COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Amos, 2012 ONCA 334

DATE: 20120522

DOCKET: C52012

Winkler C.J.O., Laskin and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shawn Anthony Amos

Appellant

Russell Silverstein and I. Grant, for the appellant

Frank Au, for the respondent

Heard: April 5, 2012

On appeal from a conviction of first degree murder entered by Justice J. Robert MacKinnon of the Superior Court of Justice, sitting with a jury, on November 13, 2009.

Watt J.A.:

[1] The appellant and two others were tried together on a single count of first degree murder.

[2] At the end of the Crown’s case, some five or six weeks after the proceedings before the jury had begun, the trial judge granted a motion by the appellant’s trial counsel to be removed from the record, dismissed the appellant’s application for an adjournment to permit him to retain new counsel, and appointed the appellant’s former trial counsel as amicus curiae.

[3] The jury found the appellant guilty of first degree murder. He seeks a new trial on the ground that the trial judge erred in refusing his adjournment request and appointing as amicus curiae the very lawyer in whom the appellant had lost confidence and had discharged.

[4] I would not give effect to either ground of appeal.

The First Ground: Refusal of an Adjournment

[5] Some background is essential to assess the allegation of error in refusing the appellant’s adjournment request.

[6] When only a handful of witnesses remained in the Crown’s case, defence counsel advised the trial judge that when the Crown’s case concluded he might have to withdraw as defence counsel. The appellant confirmed that he wished counsel to remain to conduct his defence until the conclusion of the Crown’s case.

[7] During his application to be removed from the record, defence counsel made it clear that irreconcilable differences had developed between him and the appellant. These differences involved instructions from the appellant about the conduct of the defence that counsel could not, in good conscience, follow. The appellant confirmed that he wished his lawyer to be removed as his counsel. The trial judge made the order.

[8] The trial judge encouraged the appellant to obtain new counsel. He provided the names of senior criminal lawyers, a number of local counsel, and contacted Legal Aid to urge them to give prompt consideration to any requests involving the appellant’s case. The trial judge adjourned proceedings to permit the appellant to get new counsel.

[9] The only lawyer the appellant tried unsuccessfully to contact was the lawyer who had represented him until the conclusion of the preliminary inquiry. He had discharged her because she lacked experience “in a murder trial”. The trial judge ensured that the appellant and his former counsel met. The lawyer indicated that she would be prepared to assume carriage of the appellant’s defence, but that she would not be available for at least three weeks and would not accept the retainer at Legal Aid rates.

[10] The trial judge dismissed the appellant’s request for an adjournment of the trial proceedings for at least three weeks to permit his former counsel to re-acquaint herself with the case and proceed with the defence.

[11] The appellant contends that the trial judge made several errors in exercising his discretion to refuse the adjournment request. Among the errors alleged are these:

i. finding the adjournment request was a “sham” in the absence of any supportive evidence and in the face of a contrary finding that a genuine breakdown had occurred in the solicitor-client relationship;

ii. unfairly requiring the appellant to continue his pursuit of new counsel when he had already identified his counsel of choice;

iii. finding that the appellant was “sophisticated”, thus capable of conducting his own defence to a charge of first degree murder; and

iv. assigning too much weight to the interests of the co-accused and failing to consider alternate remedies to safeguard their interests.

[12] In my view, the trial judge was entitled to find that the adjournment request was a “sham”. I say so for several reasons.

[13] First, the appellant, for all practical purposes, ignored the trial judge’s offers of assistance when provided with names of local counsel and senior criminal law practitioners. The appellant did not contact Legal Aid about new counsel and only spoke to his former counsel when the trial judge summoned her to meet with the appellant at the court house. Instead, the appellant wanted to engage his former counsel whom he had discharged because of her lack of experience in murder cases.

[14] Second, the appellant had retained trial counsel, whom he sought to discharge, after the preliminary inquiry. He retained trial counsel because of trial counsel’s experience in murder cases. The trial judge characterized trial counsel’s conduct of the trial as “entirely focused, appropriate and effective.”

[15] Third, trial counsel made it clear that underlying the irreconcilable differences between counsel and client was the inability of counsel “in good conscience” to follow the appellant’s instructions. It is a reasonable inference from these carefully-chosen words of an experienced trial lawyer that the appellant’s instructions were incompatible with counsel’s professional ethical obligations.

[16] Fourth, the appellant blamed trial counsel for “abandoning him”. The truth of the matter was that the appellant discharged trial counsel. Failing to adhere to instructions that contravene a lawyer’s ethical obligations cannot be characterized as an abandonment of a client by any standard of measure.

[17] In the end, I am satisfied that the combination of factors just described constituted an adequate evidentiary foundation for the trial judge’s finding that the appellant’s request for an adjournment to permit him to continue the trial with former counsel whom he had rejected due to lack of experience was a “sham”.

[18] Further, I do not consider the finding that the adjournment request was a “sham” to be inconsistent with the finding that there had been a genuine breakdown in the relationship between the appellant and his trial counsel. The appellant discharged his trial counsel. In those circumstances, the trial judge was entitled to remove counsel from the record when his various resuscitative measures failed.

[19] An accused has an unfettered right to discharge his or her legal counsel at any time and for any reason. The appellant did so here. The trial judge had no authority to interfere with the appellant’s decision. In particular, the trial judge had no authority to force the unwilling appellant to continue to be represented by counsel whom he had discharged: R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 9.

[20] The trial judge had an obligation to ensure that the appellant understood the consequences of discharging trial counsel at the conclusion of the Crown’s case in a joint trial. The trial judge told the appellant about those consequences and arranged for him to receive independent legal advice on the same subject.

[21] The appellant’s unequivocal discharge of trial counsel left the trial judge with no real option other than to give effect to the discharge by permitting counsel to be removed from the record. The trial judge did have a discretion, however, to determine whether to grant the appellant an adjournment to permit him to continue the trial represented by counsel whom he had previously discharged due to her lack of experience in murder cases. The disagreement between former trial counsel and the appellant concerned the appellant’s instructions to introduce certain evidence that former counsel could not “in good conscience” put forward. In these circumstances, the trial judge could reasonably infer that what the appellant sought was a “mouthpiece”, a lawyer the appellant considered would follow his instructions unconstrained by ethical considerations. Such a conclusion was reasonably available in the circumstances, warranted the characterization “sham”, and was not inconsistent with the earlier finding about a genuine breakdown in the solicitor-client relationship between the appellant and his trial counsel.

[22] In the end, the trial judge was obliged to consider whether it was in the interests of justice to grant the appellant’s request for an adjournment of a joint trial with a jury for at least three, and more likely four to five weeks. He declined to do so. After a careful review of his reasons, considered in their entirety, I am not prepared to say that his decision reflects error. The trial judge did not misapprehend relevant evidence, take into account improper considerations or assign unwarranted weight to the relevant factors.

[23] This ground of appeal fails.

The Second Ground: The Selection of Amicus

[24] The appellant advances a second ground of appeal. He says that the trial judge was wrong to appoint his former trial counsel as amicus curiae after that counsel had been removed as solicitor of record.

[25] I do not agree.

[26] At first, the appellant’s former counsel resisted the suggestion that he act as amicus. The trial judge then defined the role of amicus to include:

i. objecting to perceived legal errors;

ii. assisting the appellant in drafting a statement of the defence position;

iii. assisting the appellant in subpoenaing any defence witnesses; and

iv. advising the appellant on any questions of law.

[27] The role of amicus, as the trial judge defined it, did not include the examination of the appellant or any defence witnesses, or a closing address to the jury.

[28] In the end, former counsel agreed to accept the appointment in accordance with the proposed terms. Indeed, the amicus mandate was expanded at the appellant’s request when the appellant sought further assistance. The trial judge made it clear that, if any conflicts arose between amicus and the appellant, he (the trial judge) would deal with them. None emerged.

[29] In the circumstances of this case, I see no error in the amicus appointment. No bright line rule bars the appointment of former counsel as amicus. An accused need not have confidence in amicus with whom she or he has no solicitor-client relationship. The description amicus curiae is no accident. What occurred here did not compromise the actual or apparent fairness of the appellant’s trial, nor did it inhibit the appellant in making full answer and defence to the charge. The appellant made it clear that he decided, after a weekend’s reflection, not to testify or call defence witnesses.

[30] I would dismiss the appeal.

Released: May 22, 2012 “JL”

“David Watt J.A.”

“I agree W. Winkler C.J.O.”

“I agree John Laskin J.A.”