 2009 CarswellAlta 1110; R. v. Greenspon, [2009] O.J. No. 5006, 2009CarswellOnt 7359, (S.C.J.); R. v. Imona-Russel, [2008] O.J. No. 5405, 2008 CarswellOnt 7548 (S.C.J.) Statutes referred to Canada Evidence Act, R.S.C. 1985, c. C-5, s. 38 Treaties and conventions referred to Convention on the Civil Aspects of International Child Abduction, October 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89 Authorities referred to Berg, David, "The Limits of Friendship: the Amicus Curiae in Criminal Trial Courts" (2013), 59 Crim.

L.Q. 67 [page167] Carter, Ian, "A Complicated Friendship: The Evolving Role of Amicus Curiae" (2008), 54 C.R. (6th) 89 LeSage, Patrick, and Michael Code, Report of the Review of Large and Complex Criminal Case Procedures (Toronto: Ontario Ministryof the Attorney General, 2008) Mohan, Chandra S., "The Amicus Curiae: Friends no More?" (2010), Sing. J.L.S. 352 MOTION to set aside orders appointing amicus curiae. Andrew Thomson, amicus curiae for applicant. Bonnie Oldham, amicus curiae for respondent.

Chantelle Blom, for Attorney General for Ontario. [1] KEAST J.: — This is the first known case in Canada wherein a trial judge, in a family law proceeding, has made amicus curiaeorders, appointing counsel to represent the litigant parents and to ultimately assist the court on a variety of issues impacting the bestinterests of the children. (The Ontario Court of Appeal appointed an amicus on a narrow legal issue in A. (A.) v. B. (B.) (2007), 83 O.R.(3d) 561, [2007] O.J.

No. 2, 2007 ONCA 2.) [2] This is a decision on an intervenor motion brought by the Attorney General of Ontario (hereinafter referred to as "Attorney General")to set aside the orders, on the basis this court had no jurisdiction to make such orders and misapprehended the law of amicus curiae. TheAttorney General was not present when the orders were made. The Attorney General agreed this lengthy trial would proceed and the twocounsel would be paid at the legal aid rate, without prejudice to the Attorney General's position to move to set the orders aside and anyposition taken on subsequent appeals.

The trial proper, including this motion, was conducted on the installment plan over a 23-dayperiod and is currently on reserve. [3] The Latin term "amicus curiae" translates to "friend of the court". These four words sound so simple; the application of the concept iscomplex.

[4] To appreciate the decisions I made and the position of the Attorney General on this motion, there must be a comprehensive review ofthe law of amicus curiae. 1. Amicus Curiae -- The Traditional Approach [5] In a research paper conducted by David Berg -- "The Limits of Friendship: the Amicus Curiae in Criminal Trial Courts" (2013), 59Crim. L.Q. 67 -- he indicates that current legal discussion suggests that the rule of amicus curiae has been expanding in Canadian courts.This is occurring in the context of trials [page168] that are either unusually complex or that run for a lengthy period of time.

In "TheAmicus Curiae: Friends no More?" (2010), Sing. J.L.S, Chandra S. Mohan authored a paper examining amicus curiae at the internationallevel, outlining the significant changes over time of how the concept is applied, wherein modern amicus is significantly different thanthe traditional amicus. See, also, "A Complicated Friendship: The Evolving Role of Amicus Curiae" (2008), 54 C.R. (6th) 89 by IanCarter. [6] Amicus curiae has its genesis in the 14th century. In those days, many trials were held outside in public squares.

The first amici wereactually spectator observers of those trials, who would request standing with the trial judge and who offered so-called evidence andopinions on the case that was being tried. Trial judges would often listen to whatever the townspeople had to say, sometimes under oathbut many times not. Amicus evolved to a more formal structure wherein lawyers became the amici. In the traditional model of amicus,they were not partial to any party in a trial. They were neutral. They would assist trial courts primarily on the law. They did not have asolicitor-client relationship to the parties.

They did not take instructions. Their role was at the invitation of the court to provide non-partisan information and submissions. [7] The starting point for considering the role of amicus curiae in Canadian courts were comments made by Appeal Justice MarcRosenberg in R. v. Samra (1998), (ON CA), 41 O.R. (3d) 434, [1998] O.J. No. 3755 (C.A.). Mr. Samra was self-represented at trial. However, during part of the proceeding, he was represented by legal counsel, Mr. Black. Ultimately, Mr. Black wasappointed amicus curiae and two other lawyers were also appointed to act as legal advisors.

The issue of amicus was raised on appeal.The concern was that, by appointing a former counsel as amicus for Mr. Samra, the appearance would be left that the counsel wasactually partisan and advocating for Mr. Samra. Justice Rosenberg had this to say (the underlining is my emphasis unless otherwiseindicated) [at para. 22]: Further, in my view, appointment of Mr. Black as amicus curiae in these circumstances did not mean that he would be acting "against"his former client, the appellant.

There is no precise definition of the role of amicus curiae capable of covering all possible situations inwhich the court may find it advantageous to have the advice of counsel who is not acting for the parties. It seems to me, however, thatthe role of amicus curiae in this case is similar to the description given by Ferguson J. in Grice v. The Queen (1957), (ON SC), 11 D.L.R. (2d) 699 at 702 (Ont.

H.C.J.): In its ordinary use, the term implies the friendly intervention of counsel to remind the court of some matter of law which has escaped itsnotice and in regard to which it is in danger of going wrong. [page169] [8] The concern raised was the appearance that Mr. Black would favour Mr. Samra's position. It was pointed out that, despite thisappearance, Mr. Black's role was not to simply adopt or parrot the submissions of Mr. Samra. He was to provide suggestions or giveadvice. He would not be cross-examining or examining any witnesses nor making submissions in the presence of the jury.

It wasexpected that he could provide the trial judge with legal submissions. [9] R. v. Samra stands for the principles that amicus is there at the pleasure of the court and does not act in an adversarial way for anyparty and is only there to assist the court by offering advice. Amicus cannot relinquish the appointment without the permission of thetrial judge. The accused person has no authority to appoint or discharge an amicus curiae.

The amicus is not governed by the privilegethat is central to a solicitor-client relationship. [10] However, Justice Rosenberg left the door open that there could be other situations in which the court would desire to have theadvice of counsel. [11] In R. v. Cairenius, (ON SC), [2008] O.J. No. 2323, 232 C.C.C. (3d) 13 (S.C.J.), Justice S. Bruce Durno, afterreviewing several decisions, stated the following [at para. 59]: While not exhaustive, the

summary of the various roles of amicus illustrate the difficulty in a "one size fits all" approach to theappointment of amicus and the fees to be paid. In general, the primary role of amicus is to assist the court without acting on behalf of theaccused/applicant. However, that is not always the role of amicus.

The roles vary depending on the circumstances under which theappointment is made. [12] Though Justice Durno left the door open in a general sense as to an expansion of the role of amicus, he went on to state [at para. 62]: First, amicus is generally not counsel for the accused/applicant, there is no solicitor-client relationship, and amicus does not takeinstructions from a client. The general role of amicus is to assist the court. Amicus, as a friend of the court, has an obligation to bringfacts or points of law to the court's attention that might be contrary to the interests of the applicant.

This is contrary to the traditional roleof defence counsel[.] [13] In the case of R. v. Chemama, [2008] O.J. No. 368, 2008 ONCJ 31, Justice Melvyn Green stated [at para. 36]: Apart from assisting [the court], the amicus here appointed will make him- or herself available to assist Mr. Chemama with respect toany questions of law or mixed fact and law that he may choose to put to the amicus. I stress that the amicus does not act for or takeinstructions from Mr. Chemama. Nor, of course, may Mr. Chemama discharge him or her. The amicus is a servant of the court not Mr.Chemama. Whether Mr.

Chemama chooses to . . . follow his or her advice is entirely up to Mr. Chemama. [page170]

[14] Though Justice Green states the aspects of the traditional role of amicus, you can see how the blurring of the traditional role and theadversarial aspect on behalf of an accused starts to unfold. There is now a direct focus on the amicus interacting with the accused, notsimply interacting with the court. The amicus in this case is directed to discuss with the accused any question of law or mixed fact andlaw that the accused may choose to put to the amicus. This interaction between the amicus and the accused leaves the door open for amore intrusive role of the amicus. 2.

The Evolution of Amicus Curiae [15] The most significant case that has been influential in expanding the role of amicus curiae at trial is LePage v. Ontario, [2006] O.J.No. 4486, (C.A.), per Appeal Justices Russell G. Juriansz, Michael J. Moldaver and Robert J. Sharpe. JusticeJuriansz stated on behalf of the panel [at para. 29]: Certainly, amicus curiae appointed by the court have no solicitor-client relationship with the accused, and may be described as counselto the court. However, the role of amicus curiae is not strictly defined and continues to evolve. [16] It is the view of Mr.

Berg in his research paper, supra, that this decision is the beginning of the blurring of the role of traditionalamicus and amicus acting as counsel to an accused. [17] In LePage v. Ontario, the Court of Appeal was reviewing a decision of the Ontario Review Board, specifically a disposition of theboard after a finding of not criminally responsible due to mental illness. Mr. LePage had refused to appear at an Ontario Review Boardhearing and he had refused to allow counsel to attend a hearing to represent him. His refusal to appear had happened on several occasionsover many years. The Board was advised that Mr.

LePage's decision not to co-operate with counsel was an attitudinal issue and there wasno psychiatric or physical illness to explain this position. The decision of the board that was appealed had initially been made in theabsence of Mr.

LePage's counsel. [18] The main issue on the appeal was the appellant's persistent refusal to participate in board hearings and the concern raised before theCourt of Appeal was whether or not the Board should have done more in order to meet its inquisitorial duties. (The Ontario ReviewBoard operates under an inquisitorial structure as opposed to an adversarial structure.) [19] The court pointed out that the board had a duty to elicit evidence in favour of the NCR accused whether the accused is [page171]present or not at a hearing.

The court was of the view the board failed to do its duty to elicit evidence in favour of the accused. This wasan error of law. Speaking on behalf of the panel, Appeal Justice Juriansz stated [at para. 26]: . . . I would allow the appeal and order a new hearing. While I would leave to the Board the question of how best to pursue its duty ofinquiry, it seems to me that the Board would have benefited by appointing amicus curiae at the hearing, as the Board has done in othercases[.] [20] The Attorney General objected to the board's jurisdiction to appoint amicus curiae.

Juriansz J.A. dealt with this argument as follows[at para. 29]: In my view, the words of s. 672.5(8) do not preclude the Board from appointing amicus curiae when the interests of justice so require. Iwould not adopt an unduly technical approach to the question. Certainly amicus curiae appointed by the court have no solicitor-clientrelationship with the accused, and may be described as counsel to the court. However, the role of amicus curiae is not strictly definedand continues to evolve.

One of the roles of amicus curiae has been recognized as being an assistant to the court when "there is a failureto present the issues (as, for example, where one side of the argument has not been presented to the court)" . . . When NCR accused areinvolved, there is an elevated possibility that all issues may not be presented. In my view, amicus curiae may be appointed by the Boardand assigned the role of presenting the issues favouring the accused that otherwise might not be raised. I am satisfied that an amicuscuriae who is assigned this role may be said to "act for the accused". [21] LePage v.

Ontario makes it clear that the role of amicus curiae is not strictly defined and continues to evolve. Amicus is nowexpected as part of its duty to a court or board, as in this case, to solicit information that is favourable to the accused. We now see amicusplaying a blended role. The primary duty of amicus is still to the court but in order to assist the court, amicus has to advocate the positionof the accused. This case represents the first time, at a provincial appellate level, that amicus can be said to "act for the accused". [22] The statements in LePage v.

Ontario were adopted by the Federal Court in Khadr v. Canada (Attorney General), [2008] F.C.J. No.47, 2008 FC 46. Khadr was an extradition case that dealt with ex parte hearings for disclosure under s. 38 of the Canada Evidence Act,R.S.C. 1985, c. C-5. The Attorney General for Canada argued against the appointment of an amicus curiae for Mr. Khadr and took theposition that, if such an appointment were made, it should follow the traditional model of amicus curiae. Justice Richard G.

Mosley,speaking on behalf of the court, stated the following [at paras. 31 and 32]: Counsel have drawn my attention to a number of cases in which amici have been appointed by the courts in diverse circumstances. In R.v. LePage [page172] [citation omitted], the Ontario Court of Appeal considered the authority of the mental health board to appoint anamicus to present submissions on behalf of a person found not criminally responsible by reason of mental disorder. In describing the roleof the amicus for a unanimous panel, Juriansz J.A. stated the following at paragraph 29: . . .

Similarly, I am of the view that, in the context of a

section 38 application related to a criminal proceeding, such as in the present case, anamicus appointed by the Court may present the issues favouring the person seeking disclosure of the information during the ex parteportion of the proceedings and may be said in that respect to act for the individual at that stage. But the amicus has no solicitor-clientrelationship with the individual and his or her role will be to assist the court in arriving at a just determination of the issues. [23] What we are now starting to see is amicus curiae playing a blended role. In LePage v. Ontario and Khadr v.

Canada (AttorneyGeneral), the courts are drawing a nexus between advocating for an accused and the ultimate ability to assist the court. The purpose inacting for the accused is directly related to the central value of amicus who is to assist the court. There is no solicitor-client relationship

in this blended model wherein the amicus can override instructions.

In these two cases, the courts are adapting to circumstances andcoming up with a different conduit by which they receive assistance. [24] In addition to case law, another source of influence on the expanding role of amicus curiae is the Report of the Review of Large andComplex Criminal Case Procedures (Toronto: Ontario Ministry of the Attorney General, 2008) prepared by Patrick LeSage (formerchief justice of the Superior Court of Ontario) and Michael Code (formerly the Assistant Deputy Attorney General of Ontario, aprofessor of law and currently a judge of the Ontario Superior Court of Justice).

This report was commissioned at the direction of theAttorney General in response to a variety of increasing concerns pertaining to unusually complex and lengthy criminal trials.

There aretwo particular recommendations of the report that have been influential in trial judges' broadening the scope of the traditional role ofamicus curiae. [25] Recommendation 40 states: Trial Judges should exercise their common law power to appoint amicus curiae in a long complex trial where the accused isunrepresented or chooses to be self-represented and where such appointment is likely to assist in ensuring the fairness of the trial.Wherever possible, the appointment should be made at an early stage, to prevent delays of the trial.

The amicus should generally beallowed to play an expanded role, including the examination and cross-examination of witnesses, whenever feasible. [page173] [26] Recommendation 41 states: The Federal, Provincial and Territorial Ministers of Justice should consider amendments to the Criminal Code to provide a power toappoint counsel for a self-represented accused where the accused's conduct is impeding or disrupting the trial or when the trial judge issatisfied that the accused's conduct of the case is causing an unfair trial. 3. The Supreme Court of Canada on Amicus Curiae 3.1. Ontario v.

Criminal Lawyers' Assn. of Ontario, 2013 SCC 43 , [2013] 3 S.C.R. 3, [2013] S.C.J. No. 43 [27] In this decision, the Supreme Court of Canada has pronounced on the issue of amicus curiae. Judges in three trial courts in Ontario,one in the Ontario Court of Justice and two in the Superior Court of Justice, appointed amicus curiae on behalf of three accused, not onlyto advocate on behalf of the accused but ultimately to assist the court. The Attorney General appealed these three amicus curiae orders tothe Ontario Court of Appeal, which upheld the trial judge decisions.

The Attorney General appealed to the Supreme Court of Canada.The Attorney General heavily relies on this case to argue legal errors were committed in appointing amicus curiae in this matter. Again,in order to appreciate my decision in this case, regard must be given to the three trial court decisions, the Ontario Court of Appealdecision and the Supreme Court of Canada decision. The Criminal Lawyers' Association of Ontario intervened before the Court ofAppeal and the Supreme Court of Canada, to argue the correctness of the decisions by the three trial judges. 3.2. R. v. Imona-Russel, [2009] O.J.

No. 6456, 2009 CarswellOnt 9725 (S.C.J.), per Justice Maureen D. Forestell [28] In the first case, the accused William Imona-Russel was charged with first degree murder. He retained and then discharged severalexperienced lawyers who had been retained pursuant to legal aid certificates. As a result, Legal Aid Ontario refused to fund any newlawyers. At the request of Crown counsel, Justice Frank N.

Marrocco of the Superior Court of Ontario, who was not the trial judge,made an order appointing counsel as amicus curiae to ensure that the proceedings could continue if the accused continued his serialdischarge of defence counsel. That order contemplated a limited role for amicus since the accused had re-retained one of the lawyerswhom he had previously discharged. The order set out the duties of the amicus.

It was to familiarize himself with the brief and, if theaccused discharged his lawyer or if the court so ordered a discharge, to [page174] advise the accused about points of law and legalissues, to discuss legal issues with the Crown on behalf of the accused and to speak to the court on behalf of the accused in relation tothose issues. [29] Mr. Imona-Russel continued his pattern of retaining and then discharging counsel. He ultimately applied to Justice Ian V.B.Nordheimer of the Ontario Superior Court, for state-funded counsel through a Rowbotham application. This application was refused. SeeR. v.

Imona-Russel, [2008] O.J. No. 5405, 2008 CarswellOnt 7548 (S.C.J.). His first reason was that the accused brought his inability toobtain legal aid funding on himself by repeatedly discharging counsel. Second, of interest, Justice Nordheimer was of the view thatamicus was available to assist in ensuring a fair trial. He stated the following [at para. 21]: I accept that amicus curiae is not a substitute for one's own personal counsel. The appointment of amicus curiae is not intended to act asa replacement for an accused person's own counsel.

What the appointment of amicus curiae does do, in a case where the accused personis unrepresented, is militate against any assertion of an infringement of the fair trial rights of the accused person by ensuring that there iscounsel available to assist the court and the accused person as needed. [30] Ultimately, the trial counsel of record for the accused was permitted to withdraw and then the accused brought a further Rowbothamapplication, which was now dismissed by the trial judge, Justice Maureen D. Forestell. See R. v. Imona-Russel, [2009] O.J. No. 6456,2009 CarswellOnt 9725 (S.C.J.).

The accused was no longer represented by counsel even though there was in play an amicus curiaecounsel with a very limited role. The judge raised the question of whether the role of amicus should be expanded. I might add that theoriginal order pertaining to the duties of amicus were very much in sync with the traditional definition and boundaries of amicus. Theaccused opposed the expansion of the role of amicus. He also stated to the court that he would not co-operate with the amicus.

JusticeForestell ordered the role of amicus be expanded on the following terms [at para. 13]: I ordered that amicus cross-examine witnesses, make objections to inadmissible evidence and raise legal argument on behalf of Mr.Imona Russel. Effectively, I ordered amicus to defend the case as if he had a client who was choosing to remain mute. [31] As the proceedings continued, Justice Forestell once again intervened and further expanded the role of amicus. To summarize hercomments, she indicated that in addition to cross-examining witnesses and making legal arguments and objections on behalf [page175]

of the accused, that amicus would also attempt to take instructions from the accused in the same way that he would do if he were in atraditional solicitor-client relationship and that amicus would act on behalf of the accused. The judge went on to indicate that the accusedcould not discharge amicus and could not stop the amicus from participating in the trial. 3.3. R. v. W. (P.J.), [2010] O.J. No. 4669, 2010 ONCJ 501, per Justice John D. Keast [32] In the second case, I was the trial judge wherein Mr.

W. was convicted of a number of serious indictable offences and the Crownapplied to have him declared a dangerous offender. In addition to requesting a dangerous offender designation, the Crown was requestingthat Mr. W. be sentenced to imprisonment for life. Mr. W. had dismissed two lawyers since the commencement of the proceedings andwas unrepresented. While there was a legal aid certificate outstanding, Mr. W. had been unable to find a lawyer to accept it because ofthe ongoing boycott of legal aid work by criminal defence lawyers. I was of the view that Mr.

W. was not capable of representinghimself, given the complex expert evidence that would be led on the application. I concluded the fair trial process depended on theappointment of amicus curiae. I also made the appointment to stabilize the proceedings, given the dismissal of prior counsel. He wouldnot be able to dismiss the amicus, and the amicus would proceed if Mr. W. decided to not co-operate. [33] Mr. W.'s family contacted a defence counsel who then applied to the court to be his counsel through the conduit of an amicus curiaeorder.

This counsel made it clear she was not prepared to engage in the case at the legal aid rate. In appointing counsel as amicus, Iexpected her to establish a relationship if possible with Mr. W., with the ability to override Mr. W.'s instructions in his best interest. 3.4. R. v. Greenspon, (ON SC), [2009] O.J. No. 5006, 2009 CarswellOnt 7359 (S.C.J.), per Justice Lynn D.Ratushny [34] In the third case, Mr. Greenspon was defence counsel acting on behalf of the accused who was charged, along with five others, withfirst degree murder. There were several adjournments caused by the accused changing counsel.

At the time that the trial date was finallyset, the matter was before the court for over five years. Some two and a half months before trial, the accused discharged Mr. Greenspon,which threatened to derail the trial. Justice Ratushny appointed Mr. Greenspon as amicus curiae. [page176] [35] In addition to making the amicus orders, the three judges also set rates of compensation that were above the legal aid rate. 3.5. R. v. Imona-Russel (2011), 2011 ONCA 303 , 104 O.R. (3d) 721, [2011] O.J. No. 1792 (C.A.), per Appeal Justices MarcRosenberg, Stephen T. Goudge and Robert P.

Armstrong [36] The primary issue in the appeal by the Attorney General was not the jurisdiction of the three judges to make amicus curiae orders.Instead, the focus was on whether the judges had the jurisdiction to fix the rates of compensation. [37] Though the issue before the Court of Appeal was not the jurisdiction of the three trial judges to make amicus curiae appointments,the court did in lengthy reasons confirm that Superior Court judges have the power to make amicus curiae appointments because of theinherent jurisdiction of that court; and the Ontario Court of Justice, as a statutory court, also has the power to make amicus curiaeappointments and to set the terms and conditions of those appointments, based on the court's implied power to control its own processes. [38] The Court of Appeal upheld the three trial judges in relation to their compensation orders. 4.

Ontario v. Criminal Lawyers' Assn. of Ontario, supra [39] The Attorney General appealed to the Supreme Court of Canada. The issue of the jurisdiction of the three trial judges to make theamicus orders in the first place was not appealed. The only issue appealed was the jurisdiction to make orders for the compensation ofamicus.

Though the Attorney General did not appeal the jurisdiction to make the amicus orders in the first place, two of the provincialintervenors challenged the actual amicus orders. [40] In a five to four decision, the Supreme Court concluded that trial judges do not have the jurisdiction to set compensation rates foramicus curiae appointments. The central feature of the decision was that each branch of our constitutional democracy (legislative,executive and judicial) respect the boundaries of each other. Each branch will be unable to fulfill its role if it is unduly interfered with bythe others.

It is fundamental to the working government as a whole that all these parts play their proper role and show deference to theactivity and sphere of the other [at paras. 83 and 84]: While the rule of law requires an effective justice system with independent and impartial decision makers, it does not exist independentlyof financial constraints and the financial choices of the executive and legislature.

Furthermore, in our system of parliamentarydemocracy, an inherent and [page177] inalienable right to fix a trial participant's compensation oversteps the responsibilities of thejudiciary and blurs the roles and public accountability of the three separate branches of government. In my view, such a state of affairswould imperil the judicial process; judicial orders fixing the expenditures of public funds put public confidence in the judiciary at risk. . . . the ability to set rates of compensation for amici does not form part of the inherent jurisdiction of a Superior Court.

Given thisconclusion, it follows that the ability to set rates of compensation for amici does not form part of the implicit powers of a statutory courtto function as a court of law. [41] Although the court was sharply divided on the issue of trial judges' jurisdiction to set compensation rates, it was not divided on theissue of trial judges' jurisdiction to make amicus orders in the first place.

The court was unanimous in setting out the features of amicusand providing guidelines and concerns for trial judges and provincial appellate courts. [42] The court outlined the features of amicus [at paras. 87, 88, 108-10, 114-19 and 121]: Accordingly, courts may appoint an amicus only when they require his or her assistance to ensure the orderly conduct of proceedings andthe availability of relevant submissions. And once appointed, the amicus is bound by a duty of loyalty and integrity to the court and not

to any of the parties to the proceedings. It is uncontested in this case that trial judges have jurisdiction to appoint an amicus curiae and to determine the role of the amicus in theproceedings before them. It is uncontested as well that the Attorney General who has conduct of the prosecution -- in this case theAttorney General of Ontario -- is then obliged to remunerate the amicus appropriately[.] . . . . . Exceptionally, trial judges may appoint an amicus curiae to ensure the orderly conduct of proceedings and the availability of relevantsubmissions.

They should not be required to decide contested, uncertain, complex and important points of law or of fact without thebenefit of thorough submissions. Courts are empowered in some instances by specific statutory provisions, such as s. 486.3 of the Criminal Code, R.S.C. 1985, c. C-46, toappoint counsel for particular purposes. They may also order the appointment of defence counsel pursuant to a Rowbotham applicationas a remedy under s. 24(1) of the Charter. The appointment of amici curiae derives, however, from different sources and should be kept conceptually distinct. . . . . .

I think it useful nonetheless to provide some guidance regarding the circumstances in which an amicus appointment is appropriate. Anamicus curiae may play many roles but it is important to recognize at the outset that an amicus is not a defence counsel. Once clothedwith all the duties and responsibilities of defence counsel, the amicus can no longer properly be called a "friend of the court". [page178] The discretion of trial judges to appoint an amicus is not unrestricted.

The power to appoint should be exercised sparingly and withcaution, and appointments should be in response to specific and exceptional circumstances. Trial judges must not externalize their duty toensure a fair trial for unrepresented accused by shifting the responsibility to amici curiae who, albeit under a different name, assume arole nearly identical to that of defence counsel. An accused is entitled to forego the benefit of counsel and elect instead to proceed unrepresented.

An amicus should not be appointed toimpose counsel on an unwilling accused or permit an accused to circumvent the established procedure for obtaining government-fundedcounsel. In the vast majority of cases, as long as a trial judge provides guidance to an unrepresented accused, a fair and orderly trial canbe ensured without the assistance of an amicus. Such is the case even if the accused's defence is not then quite as effective as it wouldhave been had the accused retained competent defence counsel. If appointed, an amicus may be asked to play a wide variety of roles: R. v.

Cairenius (2008), (ON SC), 232 C.C.C.(3d) 13 (Ont. S.C.J.), at paras. 52-59, per Durno J. There is, as Rosenberg J.A. pointed out in R. v. Samra (1998), (ONCA), 41 O.R. (3d) 434 (C.A.), at p. 444, "no precise definition of the role of amicus curiae capable of covering all possible situations inwhich the court may find it advantageous to have the advice of counsel who is not acting for the parties". Regardless of what responsibilities the amicus is given, however, his defining characteristic remains his duty to the court and to ensuringthe proper administration of justice.

An amicus's sole "client" is the court, and an amicus's purpose is to provide the court with aperspective it feels it is lacking -- all that an amicus does is in the public interest for the benefit of the court in the correct disposal of thecase: R. v. Lee, (NWT SC), 125 C.C.C. (3d) 363 (N.W.T.S.C.), at para. 12. While the amicus may, in some circumstances, be called upon to "act" for an accused by adopting and defending the accused's position,his role is fundamentally distinct from that of a defence counsel who represents an accused person either pursuant to a legal aidcertificate or under a Rowbotham order.

Furthering the best interests of the accused may be an incidental result, but is not the purpose, ofan amicus appointment. . . . . . Where a trial judge appoints an amicus, these distinctions between an amicus and court-appointed defence counsel should be made clearboth to the amicus and to the accused. The blurring of the line between the two roles in the present cases causes me some concern;however, as pointed out, that is not the issue before us. [Italics in original] 5. A

Summary of the Features of Amicus Curiae [43] The following is a

summary of the features of amicus curiae extracted primarily from the Supreme Court of Canada and provincialand federal appellate courts: [page179] (

a) The ultimate and primary purpose is to provide assistance to trial judges on issues of law or facts, wherein the trial judge is of theview that an effective, fair and just decision cannot be made without such assistance. (

b) Such orders are made to ensure a fair trial process, the orderly conduct of proceedings and to ensure the proper administration ofjustice.

(

c) It is usually driven by the initiative of the judge, but may also occur at the request of one or more of the parties. (

d) There are many scenarios to which amicus may apply. The class of scenarios is not closed. There is no "one size fits all" standard. (

e) The power to appoint has a high threshold. Such should be exercised sparingly and with caution. Appointments should be made in response to specific and exceptional circumstances. A judge must not externalize his or her duty to ensure a fair trial of unrepresented accused by shifting the responsibility to amicus curiae , who under a different name assume a role nearly identical to that of defence counsel. (

f) The judge decides the terms and conditions of the role, which may vary widely. (

g) Caution is to be exercised if an appointment mirrors the role of a defence counsel. The primary purpose must still be to assist the court, though there may be an incidental beneficial result for a party. In such a case, clear directions must be given to the party and amicus . (

h) There is no solicitor-client privilege between an amicus and a party. (

i) Only the judge can dismiss an amicus , not the party. (

j) An amicus may override so-called instructions or directions from a party. An amicus may operate if the party does not co-operate or remains mute or chooses not to attend court. (

k) Once an amicus order is made, the Attorney General is obligated to compensate the amicus . Although amicus may often be paid by the legal aid fund, that is not always necessarily so. There should be a negotiation process between the Attorney General and an intended amicus as to compensation. The judge may play a role in this process that is persuasive only. If the judge is not satisfied as to the [page180] compensation issue, the judge ought to consider the issuing of a stay of proceeding until the compensation issue can be resolved. 6.

History and Reasons for the Amicus Orders [ 44 ] The reasons on the record for the amicus orders require supplementary comments. I was in a crisis situation during trial, wherein rapid decisions had to be made. In the circumstances, it was not feasible to provide full reasons. [ 45 ] This was a lengthy proceeding. The application was filed on May 15, 2012. The interim stage was fractious. There were several contested motions and two appeals of motion decisions. For example, there were 11 court appearances just to deal with issues of interim access.

There were several settlement conferences, more than usual, with aggressive judicial intervention, in an effort to settle the case. In reviewing the continuing record at the trial management conference stage, and information gleaned at the trial management conference, it was evident that the evidence would be highly polarized and conflictual. Vigorous advocacy would be required to sort out the facts from the hardened positions of the parties. The trial lasted 23 days, finishing in late June 2015. The decision on the trial proper is on reserve. [ 46 ] This married couple have three children.

The father is a resident and citizen of the country of Bermuda. The mother is Canadian and resides in Parry Sound, Ontario. For a period of time, the family resided in Bermuda. [ 47 ] This case has generated many complex issues. One issue dealt with access of the father in Bermuda. The mother's position is the children would be abducted. Her sources of materials would indicate that Bermuda courts have a poor compliance with the Hague Convention (Hague Convention on the Civil Aspects of International Child Abduction , October 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89).

In addition to Bermuda case law, there was a congressional report from the American Congress in Washington, D.C.; and further documents from the United Kingdom Parliament in London, expressing concerns about Hague Convention compliance. [ 48 ] The mother alleged domestic violence against herself, often in the presence of the children. She also alleged violence directly to the children. Her position was no access to the father or as a fallback supervised access only.

The mother was strident as to her position as to no access in Bermuda. [ 49 ] The father alleged parental alienation, that the mother had conditioned the children against him.

During the pre-trial stage and after a review of the continuing record, which counsel [page181] agreed would be filed in the trial proper, it became apparent to me there were clinical issues with the parents and children; and that a psychological assessment was indicated, which I eventually ordered after several days of trial. [ 50 ] Most of the pre-trial and during trial access by the father was highly contentious and required legal representation and judicial intervention to resolve.

For example, when the father arrived in Canada for one block of time of access, he was faced with a last-minute motion to stop the access. For most of the access, last-minute terms and conditions were being sought by the mother before access could proceed. This type of conduct inflamed this proceeding. He was coming to Canada under considerable financial expenses and had to fight for the access to even go ahead.

Further, when he was in Canada during the blocks of time for the trial, there was constant skirmishing over the particulars of access while the trial was going on. [ 51 ] The child support issues were complicated. There was a gross-up issue because of the different tax treatment of the father's income in Bermuda compared to Canada. There was a retroactive child support issue. There was an issue of a reduction of child support because of the high cost of the father exercising access in Canada. [ 52 ] Before the trial commenced, I had identified some logistical trial issues.

The mother had alleged that she was deeply fearful of the father and did not want to be in a courtroom with him and certainly did not want to give evidence with him in the courtroom. It was considered that the mother might provide evidence from her residence or lawyer's office via a video feed with the courtroom or in an

isolated room in the court house. [ 53 ] There were potential logistical issues involving Bermuda evidence and the setting up of a video feed from either a courtroom or other facility in Bermuda. [ 54 ] One of the issues identified at the trial management conference was some form of integrating the courts in Bermuda with this court. This would involve an in-time video feed with a judge in Bermuda or it might involve a mirroring order in Bermuda that was accepted by the Bermuda courts.

The purpose of this was to strengthen compliance with the Hague Convention in Bermuda, if any issues arose. [ 55 ] The first scheduled day of the trial was April 11, 2014. The first series of dates were scheduled months earlier. At the outset of the trial, the case was almost two years old. [ 56 ] The events of the week before the trial influenced my decision to appoint amicus curiae for the mother. She brought two motions to adjourn the trial. She was represented by [page182] counsel. The first was a recusal motion that, if I granted, would have had the effect of adjourning the trial.

I dismissed the motion. [ 57 ] The second motion was to adjourn the trial on the basis of child support arrears not being paid. She brought this motion just before trial although the arrears had been outstanding for quite some time. The timing of that motion concerned me. I dismissed the motion. If I had granted the motion, the effect would have been an indeterminate delay of the trial.

The mother was not prepared to commit to specific future trial dates, taking the position she had no idea when the arrears would be paid. [ 58 ] Days before trial, the mother immediately appealed both decisions to the Superior Court. She also requested the Superior Court stay both motion decisions, and to stay the trial pending the completion of the appeal process. The Superior Court dismissed her motion to stay the decisions and to have the appeals heard before the trial commenced. [ 59 ] During the lengthy pre-trial stage, the mother on several occasions sought to adjourn motions and conferences.

Before the trial even commenced, a pattern had developed by the mother of seeking to delay the proceedings. Before the trial commenced, it was apparent to me, the mother did not want the trial to proceed. [ 60 ] The trial opened with the mother self-represented. She was represented by counsel on the two pre-trial motions and appeal, but that was a limited retainer, not a retainer for trial. In the previous almost two years, the mother had dismissed five lawyers. The mother brought a motion at the commencement of trial for an adjournment on the basis of medical grounds.

She tendered two medical letters from her family physician. [ 61 ] In the first hour of the trial, it was apparent to me the mother's behaviour was bordering on hysterical. She was emotional and hyper and had a difficult time focusing. Fuelling this, her mother was in the courtroom and was emotionally distraught. [ 62 ] Later in the morning, the mother collapsed in the courtroom. The clerk called an ambulance and she was rushed to hospital. She did not re-attend court that day. Court was recessed to 2:00 p.m.

In the afternoon, her brother attended court on her behalf. [ 63 ] Over the lunch hour on the first day of trial, I made my decision to appoint an amicus curiae on behalf of the mother. It was clear to me that she was incapable of self-representing. The trial was destabilized and something had to be done to salvage the situation. I requested the attendance of Andrew Thomson, [page183] a local barrister and solicitor, to attend the afternoon session of the court. Mr. Thomson is a seasoned litigator, well-regarded and well-respected by the bench.

He was a previous counsel to the mother and had extensive knowledge of the file. Mr. Thomson, somewhat reluctantly, agreed to the amicus appointment. [ 64 ] I was not prepared to adjourn the trial based on the two medical letters. I requested the attendance of the physician on the next day of the trial. The physician was extensively questioned. The physician recommended an adjournment of the trial based on alleged medical and mental/emotional reasons. I dismissed the motion to adjourn the trial. The medical evidence was vague.

I questioned whether or not the mother's medical and emotional circumstances were any different than other litigants who come into the courtrooms. Further, the doctor was unable to give a timeline when the mother would be fit enough to go through a trial. The mother's position, if accepted, would have led to an indeterminate and lengthy adjournment of the trial. [ 65 ] In this jurisdiction, if a trial is lost, a new trial date cannot be accommodated for at least six months, longer if the trial requires multiple days such as this one.

Had I granted the motion, since neither the doctor nor the mother knew when she might be fit enough for a trial, a new trial date could not have been set at that time. So the court would have to wait until the mother was medically ready for trial before a new trial date could be set.

This would have pushed the timelines out for a year or more. [ 66 ] Based on my review of the continuing record in preparation for the trial management conference and what was learned at the trial management conference, I considered this to be a high conflict and particularly toxic case, which would constitute some 1 per cent of our volume of cases. This view was reinforced by my observations of the mother's demeanour in the courtroom in the week prior to the trial, when she brought the motions to adjourn.

Although represented by counsel, she was visibly emotionally distraught. [ 67 ] The primary reason for appointing amicus curiae was to stabilize the proceeding. Her emotionality was a significant barrier for her to self-represent. She was unable to focus and appeared disoriented. Her emotional presentation was so severe that she could not have been managed in a courtroom. In the two years prior to trial, she repeatedly tried to adjourn conferences and motions.

Given the events of the week before trial and the events on the first day of trial, I was satisfied the mother [page184] was prepared to do whatever it took to prevent a trial from proceeding or being completed. [ 68 ] Another factor in making the appointment was the spectre of domestic violence and the impact it may have had on the mother. In her affidavits in the continuing record, and in particular, the comments contained in an e-mail that was filed with the court in the week before the trial, I was struck by the intensity and desperation as to her deeply rooted fear of the father.

Although these allegations at the time were unproven, her strongly held belief that she was severely abused was contributing to her emotionally unstable presentation. Whether there was any basis for these views is irrelevant; her feelings were genuine and valid to her and strongly perceived. Being alone

in the courtroom with the father was beyond what she could bear. I needed to calm her down so I could effectively deal with the evidence and issues and ultimately the best interests of the children. She needed a buffer. Amicus curiae was the solution. [ 69 ] The issues in this case were varied and most complex, as already pointed out. Even an emotionally stable person could not have effectively managed them. I would have been left in a significant deficit position to adjudicate on the best interests of the children. [ 70 ] I needed assistance in a significant way.

This case was not remotely close to the garden variety case as mentioned by the Supreme Court of Canada, wherein an amicus order should not be routinely made. Because of the sharp polarization and conflict of the expected evidence, I wanted amicus to play an adversarial role to properly test the evidence, so I could make findings of facts and credibility -- which would then allow me to effectively adjudicate on the best interest test. [ 71 ] Aside from the complexities of findings of facts and credibility, this case had complex legal issues.

As a matter of law, what is required to terminate access to a parent or to direct permanent supervision of access? What are the legal requirements for parental alienation? What is the law of Bermuda as such relates to an application in the Bermuda courts under the Hague Convention? What are the legal principles for grossing up child support because of different tax treatments of income in different jurisdictions? What are the legal principles for the deductions from child support of travel expenses to facilitate access?

The mother would not have been able to assist me, even if she was emotionally stable. [ 72 ] I knew at the time I made the amicus order that it was likely I would be ordering a psychological assessment.

The [page185] mother was strongly against this and would not appreciate the legal principles in settling the terms of an order or the requirements in the order by a psychologist. [ 73 ] With the father represented and the mother now unrepresented, there would be a significant imbalance wherein the father's evidence would not be properly tested, whereas the mother's would, leaving me in a deficit position on the material facts and legal issues. [ 74 ] I am satisfied that the high threshold required to make an amicus curiae order has been met.

This case constitutes exceptional circumstances. [ 75 ] Once having made the order, it was made clear to the mother she could not dismiss Mr. Thomson, as she had done with five other lawyers. She was also told that Mr. Thomson was not obligated to follow her instructions or directions. He would make the final decision how to conduct the case. He would attempt to elicit her co-operation, but could proceed without such. Also, he could proceed even if she did not attend court. [ 76 ] It was suggested that I could have adjourned the trial to allow the mother to apply for legal aid.

This was not an appropriate course of action, for the mother would have finally achieved what she had been seeking all along, which was an adjournment of the trial. Such course of action would have caused lengthy delay. If she did qualify for legal aid, I would have to wait until she selected counsel before setting further trial dates. Since she already dismissed five lawyers, she would have great difficulty finding new counsel, considering the small size of the bar.

Since she wanted the trial to be adjourned in the first place, this would have given her a ready-made excuse to continue the delay. [ 77 ] And if she did not qualify for legal aid, then what was I to do? I knew Mr. Thomson was prepared to accept legal aid, at least in the first instance, subject to further discussions with the Attorney General. He was prepared to stay involved even if those further fee discussions were not successful. With amicus curiae now involved, the trial could proceed. [ 78 ] In relation to the amicus order for the father, I was suddenly faced with an unusual situation.

Prior to the date of the order, the father had a stable solicitor-client relationship with Ms. Oldham, who had been his counsel from the beginning. On June 11, 2014, Ms. Oldham requested a meeting in chambers, which included Mr. Thomson. [ 79 ] She advised she was bringing a motion to be removed from the record. Her accounts, which were substantial, were in [page186] arrears and there was no reasonable prospect of payment. Further, because of the psychological assessment, which the father was against, and other factors, several more days were added to the trial.

This had a substantial impact on the fee expectations, wherein the father was unable to meet a significant fee increase. [ 80 ] I was blindsided by this turn of events and was caught between the proverbial "rock and a hard place". My first inclination was to deny any such motion. Some judicial officers in these circumstances may not have allowed her off the record. I had to consider the culture in Parry Sound, which is a single-judge location for both the Ontario Court of Justice and the Superior Court of Justice, which has a small bar. Ms.

Oldham is a well-respected litigator, a leader in the local bar and known to both courts for her involvement and co- operation in the effective and smooth administration of justice. She takes her role as an officer of the court seriously. [ 81 ] It appeared that she had a sound basis for being removed from the record, given the substantial increase in the expected trial time, which she could not have reasonably expected to know when discussing fee arrangements with her client. [ 82 ] Letting her off the record would greatly destabilize the trial especially with her client being a foreign resident.

It was doubtful that he could carry on litigation of this magnitude from a foreign country. Given what I learned about his finances, it was doubtful that he would be able to retain another counsel. [ 83 ] Not letting Ms. Oldham off the record would have forced her to proceed on a pro bono basis. Conducting a matter of this magnitude on a pro bono basis would not have been fair and would have added another layer of tension to an already difficult trial. Given the role Ms.

Oldham plays in the local administration of justice, I was not prepared to do this. [ 84 ] Adjourning to ascertain whether the father qualified for legal aid was not an option. I was confident he would not qualify. His income was too high, he owned property in Bermuda and he had no legal status in Canada. [ 85 ] The decision to appoint amicus for the father was influenced by the reasons to appoint amicus for the mother. The two are

connected. I could not consider the father's situation independent of the mother. Without counsel for the father, there would have been an imbalance in testing the evidence in the way I required. A lopsided situation, whether it is from the mother's perspective or the father's, would not have been of assistance to me. Although the father was being benefited, there is a nexus between that benefit and the assistance I required. [page187] [ 86 ] So I focused on my needs, already articulated, which have not changed.

Though the father did not have the emotional volatility of the mother, he could not have self-represented on a complex case such as this. I needed the adversarial system in order to properly test the evidence, not only from the perspective of the mother, but also from the perspective of the father. Further, I needed a counsel for the father to deal with the courts in Bermuda. [ 87 ] The decision to appoint amicus for the father was for the purpose of stabilizing the proceeding, preventing delay and ensuring a fair trial process. 7. The Position of the Attorney General 7.1.

Amicus as defence counsel [ 88 ] The Attorney General conceded that a judge in a family trial has the jurisdiction to appoint amicus curiae . However, the Attorney General submits that I exceeded that jurisdiction. Further, it was submitted the three trial judges in the Criminal Lawyers case would not be able to make their amicus orders today. [ 89 ] The basis of the argument is these orders were analogous to appointing amicus substantially in the role of defence counsel, which is contrary to the ratio of Criminal Lawyers .

The more an amicus order mirrors traditional defence counsel, the less amicus is a friend of the court. A trial court does not have jurisdiction to, in essence, appoint a defence counsel under the guise of an amicus structure. [ 90 ] I disagree. The issue of jurisdiction to make the orders was not before the Supreme Court. Justice Morris J. Fish, in particular, made this clear. The court did not set aside the amicus orders made by the three trial judges. The ratio of Criminal Lawyers is that trial judges do not have the jurisdiction to make orders setting compensation rates.

The Supreme Court did not say that an order that mirrors defence counsel exceeds the jurisdiction. The court did not establish a "one size fits all" standard. Whether an amicus order is appropriate must be determined on a case-by-case basis. [ 91 ] What the Supreme Court was doing was establishing guidelines and concerns for consideration by trial judges. In particular, if a trial judge saw amicus as a traditional counsel, there is a caution and wariness in such a blended role. The appointment of amicus cannot have as its primary purpose as a substitute for traditional counsel.

If an order mirrors traditional [page188] counsel, then the primary purpose of such an order must still be the assistance required by the court. [ 92 ] I will repeat the statement of Justice Fish, for I believe it goes to the heart of this issue [at para. 119]: While the amicus may, in some circumstances, be called upon to "act" for an accused by adopting and defending the accused's position, his role is fundamentally distinct from that of a defence counsel who represents an accused person either pursuant to a legal aid certificate or under a Rowbotham order.

Furthering the best interests of the accused may be an incidental result , but is not the purpose , of an amicus appointment. [Italics in original] [ 93 ] This can be a difficult distinction to grasp in a theoretical vacuum. I will review how it relates to this case and also to the R. v. W. (P.J.) case and Justice Forestell's Imona-Russel case. [ 94 ] It is accurate that I wanted Mr. Thomson and Ms. Oldham to mirror many of the features of traditional counsel.

Only in an adversarial setting could I expect to test the highly conflictual evidence, which would allow me to tease out the material facts and credibility, so I would have clarity to connect the material facts to the best interest test for the children.

I was satisfied by the end of the trial that the vigorous cross-examinations conducted have allowed me to make findings that are crucial to the evaluation of the best interest test. [ 95 ] The Attorney General over-emphasizes the similarities of amicus with traditional counsel and under-emphasizes the material differences and the significant impact those differences had on this case. [ 96 ] The inability to dismiss Mr. Thomson had a significant impact on the potential emotional volatility of the mother. Her dismissal of five counsel had created chaos in the history of this case.

Once that right was taken away, this proceeding stabilized. She calmed down significantly. [ 97 ] Further, removing from her control the ability to give instructions and directions had a material impact on the flow of the trial. Mr. Thomson, not the mother, would make the final decisions. From my observations during the trial, the mother and Mr. Thomson had a good working relationship and she was overall co-operative with him. The knowledge that she could not override him was a crucial factor in co-operating with him. Except on a few occasions, there was no tension between the mother and Mr. Thomson.

The close co-operative relationship between the two allowed Mr. Thomson to fully utilize his cross-examination skills, which were required to properly test the father's evidence. [page189] [ 98 ] These two distinctions from traditional counsel had a pivotal impact in focusing on the issues. Had Mr. Thomson been traditional counsel, this would not have happened. Keep in mind that she already dismissed him once. The distinct tools of amicus have made the difference between an out-of-control trial and one that was under control. [ 99 ] There were two occasions when Mr.

Thomson did not follow the so-called instructions of the mother. First, when I indicated I

wanted a psychological assessment, the mother instructed Mr. Thomson to resist. The initiative for the assessment was coming from myself. As a result, because Mr. Thomson considered his overriding duty was to the court, he did not follow her directions to resist the assessment. Further, when I was considering an amicus curiae order for the father, the mother instructed Mr. Thomson to resist my initiative.

He did not, because he thought this would be conflictual with the desire of the court. [ 100 ] There must always be a nexus between the role of traditional counsel features and the ultimate purpose of assisting the court. The benefits to the mother of traditional counsel are incidental to the primary purpose of amicus , which is to assist the court. As the trial judge, I required the mother's position to be fully and effectively explained, including through cross-examination, so I might then make decisions in relation to the best interests of the children. [ 101 ] In R. v. W. (P.J.) , a similar result occurred.

Mr. W.'s history of dismissing counsel came to an end when he could not dismiss the amicus counsel. When he submitted control to the amicus counsel, he co-operated completely. What ensued was a vigorously contested 18-day hearing. The accused unquestionably benefited considerably, but that only happened because of the tools provided to amicus.

The accused benefited by the traditional counsel features, but the primary benefit was to the court -- the controlling mechanism of amicus , coupled with a traditional approach in an adversarial setting, allowed the court access to tested evidence, so an effective, just and fair decision could be made. This was a high-stakes case wherein the Crown was requesting life imprisonment. [ 102 ] In Imona-Russel , a murder charge, Justice Forestell had to deal with a fluid and changing situation during the course of the trial.

She had to make adjustments to the original amicus order, to provide amicus with more tools ultimately to assist her in the management of the trial. Although the accused appears to have benefited, the primary purpose behind changes in the amicus order were to assist the trial judge, by allowing the evidence [page190] to be more effectively tested. Amicus was the conduit through which the trial judge benefited. 7.2. Notice [ 103 ] Notice was not provided to the Attorney General of my intention to appoint amicus counsel.

The Attorney General submits it was deprived of its ability to make submissions on the boundaries of any amicus curiae order, to identify the individual who might become the amicus and to have some input as to the terms and conditions of the amicus structure. The Attorney General has a roster of counsel that is prepared to accept amicus appointments at the legal aid rate. [ 104 ] I had to balance the impact of a delay of the proceeding against the value of what I might learn from the Attorney General.

Providing notice and setting up a hearing would have caused disruption to an already fragile trial and cause a significant delay. The mother would have been content with a significant delay, because this is what she wanted all along. The time period pending a hearing on amicus could have impacted the mother's emotional volatility.

She was already severely upset; I was not going to risk any further deterioration of her state of mind, pending a hearing to allow the Attorney General to give submissions. [ 105 ] Prior to Criminal Lawyers , notice was particularly important because the compensation rate was vital to any such appointment. The Attorney General had to be involved on that issue.

But since Criminal Lawyers , with trial courts no longer having the power to set compensation, there will be fact situations such as this, where input from the Attorney General will not have an impact on my decision either as to the identity of the amicus or the terms of an amicus structure. [ 106 ] Mr. Thomson had already agreed to accept a legal aid rate, which I knew would not be objectionable to the Attorney General. It probably would have suggested I accept one of its roster lawyers, but I would have refused such suggestion. The appointment of Mr.

Thomson would involve a smooth transition from the mother being unrepresented to being represented, because of his thorough knowledge of the file. There would have been no delay with the appointment of Mr. Thomson. [ 107 ] As to the structure of any amicus appointment, my mind was already made up as to what I required. I was well-aware of the Criminal Lawyers case and was aware of the Attorney General's

interpretation of the case, with which I disagreed. The Attorney General did not have a feel for this case and I knew [page191] they could not offer me sound submissions as to how I should have handled the problem with which I was faced. [ 108 ] During argument, I asked Attorney General counsel what I should have done to manage these problems. Counsel was reluctant to respond, stating I was in a better position to understand what assistance I required. She did offer a tepid response that I could have considered amicus for the sole purpose of cross-examining the father.

In my view, such an approach was simplistic given the multitude of factual and legal issues. Besides, that would not have kept the mother's emotional volatility under control. [ 109 ] I also inquired of counsel what I should have done on R. v. W. (P.J.) and what the other two judges should have done in their cases. Again, counsel was most reluctant to respond, indicating that the judges had a better appreciation of what they required. She did suggest that I should have considered a limited role for amicus in cross-examining the Crown psychiatrist. Again, this would not have gone nearly far enough.

In order to prepare for cross-examination of the Crown psychiatrist, any such counsel would have to retain his or her own psychiatrist and even a psychologist, which is what amicus counsel did in R. v. W. (P.J.) . Further, a dangerous offender application is much different than a criminal charge. The evidence involved information over a period of 25 years. The response to that required several witnesses. Mr.

W. could not have possibly navigated such a complex situation. [ 110 ] If the three trial judges in Criminal Lawyers are being criticized for what they did, then the response from the Attorney General should be a meaningful and concrete alternative as to what should have transpired in those three trials. This was not forthcoming. There was criticism without offering solutions. 7.3. Encroachment on the province's role in the administration of justice [ 111 ] Counsel submits there are cost consequences of amicus curiae orders, for which the government must pay.

The executive has already established the funding of the administration of justice, including programs for the funding of defence counsel, such as legal aid, and other select circumstances wherein defence counsel are compensated. Judicial orders such as amicus curiae , cross the line between the judicial function and executive function, because the funding of those orders plays havoc with those programs, which do not take into

account these extra cost consequences. It is the executive, not the judiciary, that has the [page192] responsibility for publicaccountability of general revenue. The judiciary is interfering with the executive function. [112] This argument goes to the core of the Supreme Court decision in Criminal Lawyers. This is the reason why the majority took awaythe judicial role in setting compensation rates for amicus curiae counsel. [113] However, the court recognized there will be valid circumstances in which amicus curiae orders must be made. The executive mustpick up the cost consequences of those orders.

In order to safeguard against judicial encroachment of the executive function, theSupreme Court has established a high threshold before amicus curiae orders can be validly made. The court wants to minimize theencroachment on the executive function. [114] The court expressed concern that amicus curiae orders do not become a routine substitute for the masses of unrepresented litigantswho otherwise would not qualify for legal aid or other government funding programs.

However, the court does accept there will belimited encroachment of the judicial function on the executive function, if the high threshold for amicus orders is established. As I havealready pointed out, for the reasons given, the high threshold has been met and this is a case of exceptional and unusual circumstances. 7.4. Concerns of the Supreme Court [115] Amicus appointments that overlap with the traditional role of counsel are "fraught with complexity and bristle[s] with danger"(para. 50 of Criminal Lawyers).

There is a potential conflict of interest between the duty to the court and the relationship with the party,when the duty to the court is paramount. The bedrock principle of solicitor-client privilege is muddied. The accused has a constitutionalright to defend himself or herself, and amicus appointments interfere with this. [116] The Supreme Court did not say the existence of these concerns is a bar to appointing amicus curiae. The court wants to be clear totrial judges that there are red flags; we are to proceed with caution. Amicus is an uncomfortable and unnatural process.

Trial judges areout of their element and comfort zone when they go down this road. But it does not mean that we do not use the amicus tool in order toenhance judicial effectiveness and fairness in trial situations, when the high threshold has been met. [117] So, what is the tipping point? It would seem the more serious the consequences, the more likely the amicus curiae route will beutilized. In the three trial courts of Criminal Lawyers, life [page193] imprisonment was a realistic outcome.

The three trial judges werenot prepared to allow such a drastic result, without resorting to unnatural measures to enhance a fair and effective trial process. [118] At stake here is trial judges' constitutional independence to ensure the fairness of the judicial process. There is a floor below whichwe will not go or the public confidence in trial judges will be compromised. [119] A fair trial is not simply about what the accused wants. Fairness must also be measured from the perspective of the community.

Anaccused does not have an absolute right to defend himself or herself on a self-represented basis. [120] In R. v. Bjelland, 2009 SCC 38 , [2009] 2 S.C.R. 651, [2009] S.C.J. No. 38, the court stated [at para. 22]: While the accused must receive a fair trial, the trial must be fair from both the perspective of the accused and of society more broadly. InR. v. Harrer, (SCC), [1995] 3 S.C.R. 562, McLachlin J. (as she then was) provided guidance on what is meant by trialfairness.

She stated, at para. 45, that: At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trialmust not be confused with the most advantageous trial possible from the accused's point of view: R. v. Lyons, (SCC),[1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldomattained.

A fair trial is one which satisfied the public interest in getting at the truth, while preserving basic procedural fairness for theaccused. [Italics in original] [121] When considering an amicus curiae appointment, a trial judge should conduct a risk-benefit assessment. You just do not ask whatthe concerns are, you ask what the benefits are. Does the benefit value have a greater value than the risk value?

In weighing thosevalues, at what point does your judicial independence become compromised, and you cannot ensure a fair trial process? [122] The amicus curiae issue is more problematic in this era of unprecedented numbers of unrepresented litigants. The Supreme Courtaccepts there is going to be a diminishment of judicial effectiveness but what is the floor standard below which trial judges will not go? [123] Again, viewing these concerns in a theoretical vacuum is not particularly helpful. We have to look at how they play out in a realtrial situation. [124] In this case, the mother could not dismiss Mr. Thomson.

His duty to the court theoretically overrode her instructions to him incertain instances but was she harmed by the potential conflict and blurring of the roles? She was not. In my [page194] observation of herin this lengthy trial, and how it was conducted by Mr. Thomson, I am satisfied her case was put forward effectively. But let us not losesight why this was being done -- I felt significantly benefited by Mr. Thomson's advocacy in terms of better appreciating issuesimpacting on the best interests of the children. Although Mr.

Thomson did not follow her instruction to object to the assessment, overalland on balance, any blurring of the lines was minimal. [125] In R. v. W. (P.J.), the accused had a lengthy criminal record and had horrendous socio-psychological and economic antecedentsthat rendered him damaged and vulnerable, as much as it rendered him as an offender. Do we allow this kind of person to run our trials,with the chaos that sometimes ensues?

His deficits had an enormous impact on his appreciation of what was in his own best interest.How am I supposed to do my function fairly and effectively, if I do not understand his perspective?

[ 126 ] The potential conflict and blurred role of an amicus counsel, the inability to dismiss and the loss of the solicitor-client privilege was a small price to pay, compared to the enormous benefit I received from properly understanding his case. His amicus counsel had a much better appreciation as to what was in his best interest than he did. There will be times when we have to protect litigants from themselves for the sake of ensuring a fair trial process. If it was not for amicus counsel, the outcome for Mr. W. [the accused] would have been far worse. [ 127 ]

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