R. v. Hart, 2012 NLCA 65

Date: 20121010 Docket: 07/30 Citation: R. v. Hart , 2012 NLCA 65 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : NELSON LLOYD HART APPELLANT/APPLICANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Wells J.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (

G) Gander 200505T0216 Application Heard: October 5, 2012 Decision Rendered: October 5, 2012 Reasons for Decision Filed: October 10, 2012 Counsel for the Appellant/Applicant: Peter Ralph, Q.C. & Rosellen Sullivan Counsel for the Respondent: Frances Knickle Counsel for the Attorney General: Rolf Pritchard, Q.C. MEMORANDUM OF DISPOSITION

Wells J.A. [ 1 ] Mr. Hart was convicted on two charges of first degree murder, consequent upon the drowning of his two very young daughters. The major evidence at trial resulted from a “Mr. Big” sting operation in which Mr. Hart was led to believe he was participating with criminals in a lucrative criminal operation. On one occasion he asserted to one of the undercover police officers, without prompting, that he had killed his daughters and had planned it.

On another occasion, after prompting and pressure to “tell the truth”, he provided detailed a description and demonstrated the manner in which he says he caused their deaths. That evidence was admitted at trial and Mr. Hart was convicted on both counts. [ 2 ] The hearing of the appeal had been delayed several months due primarily, if not exclusively, to Mr. Hart’s distrust of virtually anybody involved, including different counsel appearing for him at different times. Legal aid counsel was a particular focus of his distrust and he would not accept their assistance.

The appeal proceeded only after the Court appointed amicus curiae to ensure that all arguments potentially beneficial to Mr. Hart were presented. The appeal was allowed and a new trial was ordered. [ 3 ] Mr. Hart now applies, pursuant to

section 684 of the Criminal Code of Canada , for an order “appointing Rosellen Sullivan and Peter Ralph to represent [him] in the application for release pending new trial and any related and incidental matters”. Mr. Hart was present, by video, at the hearing of the application and confirmed that he desired the appointment of Ms. Sullivan.

In addition to Crown counsel being present, the attorney general was separately represented. [ 4 ] As the appeal has been concluded, the Court raised with counsel whether the proposed application for judicial interim release is, in the circumstances, a proceeding “incidental to an appeal” within the meaning of that phrase in subsection 684(1). Both Crown counsel and counsel for the Attorney General agreed that it is. On the basis of that agreement I am prepared to make the requested order. [ 5 ] Because nothing in the record indicated that either a warrant for committal, pursuant to

section 515, or a detention order, pursuant to

section 522, had been issued, the Court raised with counsel the question of whether it had jurisdiction to deal with an application for judicial interim release or any ancillary proceeding if it could not be demonstrated that Mr. Hart was lawfully in custody. After adjournment for counsel to consider the matter, counsel agreed that an order for detention ought to have been made following the setting aside of the conviction. Crown counsel requested that such an order now be made. Counsel for Mr. Hart having no objection, the Court ordered, pursuant to subsection 522(2), that Mr.

Hart be remanded into custody at Her Majesty’s Penitentiary until dealt with according to law. [ 6 ] With respect to the

section 684 application, Ms. Sullivan indicated that the only difference between the parties respecting this application is that Mr. Hart is seeking to have two counsel, herself and Mr. Ralph, appointed, while it is the view of the Attorney General that only one should be appointed. She asserted that while she would attend to all of issues of a purely legal nature, because of his experience with persons involved in providing the kind of services Mr. Hart would require, Mr.

Ralph would facilitate the development and establishment of a release plan, “including a place to live and sureties before he applies for release”. She argued that such a plan is essential in the particular circumstances of Mr. Hart. [ 7 ] Counsel for the Attorney General submitted that there is nothing to support the proposition that the appointment of two counsel, at the expense of the Attorney General, is necessary to enable the development of an accommodation plan to support an application for judicial interim release.

He indicated that the Attorney General agreed that counsel ought to be appointed, pursuant to

section 684 , but that it ought to be one counsel and not two. He also argues that the services expected from Mr. Ralph are not legal in nature and there is no basis for appointing him as counsel in order to access such services. [ 8 ] In my opinion it is desirable, in the interest of justice, that Mr. Hart should have legal assistance and I am satisfied that Mr. Hart does not have sufficient means to obtain that assistance. I am not, however, satisfied that it is necessary to appoint two counsel in order to develop and present a plan to accommodate the release of Mr. Hart in his particular circumstances. If such expertise is essential, and cannot be provided by counsel appointed,

section 684 permits reimbursement for disbursements necessarily and properly incurred. Accordingly, I order, pursuant to

section 684, that Rosellen Sullivan be appointed to act as counsel for Mr. Hart in the matter of his presentation to this Court of an application for judicial interim release and any related and incidental matters in this Court. It is also ordered that, legal aid not having been granted, the fees and disbursements of counsel shall be paid by the Attorney General. C. K. Wells J.A.