R. v. Jones, 2011 NSPC 50

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Jones, 2011 NSPC 50 Date: August 8, 2011 Docket: 2292404, 2294274 – 2294277, 2294279 - 2294282 Registry: Halifax Her Majesty the Queen v. Dalton Cornelius Jones DECISION ON APPOINTING AN AMICUS CURIAE Judge: The Honourable Judge Anne S. Derrick Heard: August 8, 2011 Decision: August 8, 2011 Charges: sections 145(2) (b); 264.1(1)(a), 266 x 5, 129(a), 267(

a) of the Criminal Code Counsel: Catherine Cogswell - Crown Attorney, assisted by Karlan Modeste and Charys Payne Dalton Jones for himself [ 1 ] This morning I convicted Dalton Jones of nine offences: an assault and a threat against his wife, Shealynn Rogers, five assaults of his young daughter, Niala Rogers, including an assault with a weapon, resisting arrest and failing to attend court. [ 2 ] Ms. Cogswell for the Crown has advised she will be seeking a federal prison term for Mr. Jones.

She indicates that the Crown’s position is driven by the nature of the offences against Shealynn Rogers and Niala Jones, the vulnerability of those victims, and the abuse of trust and authority by Mr. Jones in relation to those victims – factors that are aggravating under

section 718.2(a)(iii). I expect the Crown will also refer to the aggravating factors outlined in

section 718.2(a)(ii) and (ii.1) – the fact that Mr. Jones assaulted his intimate partner and the fact that he committed assaults against a person under 18 - Niala, who was not quite two years old, around two, or just three on the occasions when she was assaulted by Mr. Jones. [ 3 ] I have also been told that Mr. Jones has a prior record, that although limited, includes a recent, related offence of assaulting a former partner. Ms. Cogswell advises that Mr. Jones received a conditional discharge for this offence. [ 4 ] Mr. Jones was sentenced on June 23, 2011 to 14 days in custody. This appears to represent the only custodial sentence Mr. Jones

has received. He remains in custody now on the offences I have convicted him of as he was denied bail on March 24, 2011. [5] I have ordered a Pre-Sentence Report which the Crown requested in any event. I explained to Mr. Jones what a Pre-SentenceReport is, how it is prepared and what it is for. [6] Mr. Jones continues to insist on representing himself. I have urged him to have a lawyer for the purposes of his sentencing,especially in light of the stakes involved.

I have explained to him that he will still be able to address me before he is sentenced but that alawyer can provide information about him and his circumstances that will be useful, make submissions and refer to the applicable law,and recommend alternative sentencing options to the one being advanced by the Crown as a fit and proper sentence. [7] Despite my entreaties to Mr. Jones to have counsel, he has refused. He says he intends to continue to represent himself. [8] I have suggested that Mr.

Jones consult with duty counsel although I indicated that while I thought that would be of someassistance to him, what he really needs and what I have urged, is representation at his sentencing hearing. Mr. Jones’ position remainsthe same: he will not be engaging a lawyer and wishes to act for himself. [9] This morning I also heard from Mr. Jones’ brother, Desmond Jones, who asked to address me from the audience. I recognizedDesmond Jones from his attendance last week at his brother’s trial. I will refer to him as Desmond so as to avoid confusion as to whichMr.

Jones I am referring to. [10] Desmond Jones told me that Mr. Jones’ family is very concerned about him and the delusions he has been expressing. Desmondindicated that Mr. Jones has a misunderstanding of who he is. I took this to be a reference to Mr. Jones identifying himself as JesusChrist which he implied to me this morning was who he really is. [11] Desmond indicated that in the opinion of Mr. Jones’ family, Mr. Jones has very significant mental health issues that are cloudinghis judgement. Desmond said: “Who he believes himself to be trumps his judgement.” Mr.

Jones apparently believes himself to be allpowerful and “does not understand the impact of his actions on his family, his community, Shealynn, Isha, Niala, or himself.” [12] Desmond also told me that at Mr. Jones’ bail hearing it was indicated that a deportation order would be sought for Mr. Jones in theevent he was convicted. I was advised that Mr. Jones has permanent residency in Canada as of June 2003 which was facilitated throughprivate sponsors. Mr.

Jones came to Canada from Sierra Leone, which we all know was gripped by a protracted and exceptionally brutalcivil war. [13] Desmond concluded his remarks to me by stating that Mr. Jones is on a path of self-destruction and urged that his mental healthissues be explored “so that justice can be served.” [14] I do not intend to make more than a very limited comment at this point about the issue of assessment orders under

Part XX.1, theMental Disorder provisions of the Criminal Code. Assessment orders to determine fitness to stand trial and/or the issue of whether anaccused should be found not criminally responsible are typically pre-verdict issues (see

section 672.11 of the Code), however a courtmay order an assessment “at any stage of the proceedings of its own motion.” The option of ordering an assessment for the sentencingprocess may still be open to me even though I have found Mr. Jones guilty. I believe there may be conflicting jurisprudence on this issuebut I have not had any opportunity to research it. I also do not know if I would order a

section 672.11 assessment even if I could do so.Ms. Cogswell submits that there are no grounds to do so as there is no evidence to indicate that Mr. Jones would come within section16(1) of the Criminal Code. I agree with Ms. Cogswell that there is no indication of Mr. Jones being unfit: he just conducted his trial andI have not seen any indication of a fitness issue within the legal meaning of this concept. I will also note that I did comment on section16(1) of the Criminal Code in my decision convicting Mr. Jones. [15] I am satisfied that in relation to Mr.

Jones’ sentencing I would benefit substantially from the assistance of counsel other than theCrown. The Crown has a brief to represent the public interest and is an officer of the Court. However a criminal proceeding is anadversarial proceeding. On the one hand I have the Crown and on the other hand I have a defendant who refuses to engage a lawyer. TheCrown is seeking a prison sentence for Mr. Jones. In addition to not being legally trained, Mr. Jones’ mental health is being raised as asubstantial concern by his family. I have already noted in my decision convicting Mr.

Jones that he may be laboring under a delusionabout who he is, an impression that was reinforced for me this morning in comments he made to me while we were addressing thematter of proceeding with his sentencing. This is the context in which I will be dealing with a recommendation from the Crown that Mr.Jones be sentenced to a penitentiary term. Ms.

Cogswell for the Crown has indicated that she is in agreement that the appointment ofamicus counsel in this case is appropriate. [16] First of all, it is important, when deciding legal issues that the court be provided with the “appropriate adversarial context.” Thispoint was made by the Nova Scotia Court of Appeal in R. v. McGrath, [2008] N.S.J. No. 135, in relation to the matter of a moot appeal. [17] I am satisfied I have the discretion to order the appointment of counsel to assist me, in other words, an amicus curiae. I note thefollowing comments in R. v. Romanowicz, (ON CA), [1999] O.J.

No. 3191from the Ontario Court of Appeal: 59 The authority of the criminal trial court to control its own process has been recognized both where the court exercises adiscretionary power granted by the Criminal Code and where there is no statutory authority for the court's action. For example, it hasbeen held that criminal courts have the power to appoint counsel… [18] The reference to appointing counsel in Romanowicz is a reference to appointing Rowbotham counsel to represent an accused.However the power to appoint counsel also extends to appointing amicus counsel for the court’s assistance where appropriate.

Such anappointment is appropriate in a case that engages the court’s obligations to safeguard the rule of law and the integrity of the criminaljustice system.

[ 19 ] Although not in the context of appointing counsel, the Newfoundland Court of Appeal also noted that the conduct of court proceedings are entirely within the “control and discretion of the presiding judge… The judge must have the discretion to make decisions with respect to the granting of a postponement and other aspects of the proceedings of the court in order for a court to function with any degree of efficiency, and to ensure fairness to the parties and to the judge.” (R. v. Tapp, [1999] N.J.

No. 182 , paragraph 36 ) The trial judge in Tapp was strongly criticized by the Court of Appeal for his handling of an unrepresented offender’s sentencing and for failing to weigh the competing interests of the parties and ensure the fairness of the proceedings. The Court of Appeal said the following about fairness in the sentencing process: 45 If one of the primary purposes of sentencing is the rehabilitation of offenders, one would think that it is important to start with the offender having confidence that he was properly convicted after a fair trial, and justly punished.

A punishment that may be just in content, may be quite unjust in process, solely because of the manner in which it was imposed and any hardship or injustice that would result from the manner of its imposition… [ 20 ] I have determined on all the circumstances of this case that I require counsel to assist me in relation to the issues in Mr. Jones’ sentencing. That counsel can also consider whether Mr. Jones’ mental health should be addressed under the Criminal Code provisions or otherwise in the context of the sentencing process.

I intend to hold a pre-trial, once I have selected counsel, to instruct on the assistance I am seeking. [ 21 ] It is for the court to determine what it needs in terms of counsel. Amicus curiae are typically senior members of the bar. I require experienced, senior counsel from the criminal defence bar, either Legal Aid or the private bar. By experienced, senior counsel I mean at least 10 years practice that includes criminal defence work. I am seeking to have a short list of candidates willing to act as amicus provided to me and I will make a selection.

Counsel willing to act as amicus will need to be available for the sentencing date. I am going to order a transcript of Mr. Jones’ trial for the amicus . I will set a date for Ms. Cogswell and Mr. Jones to return for the purpose of setting a date for sentencing.

I understand this date cannot be sooner than the last week of September as the Pre-Sentence Report will not be ready until then. . [A provisional date of September 23 at 9:30 a.m. is set to ensure the Pre-Sentence Report is prepared.] [ 22 ] I anticipate requiring written briefs and case authorities from both the Crown and the amicus on the issue of a fit and proper sentence for Mr. Jones with consideration of the issue of his pre-trial custody and sections 719 and 719 (3.1) of the Criminal Code .