R. v. Hart, 2011 NLCA 29

Date: 20110512 Docket: 07/30 Citation: R. v. Hart , 2011 NLCA 29 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : NELSON HART APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Green, C.J.N.L. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division 200505T0216 Application Heard: May 11, 2011 Oral Judgment Rendered: May 11, 2011 Reasons for Judgment by Green, C.J.N.L. Counsel for the Appellant: Rosellen Sullivan Counsel for the Respondent: Stephen Dawson Counsel for the Attorney General: Philip Osborne Amicus Counsel: Randolph Piercey, Q.C.

Edited Transcript of Reasons for Oral Decision Green, C.J.N.L.: [ 1 ] Ms. Rosellen Sullivan, who is counsel for the appellant Nelson Hart pursuant to an order made under

section 648 of the Criminal Code , seeks directions of the Court consequent upon being advised by Mr. Hart by letter dated April 12, 2011 (but received by her on May 4) that he wished to discharge her as his counsel. The appeal has been set to be heard on June 6 and 7, 2011. All material has been filed, except for a possible fresh evidence application, and the appeal is otherwise ready to proceed. [ 2 ] Mr. Hart was convicted of two counts of murder of his two children. His notice of appeal from conviction was filed in this Court on April 3, 2007.

His appeal has still not been heard. [ 3 ] Because of difficulties in the past with Mr. Hart discharging his Legal Aid counsel and then refusing to engage other counsel, the Court appointed an amicus over his objections. Subsequently, Ms. Sullivan and Peter Ralph, were appointed as counsel with Mr.

Hart’s consent. The amicus was not discharged. The submissions in the factum filed by the amicus overlap to some degree those in Ms.Sullivan’s factum but are not completely co-extensive. [4] Mr. Hart has had mental health issues in the past. He has been certified under the New Brunswick mental health legislationand has been detained in a mental health facility where he received treatment, including medication. That occurred in November of2009. While receiving treatment he expressed the wish to retain Ms. Sullivan and Mr. Ralph as counsel and as a result in May, 2010 Imade an order to that effect.

Since then he has worked with Ms. Sullivan in preparation for the appeal and she says that she had noconcerns about whether he was able to relate to her and give her instructions with respect to the appeal. He was subsequently transferredback to the prison population in Renous in March, 2011 and it was shortly thereafter that difficulties began to occur in his relationshipwith counsel. He purported to discharge Ms. Sullivan but shortly after he recanted and re-engaged her. Recently, he has again expressedthe view that he does not want her to represent him and, according to Ms.

Sullivan, he said that he has someone else in mind to replaceher (although I note there is no evidence before me of who that person is, whether he or she is prepared to act and within whattimeframe). That is the background of this matter. [5] For the hearing today I gave instructions that Mr. Hart be enabled to appear at the hearing by teleconference to confirm hisdesire to discharge his counsel, to determine whether his reasons for discharging Ms. Sullivan were rational ones and to hear hisalternative plans for the appeal. He refused to participate.

I know nothing, therefore, as to whether his earlier position expressed to Ms.Sullivan about discharging her remains the same today. [6] Considering: (

i) the fact that his troubles with counsel occurred after he was discharged from his treatment facility; (ii) what Iwould consider almost a bizarre position of wanting to discharge counsel, who by all external measures appears to have actedcompetently and professionally, and, (iii) the refusal to give any explanation for wanting to discharge her, it is tempting to conclude thatmental health issues may once again be clouding Mr. Hart’s judgment. However, the fact that he was discharged from the mental healthfacility and has not been re-admitted (and apparently, according to Ms.

Sullivan, there are no current plans to do so) and the fact that theprison and medical officials in New Brunswick are obviously alert to the health issues involving Mr. Hart, I have to conclude, for thepurposes of this hearing, that Mr. Hart is not suffering to the point where he is unable to act rationally and is not incapable of instructingcounsel or is unfit to proceed with his appeal. Other evidence may change that conclusion but on the basis of what I know today, that isthe only conclusion that I can draw. [7] Mr. Piercey, the amicus, says that we should respect Mr.

Hart’s wishes, discharge counsel and if necessary, postpone theappeal to allow other counsel to be appointed. Alternatively, he suggests that a short postponement be allowed to see if Mr. Sullivancould, in fact, continue as counsel. In that regard, Ms.

Sullivan advises she is willing to continue to act and she does not perceive anyimpediment from the point of view of her professional obligations to her doing so. [8] Counsel for the Crown points out that the appeal has been languishing for an inordinate period of time and that, given Mr.Hart’s history with respect to discharging counsel, there would be no guarantee that if the appeal were postponed and other counselengaged Mr. Hart would not discharge that counsel as well. There is no guarantee, therefore, as to when the appeal would proceed. Hehas, according to Mr.

Dawson, in effect disentitled himself to further postponements to retain other counsel especially where he has givenno understandable reason why he does not want Ms. Sullivan to act. [9] I do note that Mr. Piercey pointed to references in Ms. Sullivan’s factum to the idea of seeking to present fresh evidence onthe appeal and he suggests that maybe the disagreement between Ms. Sullivan and Mr. Hart relates to that. But Ms. Sullivan (I wouldsay wisely and appropriately) declined to disclose the discussions between Mr. Hart and her with respect to his reasons.

So, it is reallyspeculation as to why this issue has arisen. [10] Speaking generally, I am reluctant to postpone the appeal at this time. It is not in anyone’s interest, including the interest ofMr. Hart, to allow him to languish further in jail if indeed, as has been argued on his behalf, he has a basis for having the murder verdictsoverturned. Whether he would be successful or not, of course, is another issue.

But if his arguments do have merit, then the longer heremains in jail it is against his interests and against society’s interests to have that happen. [11] That said, it is important that the points in Mr. Hart’s favour be fully and fairly presented to the Court on the appeal. Obviously, it would be in Mr. Hart’s interests to be represented by fully briefed and competent counsel. In this case, however, thoseconcerns are ameliorated somewhat by the presence of amicus whose very appointment was made because of the fact that Mr.

Hart, atthat point, was refusing to nominate anyone else as counsel. [12] The preferable course, in my view, would be for Ms. Sullivan to continue as counsel. However, it would not be right to requireher continuation over the continuing objections of Mr. Hart. The problem is that we do not know what Mr. Hart’s current position is andgiven his history he may have changed his position since writing his last letter to Ms. Sullivan or may, indeed, change it today ortomorrow based on what is said here in Court. [13] By virtue of his non-participation in this proceeding, Mr.

Hart has given no indication that he stills wants to discharge Ms.Sullivan and if so, why. Nor has he been able to give information to the Court as to what his plans would be if Ms. Sullivan weredischarged. Does he have other counsel in mind? Who is that person? Is counsel prepared to act within a reasonable time and whatimpact would all that have on the appeal date? All of these questions remain unanswered. [14] I also gave consideration to discharging Ms. Sullivan as counsel and appointing her as amicus to assist Mr. Piercey and in thatway enable her arguments to be presented to the Court. (See R. v.

Ta (2002), (ON CA), 164 C.C.C. (3d) 97(Ont.C.A.) at para. 15). However, on reflection I believe that it would be too risky to do that without knowing that the reasons forwanting to discharge Ms. Sullivan, if they continue to be asserted by Mr. Hart, do not in any way relate to the substance of the appeal. Itwould be inappropriate to allow arguments that Mr. Hart may not have wanted to be put before the Court to be made nevertheless underthe guise, if you will, of Ms. Sullivan acting as amicus. I will leave to Mr. Piercey any determination as to what, if anything, of thearguments that Ms.

Sullivan has put forward in her factum ought to be adopted by him and stressed to the Court. [15] All of this to leads me, at this point, to say that as of this date I believe it is premature to discharge counsel and it is premature

to address whether Mr. Hart has disentitled himself to the appointment of further counsel. I am attracted by the suggestion of the amicus that a short period should be given to enable Ms. Sullivan to determine for sure that Mr. Hart’s decision to discharge her is irrevocable. That would also allow further time to explore Mr. Hart’s potential – I stress potential because I do not know of anything definitively – mental health issues, if indeed, they are relevant to what we are presently dealing with. Only at that point should consideration be given to revoking my previous order and discharging Ms. Sullivan and Mr.

Ralph as counsel, and to the question of whether other counsel should be appointed, taking into account the impact on the existing appeal date. [ 16 ] Accordingly, I will make the following order: 1. The matter will be enlarged until Thursday, May 25th, 2011 at 2:30 p.m. to enable Ms. Sullivan to explore further with Mr. Hart whether he, in fact, wishes to discharge her. 2. The matter will be called on that date to address: (

a) whether, in fact, Ms. Sullivan should be discharged; (

b) if so, whether other counsel should be appointed; and (

c) whether the appeal should proceed on the dates now scheduled. 3. An order will be made that Mr. Hart be made available by teleconference, by the prison authorities on May 25th, 2011 at 2:30 p.m. Newfoundland time. 4. On May 25th, if Mr. Hart wishes other counsel to be appointed, he must indicate who that counsel is and have him or her appear in Court to confirm that he or she is prepared to act. If not, consideration will be given to proceeding with the appeal with Mr. Hart representing himself. 5.

The existing appeal dates of June 6 and 7, 2011 shall be maintained on the docket unless varied by subsequent order. [ 17 ] I would add that I said that “consideration” will be given to proceeding with the appeal with Mr. Hart representing himself. I am not saying, at this point, that it will necessarily proceed because I think that decision has to be made in the light of other things that flow from whether or not Ms. Sullivan should be discharged and whether other counsel is to be appointed. That is the point at which time that issue would be addressed.

What I am attempting to do here is to salvage the situation and to try to protect the integrity of the existing appeal date in a way that is nevertheless fair to Mr. Hart. That may be a vain hope but there are so many intangibles and unknowns at the moment that I do not think one can predict whether or not it is realistic to do this. But, in the hope that we may be able to salvage the matter, I think it is worth a try. Green, C.J.N.L.