Re Jennifer Hart; R. v. Hart, 2011 NLCA 64

Date: 20111004 Docket: 07/30 Citation: Re Jennifer Hart; R. v. Hart , 2011 NLCA 64 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL IN THE MATTER OF an application by Jennifer Hart to be appointed guardian ad litem of Nelson Hart in a criminal matter BETWEEN : NELSON LLOYD 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 200505T0216 Application Heard: September 15, 2011 Judgment Rendered: October 4, 2011 Reasons for Judgment by Green, C.J.N.L.

Concurred in by: Barry and Harrington, JJ.A. Appellant not represented and not appearing Counsel for the Respondent: Stephen R. Dawson Amicus Curiae : Randolph J. Piercey, Q.C. Counsel for Jennifer Hart: Jamie Merrigan & Rob Ash

Counsel for Public Trustee: Rolf Pritchard Green, C.J.N.L.: [ 1 ] Nelson Hart appeals his conviction for the murder of his two infant daughters. Although he was represented by counsel at his trial and at earlier stages of the appeal process, he at present has no counsel, having dismissed counsel appointed under s. 684 of the Criminal Code of Canada approximately three months ago. Since that time he has not sought to appoint other counsel or to request the Court’s further assistance in appointing counsel.

Nor has he given any indication of an intention to appear and represent himself at his upcoming appeal hearing which is scheduled for hearing in approximately two weeks time. [ 2 ] Mr. Hart has steadfastly refused to participate in any hearings held since he discharged his former counsel. Claiming that he is not mentally fit to conduct his own appeal, instruct legal counsel or properly engage the process of the Court, Mr. Hart’s wife, Jennifer, has applied to be appointed his guardian ad litem . If so appointed, her intention is to engage and instruct legal counsel to represent Mr. Hart on the appeal.

Alternatively, she seeks an order for release to her of Mr.

Hart’s medical, psychiatric and correctional records to better enable her to ground a further application to be appointed guardian ad litem . [ 3 ] This application, involving, as it does, a claim to authorize someone other than an appellant in a criminal appeal potentially to override the appellant’s own wishes as to the manner of conducting his appeal, is certainly unusual and may well be unique. [ 4 ] The application engages issues relating to the jurisdiction of the Court to make such an order; the standing of a third party (albeit a close relative) to make such an application; the legal basis for the Court to act, assuming it has jurisdiction; the legal test to be met and the evidentiary base necessary to justify such an appointment; and the fundamental characteristics which a guardian, if appointed, should possess. [ 5 ] As will become apparent in the ensuing discussion, a decision on these issues, in the peculiar context of this case, may have significant effects on a number of fundamental interests at play, including: the interest of an appellant in choosing whether to have appellate advocacy; the interest in ensuring a fair hearing in a legal system which depends on advocacy for its effective operation; and the interest of the public and Mr.

Hart in having proceedings dealt with on a timely basis. To appreciate the significance of the issues in this case, it is necessary to recount some of its procedural history. BACKGROUND [ 6 ] The events which gave rise to the charges against Mr. Hart occurred in August, 2002. His two three-year-old twin daughters died as a result of drowning in Gander Lake, NL. Immediately before their deaths they had been in Mr. Hart’s custody. No one else was present.

In a cautioned statement to police he maintained one child accidentally fell off the end of a wharf, that he panicked and, leaving his other child on the wharf, drove to Gander to get his wife. He could not swim. He returned to the wharf with his wife but could not see the other child. He left again and drove to a service station on the road to Gander and called an ambulance. When help arrived, the other child was also found in the water. One was deceased when removed from the water. The other died shortly thereafter. [ 7 ] The police were skeptical of Mr. Hart’s explanation. They conducted an elaborate “Mr.

Big sting” operation over a five month period, drawing Mr. Hart into a fictitious criminal organization with the intention, after establishing a trust relationship with him, of eliciting an acknowledgement that he in fact killed his daughters by pushing them off the end of the wharf. In response to the pretense that he had to disclose prejudicial information about himself in order to cement his position in the organization, Mr. Hart acknowledged that he was responsible for the children’s deaths. Charges ensued.

The revelation that the organization that he trusted and believed he was part of was an elaborate police hoax came as a shock to him. Thereafter he became very distrustful of his dealings with anybody, especially persons in apparent public authority. [ 8 ] Mr. Hart’s jury trial took place in 2007, following a number of legal challenges, including whether the confession resulting from the police sting was admissible. The trial judge had ruled that the confession was admissible. At the trial, issues arose between Mr. Hart and his Legal Aid counsel relating to, amongst other things, whether Mr.

Hart should testify in his own defence. At one point, Mr. Hart asserted to the trial judge that he had lost confidence in the ability of his counsel to represent him. The trial continued and Mr. Hart did not testify, even though his counsel had announced to the jury at the commencement of the trial that he would testify. He was convicted on the two first degree murder counts in March, 2007. [ 9 ] These issues, relating to admissibility of the sting confession and relations between Mr. Hart and his counsel, amongst other things, form the basis of Mr. Hart’s grounds of appeal.

Although the grounds of appeal are not directly relevant to the current application, the circumstances underlying them nevertheless form an important backdrop for present purposes, because it is a fair inference that Mr. Hart’s experiences relative to his betrayal by those he trusted in the sting operation and his difficulties with counsel in the past have coloured his approach to his subsequent interaction with others in the appeal process and in his attitude toward continuing relationships with counsel. [ 10 ] Mr. Hart’s appeal from conviction was filed in this Court on April 3, 2007.

It would be an understatement to say that many difficulties have been experienced in perfecting the appeal. The transcript was completed and filed in October of 2007. The procedural events that occurred from late 2007 to early 2009 are described in detail in a previous decision of Wells, C.J.N.L. and need not be repeated here. See R. v. Hart , 2009 NLCA 10 , 282 Nfld. & P.E.I.R. 346, paras. 4-18 . It is sufficient for present purposes to summarize those events as follows. [ 11 ] In January, 2008 Mr.

Hart’s Legal Aid counsel, who had been appointed to represent him on the appeal, made application for leave to withdraw based on Mr. Hart’s request that he do so. Mr. Hart indicated that he intended to make an application to the Court for the appointment of counsel in private practice to represent him. He failed to do so. This led to the Crown making an application to set a date for the filing of Mr. Hart’s factum. There were numerous appearances in Court (with Mr. Hart appearing by videoconference from the institution where he was incarcerated) throughout 2008. On each occasion Mr.

Hart raised one problem or another to explain his

failure to have selected counsel to represent him. He did say that he wished to have nothing to do with the Legal Aid Commission because he felt all Commission staff counsel were in a conflict of interest. He asserted that even if private counsel were appointed for him with fees to be paid by legal aid, he would not accept it. [ 12 ] Eventually, the Crown filed an application to strike out the notice of appeal. However, at the hearing of the application, the Crown asked instead that the Court appoint amicus curiae to argue the appeal. Mr. Hart opposed this.

As a result, the Court asked Crown counsel to determine whether the Attorney General could make arrangements for the direct payment of fees for counsel of Mr. Hart’s choice instead of having them paid by the Legal Aid Commission, with which Mr. Hart wanted nothing to do. Mr. Hart indicated he was generally in agreement with this. [ 13 ] When the matter was next called in Court, on December 16, 2008, Mr. Hart remained in his cell and refused to participate in the proceeding. Although the Attorney General had approved the payment of counsel fees, directly through his office, for counsel engaged by Mr.

Hart, because Mr. Hart’s intentions with respect to engagement of counsel could not be ascertained, due to his non-participation in the proceedings, the matter was again adjourned, at Crown counsel’s request, to January 13, 2009 to enable the Crown to review its application for appointment of amicus curiae . [ 14 ] Although Mr. Hart gave an indication in writing that he intended to attend the January hearing and oppose the appointment for amicus , he in fact again refused to leave his cell or participate. The Court heard and granted the Crown’s application to appoint an amicus , notwithstanding Mr.

Hart’s written objections. In reasons for decision filed on February 12, 2009, Wells, C.J.N.L. explained: [29] The record establishes, as significant relevant circumstances, the following: • Mr. Hart’s acknowledgment of his inability to prepare for and present his appeal; • Mr. Hart’s seeming inability or unwillingness to identify counsel he is prepared to accept and who will be prepared to represent him; • Mr.

Hart’s demonstrated apprehensions that virtually all activities undertaken by anybody in connection with this appeal is somehow participating in another sting being undertaken by the police; • The concerns expressed by Mr. Hart’s mother and Mr. Hart’s wife about his inability to proceed properly with his appeal and his desire that it proceed; and • The concerns expressed by the Crown that if there are valid grounds of appeal they be properly presented to the Court.

I am satisfied that those circumstances warrant this Court appointing amicus curiae to ensure that the proposed appeal is, in fact, presented, and that all possible arguments in support of the proposed grounds of appeal, as well as any further appropriate grounds of appeal, are properly presented to the Court. In doing so, amicus may make such submissions and further applications to the court as amicus considers appropriate to the circumstances. [30] In coming to that conclusion I am not unmindful of Mr.

Hart’s opposition to the appointment of amicus curiae and his suggestion that “… it will be violating my rights”. However, Mr. Hart can rest assured that the purpose of the appointment is to further the interest of justice and ensure the protection of his rights, not their violation. Mr. Hart, of course, continues to have the right to appoint counsel of his choice to represent him, and have that person paid at Legal Aid Commission rates but be paid by the Attorney General directly, in order to address Mr.

Hart’s expressed apprehensions about the Legal Aid Commission being in a conflict of interest position in relation to Mr. Hart. If counsel is so appointed by Mr. Hart, that counsel will have carriage of Mr. Hart’s appeal. Only if amicus curiae believes that additional arguments or submissions beneficial to Mr. Hart could be made but are not being made, or the appeal is not proceeding expeditiously, will it be necessary for amicus curiae to intervene at all. [31] The actions of amicus , in the course of discharging appropriate responsibilities, will not result in solicitor-client obligations to Mr. Hart.

The responsibility of amicus is to assist the Court. In the event that Mr. Hart appoints counsel of his choice, amicus is free to consult with Mr. Hart’s counsel to such extent as amicus deems necessary. In the event that Mr. Hart does not appoint counsel, amicus is free to consult Mr. Hart, if he agrees to be consulted, to gain such information as may be necessary to enable amicus to present fully all arguments that could be beneficial to Mr. Hart. [ 15 ] Two matters are to be noted in Wells, C.J.N.L.’s ruling. The first is that he left open the possibility for Mr.

Hart to engage his own counsel of choice with payment to be made by the Attorney General instead of the Legal Aid Commission. The second matter is that he recognized that although amicus could consult with Mr. Hart if he agreed, the relationship between the amicus curiae and Mr. Hart was not one of solicitor and client. That meant that the amicus would not automatically have access to all material relating to the trial which had earlier been subject to solicitor-client privilege operating between Mr. Hart and his trial counsel. [ 16 ] As matters transpired, Mr.

Hart chose not to consult with amicus during the course of his work and did not give consent to the amicus to consult his former counsel’s trial file. [ 17 ] Mr. Randolph J. Piercey, Q.C., an experienced defence counsel, was appointed amicus curiae in March, 2009. EVENTS SUBSEQUENT TO APPOINTMENT OF AMICUS CURIAE [ 18 ] Following a review of the notice of appeal, the transcript of the trial and other relevant material (but not the file of Mr. Hart’s defence counsel at trial, due to Mr.

Hart’s failure to waive solicitor-client privilege in respect of that), the amicus identified three issues for argument on the appeal. He filed an appeal book and an extensive factum in respect of those matters on January 29, 2010. [ 19 ] Following Mr. Hart’s dismissal of his counsel in January, 2008 Mr. Hart’s wife says his behavior changed. He refused to allow her to visit him at the prison, saying that he believed her visits were part of the police sting operation. She also says that he wrote

her letters stating that he believed his cell was “bugged” and that everything he said was being recorded, to be used against him on his appeal. It was during this period as well that Mr. Hart engaged in the uncooperative behavior with respect to his participation in the hearings in this court regarding identification of alternative counsel and, ultimately, appointment of the amicu s. [ 20 ] Presumably as a result of observations of prison authorities and assessments by medical officials, Mr.

Hart was committed as an involuntary patient in Shepody Healing Centre in New Brunswick in September 2009 pursuant to applicable New Brunswick mental health legislation. Mrs. Hart says that during his stay at Shepody Mr. Hart began corresponding with her again and ceased expressing beliefs about the continued operation of the police sting operation. [ 21 ] In May of 2010, the Crown, having filed its factum in response to the amicus’ brief, applied to set a date for the hearing of the appeal. The matter came before the Court on May 18, 2010. Mr.

Hart participated in the hearing by telephone pursuant to s. 688(2.1) (

a) of the Criminal Code . He indicated that he now wanted to be represented by counsel of choice from the private bar, Ms. Rosellan Sullivan and her colleague, Mr. Peter Ralph, both experienced defence counsel. This request was not opposed by the Crown and was supported by the amicus curiae . As a result, and notwithstanding the length of time that had elapsed since the filing of the notice of appeal, I exercised the power under s. 684 and appointed the requested counsel. See R. v. Hart, 2010 NLCA 33 .

I explained: [13] Although the engagement of counsel comes at a late stage in the proceeding, and will undoubtedly delay the hearing of the appeal further to enable Ms. Sullivan and her colleague to prepare and file a factum and possibly other material, it would clearly be desirable for Mr. Hart to be represented on this appeal. The issues raised in the notice of appeal are significant ones requiring careful analysis and research and could not be properly presented by Mr. Hart without assistance.

While it is true that the amicus is charged with ensuring (in the words appointing him) that “all possible arguments in support of the proposed grounds of appeal, and any other appropriate grounds of appeal, are properly presented to the Court”, he is not regarded as Mr. Hart’s counsel and Mr. Hart does not have the protection of solicitor-client privilege in his dealings with the amicus , unlike the situation that would exist when instructing one’s own counsel. [14] It must be remembered that this is Mr. Hart’s appeal.

He is entitled to instruct counsel as to its presentation … [15] It is clear from the previous proceedings that it was regarded by all that the preferred position was for Mr. Hart to have his own counsel. Chief Justice Wells specifically left open to Mr. Hart, notwithstanding the appointment of the amicus , the possibility of appointing his own counsel of choice. … All participants are agreed that given the seriousness of the consequences to Mr.

Hart and the nature of the issues raised, the basis for the conviction should be thoroughly tested and explored by full and complete argument. … [18] I will also make the following observation about the continuing role of the amicus curiae . Although carriage of the appeal now belongs to counsel for Mr. Hart, because of Mr. Hart’s history of unpredictable changes of position, the amicu s may still have a role to play on the appeal, though perhaps a more limited one than originally contemplated. [ 22 ] The Court was told that appointed counsel met with Mr. Hart and had no difficulty taking instructions from him.

In due course, a factum was prepared, placing different emphasis on the issues identified by the amicus in his brief, and also raising other issues. [ 23 ] Mr. Hart remained in Shepody receiving treatment until September 2010 when he was discharged and returned to the prison at Atlantic Institution at Renous. According to Mrs. Hart, thereafter he again began asserting conspiracy theories alleging that his family, counsel and the courts were all part of a sting operation to ensure his conviction not only for the original murders but also for additional sexual assault charges. Copies of letters written by Mr.

Hart and transcripts of telephone calls to his mother were submitted in support of these assertions. [ 24 ] On request of all counsel, June 6, 2011 was set for the hearing of the appeal. [ 25 ] In March 2011, counsel for Mr. Hart advised the Court that she was encountering difficulties in her continuing relationship with Mr. Hart. He was refusing to sign certain affidavits in relation to a proposed fresh evidence application. A little later he purported to dismiss his counsel but shortly thereafter recanted and said he wanted to continue to engage her. [ 26 ] In mid-April 2011, Mr.

Hart wrote a letter to his counsel stating that he wished to discharge her. This letter was not received by his counsel until May 4, 2011. [ 27 ] In consequence, counsel for Mr. Hart applied to the Court for directions. The application was scheduled for May 11, 2011. Arrangements were made for Mr. Hart to appear by teleconference to allow him to express views respecting the continued involvement of counsel and to hear his plans for the appeal. He refused to participate. Ms. Sullivan confirmed that she had spoken to Mr. Hart and that he had confirmed that he did not want her to continue to represent him.

He also indicated that he had someone else in mind whom he

might wish to engage. Ms. Sullivan further confirmed to the Court that she was prepared to continue to represent him and that the difficulties that had arisen between them were not of a type that would, professionally, preclude her from continuing to act if that was considered appropriate. [ 28 ] Crown counsel expressed concern about the delays that were occurring and preventing the appeal being heard. He was of the view that the appeal should proceed as scheduled, without counsel for Mr. Hart, and with the Court only hearing from the amicus .

The amicus , on the other hand expressed the strong view that it was important that Mr. Hart have his own counsel on the appeal. He suggested that, given Mr. Hart’s history of having discharged and then re-engaged Ms. Sullivan on a previous occasion, there might still be an opportunity for Mr. Hart to reconsider his actions and continue with Ms. Sullivan as counsel. In the end, I agreed with the suggestion of amicus to allow a short period of time to see if the relationship between Mr. Hart and Ms. Sullivan could be re-established. See R. v. Hart, 2011 NLCA 29 .

I explained: [10] … I am reluctant to postpone the appeal at this time. It is not in anyone’s interest, including the interest of Mr. 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 verdicts overturned. Whether he would be successful or not, of course, is another issue. But if his arguments do have merit, then the longer he remains 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, these concerns are ameliorated somewhat by the presence of amicus whose very appointment was made because of the fact that Mr. Hart, at that 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 require her continuation over the continuing objections of Mr. Hart.

The problem is that we do not know what Mr. Hart’s current position is and given his history he may he changed his position since writing his last letter to Ms. Sullivan or may, indeed, change it today or tomorrow 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 still 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 were discharged. Does he have other counsel in mind? Who is that person?

Is counsel prepared to act within a reasonable time and what impact would all that have on the appeal date? All of these questions remain unanswered. [ 29 ] As a result, I enlarged the hearing to May 25, 2011 to give Mr. Hart and Ms. Sullivan a further opportunity to reestablish their relationship, with the intent that if that was not possible, the Court would then deal with an application to discharge her as counsel, consider whether there were other counsel whom Mr. Hart wanted to be appointed and determine whether the appeal should proceed on the scheduled dates. Mr.

Hart was written by the Deputy Registrar of the Court explaining what had occurred and encouraging him to appear on the enlarged date. [ 30 ] When the matter was called on May 25, 2011, Mr. Hart refused to appear or participate. Counsel indicated that there had been no indication from Mr. Hart that he had changed his mind about discharging Ms. Sullivan as counsel. Welsh J.A. determined that, in these circumstances, Ms. Sullivan could not continue to act for Mr. Hart and discharged her as counsel. See R. v. Hart. 2011 NLCA 34 . There being no indication of other counsel willing to act for Mr.

Hart, Welsh J.A. also ordered that the appeal proceed on the scheduled date of June 6, but that the factum filed on Mr. Hart’s behalf by Ms. Sullivan would remain on the record and that “counsel should be free to use the legal arguments contained in that document.” Mr. Hart was subsequently notified that he had the right to appear in person or by videoconference on his appeal. [ 31 ] No request was received from Mr. Hart to appear in person on his appeal. Arrangements were made for a videoconference link in case he chose at the last minute to participate by that method.

When the case was called on June 6, he did in fact appear by videoconference and spoke to a number of procedural issues. It is fair to say he appeared lucid and engaged and seemed fully to understand the issues in the case, both procedural and substantive. He confirmed that he no longer wanted Ms. Sullivan to represent him. He gave an apparently rational reason for that decision. He intimated he might want another counsel to represent him but gave no indication that he had actually approached anybody.

He also said that he did not have access in prison to the appeal book, transcripts and facta that had been filed and that he needed that material to properly prepare for the appeal. [33] The appeal panel treated Mr. Hart’s submissions as a request for a postponement of the appeal to enable him to review the appeal materials and possibly instruct counsel after he had completed his review. The amicus supported that position. The panel accordingly

decided to give Mr. Hart “one further opportunity” to have counsel represent him on the appeal. See R. v. Hart 2011 NLCA 37 at para. 8 . The Crown was directed to deliver the appeal materials, including the recordings of Mr. Hart’s statements made during the sting operation, to Mr. Hart in prison and the matter was adjourned to June 28, 2011 for a status update, with the direction that if Mr. Hart wished to have other counsel to represent him on the appeal he would have to cause that counsel to appear on the status hearing and confirm his or her engagement.

It was recognized that the appointment would be made under s. 684 of the Criminal Code with fees paid, as per Mr. Hart’s request, by the Attorney General and not by the legal aid commission. The Deputy Registrar subsequently sent a letter to Mr. Hart confirming these developments. [34] When the matter was called on June 28, 2011, Mr. Hart refused to appear even though videoconference facilities were in place to allow for his participation. Crown counsel advised the panel that, for various reasons including a postal strike, delays had been experienced in delivering the appeal materials to Mr. Hart.

Because the panel could not be sure as to whether Mr. Hart’s non-appearance (he refused to communicate with the Court or prison officials) was due to the fact that he had not received the material as promised or for some other reasons, the panel enlarged the matter to July 27, 2011 to ensure that Mr. Hart had an opportunity to review the materials. [35] Crown counsel advised the Court that the written materials were subsequently delivered to Mr. Hart. With respect to the recordings of Mr. Hart’s statements, the Court was advised that members of the RCMP attended at the prison to allow Mr.

Hart to view those recordings on a laptop computer. Mr. Hart refused to leave his cell. In a letter written at the Court’s request by Keith Fowler, Security Intelligence Officer at Atlantic Institution, the following description is given of what transpired: I then proceeded to [Mr. Hart’s cell] and spoke to him through his cell door. I asked him if he was coming to meet with his visitors to review the disclosure regarding his appeal. He walked to his cell door and shook his head up and down signifying NO. I told him this is for your benefit to review this information and I am not going to be back to ask again.

This is your last chance to go. He shook his head No again and went and lay down on his bed. [36] In a letter written by Mr. Hart and addressed to the Court dated June 15, 2011 but only received in July, Mr. Hart had asked that he be allowed to review the recordings of his statements without any police, prison guards or inmates present. Because this procedure had apparently not been followed, the Court directed that a further opportunity be given to Mr. Hart to review the material in private. The Court was advised that this was done but he still refused to review the material.

He also indicated, in response to a question from the Security Intelligence Officer, that he would not be participating in the hearing on July 27. [37] Shortly before the July 27 hearing, Jennifer Hart filed her application to be appointed guardian ad litem for Mr. Hart. At the hearing, counsel for Mrs. Hart appeared and asked for an opportunity to make submissions on the legal issues involved. Mr. Hart did not appear. It was not clear as to whether Mr. Hart was aware of the guardianship application. (It is clear, however, that counsel for Mrs. Hart, at her request, attempted to contact Mr.

Hart to inquire whether he was prepared to have them act for him, but he did not respond.) Because of this and because of the nature of the issues potentially engaged in the application, the panel set September 15, 2011 for the hearing. The Assistant Deputy Registrar subsequently wrote to Mr. Hart advising him of these developments and telling him he had a right to be heard, either in person, by videoconference or by counsel and to file written submissions. The letter stated in part: … Your absence makes it difficult to understand your intentions with respect to the appeal.

For example, are you actively seeking counsel to represent you or do you intend to represent yourself on the appeal or do you intend not to participate at all? The Court wants to do what is in your best interests and in the public interest but it is more difficult to do that when your intentions are not made clear. … The Court expressed concerns about the nature of the application, particularly whether the Court had the jurisdiction (that is, the legal authority) to make such an order and whether Mrs. Hart had the standing (that is, the legal right to be heard) to make such an application.

These are important issues that require careful consideration. The Court also expressed concern about the possible delays that might result if these legal questions take a long time to be resolved. Your unwillingness to communicate with the Court also makes it more difficult to decide how to address the implications of the application in the light of your wishes and intentions. [38] This letter was sent by fax and by mail. The mailed version was returned to the Court from the prison unopened by Mr. Hart. The parties were directed to provide Mr. Hart with copies of all material filed in respect of the application.

THE GUARDIANSHIP APPLICATION [39] It is against the foregoing backdrop that the guardianship application has to be assessed.

[40] After discussion with counsel, the following issues were identified as flowing from the application: 1. Does Mrs. Hart have standing to apply for an appointment as guardian ad litem in a criminal proceeding? 2. Does the Court have jurisdiction to appoint a guardian ad litem in a criminal proceeding through (to the extent these sources of jurisdiction are distinct): (

a) the Judicature Act ; (

b) the Rules (criminal or civil); (

c) its inherent jurisdiction? (

d) its power to control its own procedure? (

e) an original jurisdiction that is necessary and incidental to its power to hear and decide appeals? 3. What is the threshold of incompetence at which a guardian ad litem may be appointed in a criminal proceeding? 4. If that threshold is met, when do the interests of justice require the appointment of a guardian ad litem in a criminal proceeding? 5. If a guardian ad litem should be appointed for Mr. Hart, should Mrs. Hart be that guardian? 6.(

a) Does the Court have jurisdiction to order, in a criminal proceeding, production to a proposed guardian ad litem of medical records relating to an inmate in a penitentiary outside Newfoundland and Labrador and which were generated as a result of the application of mental health legislation in another province? (

b) If so, what does the applicant for the records have to establish to justify an order for production? POSITIONS OF THE PARTIES (

a) The Applicant (Mrs. Hart) [41] Counsel for Mrs.

Hart submitted, in essence, that the Court had jurisdiction to make the appointment either through the adaptation, in the criminal context, of the civil rules of court providing for appointment of guardians ad litem as a result of the application of the “gap” principle recognized in rule 27 of the Supreme Court of Newfoundland and Labrador – Court of Appeal Criminal Appeal Rules (2002), SI/2002-96, or through the power of the court to control its own process in respect of any matter that is necessary or incidental to its power to hear and decide appeals fairly and properly. [42] Counsel submitted that as a person related to Mr.

Hart and interested in the outcome of the appeal she should have standing to apply and, in fact was the right person to be appointed. She has consistently been supportive of Mr. Hart’s appeal and has advocated to have the appeal heard and for Mr. Hart to have assistance. Her concerns were noted as early as Wells, C.J.N.L.’s decision appointing the

amicus curiae. See 2009 NLCA 10 at para. 34. [43] As to the test to be applied, counsel suggested it is a low threshold, namely, the test of “person under disability” which is basedon incapacity of “managing his or her property of affairs”, as found in rule 1.03 (

l) and (

o) of the Rules of the Supreme Court, 1986. Hesays that even though no up-to-date medical information has been presented on the application, Mr. Hart’s beliefs in a continuing stingoperation and his bizarre behaviour in choosing to remain in his cell and not participate in the court process, coupled with the fact that hedid not exhibit this behaviour or have these beliefs when he was receiving treatment in Shepody Healing Centre, is sufficient for theCourt to conclude that he is not acting rationally and is incapable of looking out for his own interests. (

b) The Crown [44] Crown counsel submits that the source of the Court’s jurisdiction to deal with mental health issues of an accused or appellantmust be found in the provisions of the Criminal Code. He points to the provisions respecting assessment of fitness to stand trial anddetermining of criminal responsibility and says that occupies the field, as it were. [45] Counsel further submits that even if the Court has jurisdiction, in the unusual circumstances of this case, to appoint a guardian,the threshold for appointment is high.

It should be equated with the test for fitness to stand trial as it is defined in s. 2 of the CriminalCode, adapted to recognize that the issue is arising on appeal rather than at trial. He says that all that the appellant must meet is the“limited cognitive capacity” test to understand the process and communicate with counsel, as discussed in R. v. Whittle, (SCC), [1994] 2 S.C.R. 914.

As observed by Sopinka, J. in that case at p. 934, “it is not a prerequisite that [the accused] be capable ofexercising analytical reasoning in making a choice to accept the advice of counsel or in coming to a decision that best serves herinterests”. Crown counsel argues that, notwithstanding Mr.

Hart’s committal in the past to the Shepody Healing Centre and his refusal toparticipate in many of the hearings, there is no medical evidence that he is presently suffering from a mental disorder and in fact hisappearance on June 6, where he made his wishes known regarding counsel, does not demonstrate that he does not meet the limitedcognitive capacity threshold. [46] Counsel further argues that even if the appointment of a guardian is indicated, Mrs. Hart is not the appropriate appointee. Hepoints to the fact that she is the mother of the two girls Mr.

Hart has been convicted of murdering and while she may at the moment besupporting Mr. Hart there is no guarantee that would not change once she gets further involved, through counsel appointed by her, in thedetails of the case. She is not therefore a sufficiently neutral or disinterested person to be entrusted with discharging the duties ofguardian. (

c) The Amicus Curiae [47] The amicus curiae takes the position, relying on the obiter comments of Wells C.J.N.L. in R. v. Hart, 2009 NLCA 10 at para. 34,that the Court ought to order an assessment under sections 672.11 and 672.12 of the Criminal Code to determine if Mr. Hart is fit toinstruct counsel for the purposes of the appeal and to participate in the appeal process. He says that the threshold for ordering such anassessment is low and such orders are routinely made in Provincial Court on first appearances based on the judge’s assessment of thesituation without necessarily having any medical evidence.

He says that Mr. Hart meets that test. [48] While recognizing that the language of s. 672.11 and in the definition of “unfit to stand trial” in s. 2 of the Code, with itsreferences to “trial” and “before verdict,” does not fit easily with the appeal process and that other cases question its applicability in theappellate context (see, e.g. R. v. Ta (2002), (ON CA), 164 C.C.C. (3d) 97 (Ont.

C.A.), per Rosenberg J.A. at paras.25-27), amicus nevertheless submits that the Court, in exercise of its power to control the appeal process could and should fashion aprocedure to enable an assessment to be undertaken. [49] Amicus curiae further recognized that the engagement of the fitness assessment provisions of the Code could involve adetermination, following the assessment, that the appellant is not fit to conduct his appeal and that the result might be confinement in amedical facility for further treatment until he is fit. He says, nevertheless, that if that is what is required, it is in Mr.

Hart’s interests thatthat happen. If he receives further treatment and ultimately becomes fit, then he will be able to exercise a properly informed andmedically sound decision as to whether to have counsel represent him – something which the amicus says he may not be able to do atpresent. [50] The amicus stressed, as did counsel for Mrs. Hart, the importance of Mr. Hart having appropriate advocacy on his appeal. He

emphasized that his role in the appeal had limitations and that not having a solicitor-client relationship with Mr. Hart has hampered hisability to present the case in the same way a counsel fully briefed by Mr. Hart and with access to all of the trial materials would be ableto do. He referred to the comments of Lamer, C.J.C. in R. v.

Swain, (SCC), [1991] 1 S.C.R. 933 at pp. 970-972: [34] This Court has, on numerous occasions, acknowledged that the basic principles underlying our legal system are built on respect forthe autonomy and intrinsic value of all individuals… This Court has also recognized the constructs of the adversarial system as a fundamental part of our legal system. In Borowski v.

Canada(Attorney General ) [citations omitted] Sopinka, J., in analyzing the doctrine of mootness, stated … : The first rationale for the policy and practice referred to above is that a court’s competence to resolve disputes is rooted in the adversarysystem.

The requirement of an adversarial context is a fundamental tenet of our legal system and helps guarantee that issues are well andfully argued by parties who have a stake in the outcome. … [35] Given that the principles of fundamental justice contemplate an accusatorial and adversarial system of criminal justice which isfounded on respect for the autonomy and dignity of human beings, it seems clear to me that the principles of fundamental justice mustalso require that an accused person have the right to control his or her own defence … (

d) The Public Trustee [51] The Court directed that the Public Trustee be notified of the application and invited him to appear and, if called on, to makerepresentations on the possible role of the public trustee in these proceedings and, in particular, whether Mrs. Hart would be anappropriate person to occupy the position of guardian if one were to be appointed. [52] Counsel appeared on behalf of the Public Trustee and took the position that his authority under the governing legislation did notextend to acting as guardian in criminal proceedings.

In light of the decision in this case, it is not necessary to address this submission. DECISION [53] After careful consideration of the matter, I have concluded that the application to appoint Mrs. Hart as guardian ad litem for Mr.Hart should be dismissed. In the view I take of the matter, despite the thorough and careful arguments that have been presented, it is notnecessary to resolve most of the differing positions taken by counsel in argument. [54] Assuming, without deciding, that the Court has jurisdiction to appoint a guardian ad litem in these circumstances, I haveconcluded that when the interests of Mr.

Hart in having oral advocacy on this appeal are balanced against the interests of the public (andMr. Hart) in having the appeal issues decided in a timely way, the interests of justice favour proceeding with the appeal without furtherdelay. CONSIDERATIONS [55] Four and a half years have now elapsed since a notice of appeal was filed on behalf of Mr. Hart. By any standard, that is aninordinate amount of delay for an appeal to be heard.

The appointment of a guardian ad litem at this stage, or even the ordering of anassessment of his mental condition and subsequent proceedings leading to a judicial determination of his mental capacity, wouldundoubtedly delay the hearing of the appeal even further. [56] Mr. Hart has had the benefit of legal counsel: first, counsel appointed by the legal aid commission; and later, counsel from theprivate bar appointed pursuant s. 684 of the Code.

He has also had the benefit of the appointment of amicus curiae whose mandate was “to ensure that the appeal proceeds expeditiously, and that all possible arguments in support of the proposed grounds of appeal, and anyfurther appropriate grounds of appeal, are properly presented to the Court”: R. v. Hart, 2009 NLCA 10 at para. 35(c).

[57] The amicus has filed an extensive brief of legal argument. Ms. Rosellan Sullivan, before her discharge as counsel, filed acomprehensive factum on Mr. Hart’s behalf identifying issues beyond those in amicus’ brief. In fact, she had to seek, and did obtain,dispensation from the Chief Justice to exceed the page limit for a factum as stipulated in the rules of court so as to include the totality ofher argument. All of this written material is before the Court and will be considered on the appeal. [58] The amicus is fully prepared to appear on the appeal and make any oral submissions as may be required.

It is true that unlessother counsel is engaged by Mr. Hart or on his behalf, he will not have the benefit of oral advocacy at the appeal hearing. He is not in thesituation, however, of having nothing said or written on his behalf. [59] Much of the delay in processing the appeal has resulted from Mr. Hart’s lack of cooperation in identifying counsel to act for himfollowing his discharge of legal aid counsel and from his unwillingness to participate in proceedings and make his wishes known.

It isnot clear, even at this hour, whether he still wishes other counsel to represent him or whether he intends to appear and argue the appealhimself, as is his right, or whether he has washed his hands of the whole process and does not care what happens. Even following thehearing on June 6, 2011, when he spoke cogently about the possibility of engaging other counsel, he has not taken any steps to engageanybody or to make any requests to the Court in that regard despite being invited and even encouraged to do so.

If the appeal were to bepostponed further, there is no guarantee, or perhaps not even any reasonable prospect given the history of the matter to date, that othercounsel would be engaged by Mr. Hart. As was pointed out in argument, we are today in substantially the same position relative toadvancing the appeal as we were when amicus was appointed two and a half years ago. [60] A litigant is not entitled to continuous postponements to allow for the substitution of counsel simply on the ground that if heengages someone else that person may think of some additional argument that the original counsel did not think of.

In this case, there isnothing to suggest that counsel for Mr. Hart did not act fully professionally in researching the case and preparing the factum that hasbeen filed. It has to be presumed in the absence of any indication to the contrary that all proper steps, including review of trial counsel’sfile, were taken by the counsel in performing her duties. There is nothing to suggest that there is any information available to indicatethat a defence of not criminally responsible on account of mental disorder was available to Mr. Hart but not advanced at trial.

It is truethat there is a reference in the factum to an application for admission of fresh evidence on the appeal but that appears to relate to an issuerelating to the breakdown of the solicitor-client relationship at trial as it affected the continuation of the trial.

This matter is, in any event,dealt with in argument in the factum. [61] There is also nothing to suggest that the advancement of any of the grounds of appeal in counsel’s factum is at variance with Mr.Hart’s current view of the case. [62] Mental competency issues aside, there will come a point when delays caused by a litigant dismissing counsel, failing to takereasonable steps to engage counsel or otherwise bringing about postponements will be regarded as attempts simply to delay resolution ofthe case.

At that point, the litigant may be regarded as deliberately trying to frustrate the process and may be required to proceed with thecase without the assistance of counsel. [63] Of course, in this case, it is being suggested that Mr. Hart’s mental state is such that he is not acting rationally and that the stepshe has taken, or not taken, as the case may be, cannot be attributed to him for the purpose of treating him as improperly delaying theproceeding and disentitling him to further indulgences to allow for possible engagement of other counsel.

It is not without significance,however, that the officials at Atlantic Institution who see his behaviour first hand, and the medical personnel who are available toobserve and assess Mr. Hart, have apparently not taken any steps to have him returned to Shepody Healing Centre for further treatmentnotwithstanding all the events that have happened over the past year. [64] The amicus curiae also pointed out that his appointment was made over Mr. Hart’s objections and that the appointment ofcounsel by a guardian ad litem must equally be considered to be over his objection or at least without his consent.

If a litigant meets thetest of fitness to stand trial he has a right under s. 10(

b) of the Charter to instruct counsel personally. In Vescio v. The King, (SCC), [1949] S.C.R. 139, Taschereau, J. observed at p. 142: It is a fundamental principle of our criminal law that the choice of counsel is the choice of the accused himself, that no person chargedwith a criminal offence can have counsel forced upon him against his will… [65] The best way of achieving this, argues amicus, is to order an assessment of Mr. Hart’s fitness to conduct his appeal and ifnecessary get Mr. Hart the treatment he needs so that, at some point in the future, he may be able to properly exercise a choice as to

whether he wishes counsel to represent him. Until that point arrives, the appointment of a guardian or proceeding with the appeal will both potentially trample on Mr. Hart’s rights. [66] I recognize the importance of respecting the autonomy of a litigant with respect to the decision whether to engage counsel. I also recognize the importance of advocacy by counsel on an appeal. Equally important, however, is the public interest in ensuring that, if an appellant has an arguable basis for having verdicts overturned on appeal, he not remain incarcerated for any period longer than necessary. It is obviously in Mr.

Hart’s interest and the interest of the public generally that the appeal be dealt with promptly. These competing interests must be balanced against each other. None is absolute or necessarily trumps the others in every circumstance. [67] The possibility that an appellant may not be mentally fit to conduct his appeal does not mandate that the appeal process come to a halt until fitness is investigated or established. In R. v.

Ta , Rosenberg J.A. observed at para. 25 that “an appellant need not be competent for this court [i.e. the Ontario Court of Appeal] to have the jurisdiction to deal with his or her appeal.” Thus, even if Mr. Hart were mentally incompetent, in the sense of not meeting the fitness to stand trial test, the appeal can proceed.

Even if his decision to dismiss his counsel, not to appoint other counsel and generally not to cooperate with the process is irrational, such an irrational decision ought not to be allowed to impair his interest in having the merits of the appeal, and his rights that flow therefrom, determined. [68] The potential gain from further delay resulting from possible appointment of a guardian or conducting fitness assessments does not overshadow, in the circumstances of this case, the importance of having the appeal heard, given the long delay that has already elapsed. Mr.

Hart’s legal rights to proper advocacy have not been cast to the wind. He will have the written and oral submissions of amicus as well as the written submissions of his former counsel before the Court. He also has the right under s. 688 of the Code , if he desires it, to be present at his appeal and to be heard personally. [69] It is true, as counsel for Mrs.

Hart submitted, that the amicus in Ta had the advantage of having been counsel for the appellant before he was discharged as counsel and reappointed as amicus , and therefore had a full knowledge of the trial file and the case generally, within a solicitor-client relationship – something the amicus in the current case does not have. However, Mr. Hart has had the benefit of counsel’s preparation of the written appeal and, as noted earlier, one has to assume, without any indication to the contrary, that access to Mr.

Hart within a solicitor-client relationship by his counsel during preparation of the factum would have enabled counsel to express any and all grounds of appeal that were reasonably capable of being advanced. DISPOSITION [70] Accordingly I would dismiss the application. [71] The appeal will proceed on the dates scheduled unless counsel for the Crown or the amicus curiae advises the court that they wish the hearing dates adjusted. J. D. Green, C.J.N.L. I concur: L. D. Barry, J.A.

I concur: M. F. Harrington, J.A.