R. v. Hart, 2011 NLCA 37

Date: June 7, 2011 Docket: 07/30 Citation: R. v. Hart 201l NLCA 37 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., Barry and Harrington, JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (General) 200505T0216 Application Heard: June 6, 2011 Decision Rendered: June 6, 2011 Memorandum of Disposition Filed: June 7, 2011 Appellant appearing in person (by videoconference) Amicus Curiae : Randy J. Piercey, Q.C. Counsel for the Respondent: Stephen R.

Dawson MEMORANDUM OF DISPOSITION Green, C.J.N.L.: [ 1 ] The appeal of Nelson Hart against his conviction on two counts of murder, which was scheduled to be heard on June 6 and 7, 2011, was adjourned on the morning of the hearing. The Court also made certain consequential orders. This Memorandum of Disposition explains the background to these developments. [ 2 ] This matter has involved many procedural and logistical difficulties in the past, primarily involving issues relating to legal representation for Mr. Hart.

Some of the background events are summarized or referred to in the following previous decisions: R. v. Hart : 2009 NLCA 10 (Wells, C.J.N.L.); 2010 NLCA 33 (Green, C.J.N.L.); 2011 NLCA 29 (Green, C.J.N.L. 29); 2011 NLCA 34 (Welsh, J.A.) .

[ 3 ] Although Mr. Hart had been assigned counsel in May 2010 pursuant to an order made by me under s. 684 of the Criminal Code , his counsel was discharged, at Mr. Hart’s request, by subsequent order of Welsh, J.A. on May 25, 2011. Mr. Hart refused to participate in the hearing on May 25. It was therefore unclear as to whether he wanted to proceed with his appeal on his own, appearing in person or by videoconference. Welsh, J.A. nevertheless confirmed that the appeal would proceed on June 6-7 as originally scheduled. [ 4 ] There being no request received from Mr.

Hart to appear in person on his appeal, arrangements were made for a videoconference link between the Court and the institution where Mr. Hart was incarcerated so that he could appear by that means if he chose, even at the last minute, to do so. [ 5 ] When the case was called on June 6th, Mr. Hart did in fact appear by videoconference and spoke to the procedural issues that were engaged. It became clear that Mr.

Hart did not have with him the written facta, appeal book and transcripts that had been filed and there were also serious questions raised as to whether he had ever received and reviewed some of those materials, especially the transcripts of the trial. These were materials to which, he said, he wanted access so that he could have participated with his then counsel in the preparation of the appeal. Now that he is no longer represented, it was all the more important that he have access to that material. As he put it, he needed “disclosure” before he could proceed with the appeal.

He also said he wished to have counsel represent him, but it would have to be someone who would be prepared to discuss the transcript with him so that he could have input into the arguments that were to be made. [ 6 ] In effect, Mr. Hart was seeking a postponement of the hearing to enable him to review the appeal materials and to instruct counsel after he had an opportunity to review them. The amicus curiae supported this position. Counsel for the Crown, while not supporting the request, agreed that it was important that Mr. Hart be in a position to deal fully with the materials relevant to his appeal.

Counsel stated, however, that given the history of delays up to now, he was skeptical as to whether a postponement to obtain yet further counsel would effectively advance the matter to a conclusion. [ 7 ] The Panel was of the view that inasmuch as Mr.

Hart was presently unrepresented and, for whatever reason, appeared not to have had access to the transcripts of the trial, and perhaps other documents pertaining to the appeal, it would be inappropriate to proceed with the appeal until such time as the Court could be assured that he had possession of all of the material relating to the appeal and had an opportunity to review that material. [ 8 ] The Panel was also of the view that Mr. Hart should be given the opportunity to instruct counsel with respect to the appeal once he had reviewed the transcripts and other materials.

With the concurrence of Crown counsel and the amicus , we indicted that we were prepared, in the unusual circumstances of this case, to give Mr. Hart one further opportunity, by way of an order under s. 684 of the Criminal Code , to have counsel represent him on his appeal. [ 9 ] Accordingly, the Court made the following Order: 1. The appeal hearing is adjourned sine die ; 2. Crown counsel shall forthwith make arrangements for provision to Mr. Hart of copies of: (

a) the appeal book; (

b) the transcript of the evidence at trial; (

c) the facta, including any supplementary facta, previously filed by Mr. Hart’s former counsel; the amicus ; and Crown counsel; (

d) the printed transcripts of the conversations between Mr. Hart and various undercover officers that were entered into evidence at trial, together with the videotapes/cd’s of those conversations, provided that, in the case of the videotapes/cd’s, they shall be delivered into the custody of officials of the institution where Mr. Hart is incarcerated with a direction that Mr. Hart is to be permitted to view them in circumstances where no other person shall see them. 3. The matter shall be called again in Court on June 28, 2011 for a report on the status of the matter and for further directions, if necessary; 4.

If Mr. Hart wishes to have counsel represent him on his appeal, he shall cause counsel entitled to practice law in the province of Newfoundland and Labrador to appear at the hearing on June 28, 2011 and confirm that he or she consents to be Mr. Hart’s counsel for the purpose of the appeal. In the event of such an appearance, that counsel shall be confirmed as counsel for Mr.

Hart pursuant to s. 684 of the Criminal Code with the counsel’s fees and disbursements to be paid by the Attorney General of the province in amounts as agreed between the Attorney General and that counsel or, failing agreement, to be taxed by a Master. 5. In the event counsel does not appear for Mr. Hart on June 28, 2011, the Court will entertain an application to set a new appeal hearing date with Mr. Hart to appear on his own behalf. J. D. Green, C.J.N.L.