Her Majesty the Queen v. Imona-Russel

[Indexed as: R. v. Imona-Russel]

Ontario Reports

Court of Appeal for Ontario

Lauwers, Pardu and Paciocco JJ.A.

April 1, 2019

145 O.R. (3d) 197 | 2019 ONCA 252

Case Summary

Charter of Rights and Freedoms — Fundamental justice — Counsel — State-funded counsel

Indigent accused charged with serious sexual offences. Pre-trial motion judge and trial judge dismissing accused's Rowbotham applications for state-funded counsel. Motion judge and trial judge appropriately considering accused's history of unreasonably discharging counsel and fact that amicus had been appointed for him. Trial judge expanding role of amicus and engaging in careful and respectful trial management. Refusal to grant Rowbotham order not resulting in miscarriage of justice.

Criminal law — Trial — Amicus

Amicus appointed for accused before trial. Trial judge dismissing accused's application for state-funded counsel and expanding role of amicus so that amicus could advise accused on legal issues, make legal submissions and cross-examine Crown witnesses. Accused retaining his own ability to question witnesses and make submissions. Crown undertaking to treat communications between accused and amicus as confidential. Appointment of amicus and expansion of amicus' role enuring to accused's advantage and ensuring trial fairness in circumstances of this case.

Facts

The accused was convicted of attempted aggravated sexual assault, sexual assault (x 2), assault with a weapon, threatening death, assault causing bodily harm and assault. The accused knew that he was HIV-positive since about June 2003 but did not disclose his status to the complainant in circumstances that amounted to a breach of trust. He brutally raped the vulnerable complainant, knocked her to the ground, assaulted her and then put a drill to her head, while threatening to kill her. She was traumatized by the attack and the terror he deliberately inflicted. On another occasion, he assaulted the same complainant, choking her and then raping her. He committed further offences while on bail for these charges, one of which resulted in his later conviction for murder. The trial judge correctly held that denunciation and deterrence were the primary sentencing principles in cases involving HIV-positive sexual assaults.

He was initially granted a legal aid certificate, but he was denied a change of counsel after retaining and discharging six lawyers, one twice. His Rowbotham application for the appointment of state-funded counsel was dismissed by the pre-trial motion judge and again by the trial judge on the basis of his history of unreasonably discharging counsel. The motion judge and the trial judge also took into account the fact that amicus had been appointed for the accused. The accused asked the trial judge to appoint amicus as his counsel and to have the Attorney General pay the cost. Given the accused's history regarding counsel, the trial judge declined to do so but he expanded the role of amicus, permitting him to advise the accused on legal issues, make legal submissions and cross-examine Crown witnesses. The trial judge made it clear to the accused that amicus was not his lawyer, and the accused retained the ability to question witnesses and make submissions himself. The Crown undertook to treat communications between the accused and amicus as confidential. The accused appealed his conviction and his sentence of nine years' imprisonment, less a credit for pre-trial custody.

Decision

Held, the appeal should be dismissed.

The trial judge made no palpable and overriding error in convicting the accused, and the sentence imposed was fit and the trial judge made no error in principle.

The accused's history of unreasonably discharging counsel and the fact that amicus had been appointed for him were appropriate considerations in determining whether to grant a Rowbotham order. It was permissible for the trial judge to tailor the scope of amicus' activities in the manner he did. The concerns that an amicus order defining a role that closely resembles the role defence counsel would usually play might encroach on the right of an accused to proceed without counsel, might blur the roles played by the trial judge, Crown and defence counsel, and might undermine a provincial legal aid scheme did not arise in the circumstances of this case. The accused had no role in selecting amicus, it was made clear to him that amicus was not a substitute for counsel, and he was permitted to make his own submissions and to question witnesses. Given the accused's inability to direct or dismiss amicus, the role assigned to amicus was sufficiently different from the role that Rowbotham counsel would have assumed that there was no realistic concern that the amicus order undermined the denial of the Rowbotham application. The elements of the amicus order enured to the accused's benefit and assisted in ensuring that the trial proceeded smoothly and fairly. It remains open to trial judges to appoint amicus where no Rowbotham appointment should be made, as in this case, or to appoint amicus to function alongside a Rowbotham appointee, where there is a real risk that the accused will discharge counsel as a way of disrupting the trial. The refusal of the motion judge and the trial judge to appoint Rowbotham counsel did not result in a miscarriage of justice. There was no unfairness or appearance of unfairness in the accused's trial, in large measure because of the amicus appointment and the trial judge's careful and respectful trial management.

Judgment

LAUWERS J.A.:

I. Conviction

[1] The appellant was convicted of attempted aggravated sexual assault, sexual assault (x2), assault with a weapon, threatening death, assault causing bodily harm and assault. He was given a global sentence of nine years, and was registered as a sex offender. The appellant appeals both his conviction and his sentence, and seeks a new trial.

[2] The primary ground of the conviction appeal concerns his unsuccessful Rowbotham applications. I turn to that after addressing the appellant's other arguments that the conviction reasons and the sentencing reasons were deficient.

Credibility and Evidence

[3] The appellant testified at trial that he did not commit the offences as charged. His evidence, if believed, would have rendered him not guilty on all counts. However, the trial judge found that the appellant was not a forthright witness; his evidence had many internal inconsistencies; it was not consistent with the evidence of most of the other witnesses, nor with the objective evidence.

[4] With respect to the attempted aggravated assault and sexual assault charges, the appellant knew he was HIV positive around June 2003. The trial judge reviewed the elements of the mens rea and actus reus set out in R. v. Williams, 2003 SCC 41. He rejected the appellant's testimony that he disclosed his HIV positive status to the complainant in June 2003 and did not have sex with her thereafter. The trial judge found instead that the Crown had proved beyond a reasonable doubt that the complainant first learned that the appellant was HIV positive almost two years later in late March 2005. She would not have consented to sex had she known he was HIV positive. There was evidence they had unprotected sex after the appellant learned he was HIV positive although he denied it.

[5] With respect to the assault, threats and sexual assault endangering life relating to the March 3, 2005 incident, the trial judge accepted the complainant's evidence that the appellant knocked her to the ground and assaulted her, and then put a drill to her head and threatened to kill her. He relied on physical evidence such as the drill, the damage done to the wicker chair into which the appellant tossed the drill, and the complainant's physical injuries. However, with respect to the aggravated assault charge, there was insufficient evidence that the sex was unprotected. The trial judge found the appellant guilty of the lesser and included offence of sexual assault.

[6] With respect to the assault and sexual assault endangering life relating to the March 13, 2005 incident, the trial judge accepted the complainant's evidence that the accused attended at her apartment, assaulted her, choked her and then raped her. This was corroborated by material evidence, in particular, a pair of panties laden with his semen that was recovered from her laundry hamper a few days later. The trial judge found none of the appellant's alternative explanations for the presence of his semen to be plausible. However, the trial judge found there was no evidence that this act of unprotected sex had endangered the complainant's life, because she might already have been infected. He found the appellant guilty of the lesser and included offence of sexual assault.

[7] The appellant submits that the trial judge's credibility findings, which preferred the complainant's evidence, were unreasonable. He argues that the significant inconsistencies in her evidence, some of which defied common sense, rendered her evidence incredible and unreliable. In oral argument, the appellant argued that he and the complainant had friendly relations after the alleged March 2005 assaults, showing that she was not credible.

[8] I would reject the appellant's arguments. The trial judge carefully detailed his findings and his reasons for them. The trial judge said: "[b]ecause of all of these factors that I have outlined that negatively impact on both the reliability and credibility of [the complainant], it is necessary to look at whether there is any objective evidence that confirms her evidence". Knowing of the infirmities in the complainant's evidence, the trial judge only accepted her evidence if it was corroborated by other objective evidence.

Disposition of the Conviction Appeal

[9] The appellant has not demonstrated that the trial judge made a palpable and overriding error in his assessment of the evidence. I would dismiss his conviction appeal.

II. Sentence

[10] The Crown proposed eight to ten years in Federal penitentiary less pre-trial custody at a credit rate of one to one. The defence proposed a sentence of four to six years less pre-trial custody with a two to one credit for pre-trial custody and a three to one credit for time spent in segregation.

[11] The trial judge sentenced the accused to a global sentence of nine years and gave him credit for five years and 15 days of time served, which was calculated at the rate of 1.5 to one credit on three years and 133 days of actual incarceration. This left the accused with about four years left to serve on this sentence. The trial judge stayed the March 13, 2005 sexual assault count on the Kienapple principle. The Crown pointed out that this sentence is being served concurrently with the appellant's separate sentence on a murder conviction, which will be completed in 2031, thus rendering this sentence appeal somewhat moot.

[12] The trial judge identified several mitigating factors in his sentencing reasons: the appellant had no previous criminal record; he was gainfully employed in his home country before immigrating to Canada; and he had served three years and 133 days of pre-trial custody.

[13] The trial judge identified several aggravating factors: the appellant, after learning he was HIV positive, did not advise the complainant; given the nature of their relationship, his actions were a breach of trust. The trial judge also noted the appellant's use of gratuitous violence and a weapon. He raped the complainant without a condom and terrorized her, with traumatizing effects. However, since it was possible that the complainant had contracted HIV before the appellant knew he was HIV positive, the fact that she was later found to be HIV positive was not taken to be an aggravating factor.

[14] The trial judge also observed that while the appellant was out on bail, he breached bail and was re-arrested. He was sentenced to a short period of jail on that breach, and then he was released on bail again. He was later charged with first degree murder.

[15] The trial judge identified the range of sentences in cases involving non-disclosure of HIV positive status as from one to 11 years. He did so after reviewing an exhaustive brief compiled by amicus of all the sentences in HIV positive sexual assault cases to the date of sentencing. The trial judge identified denunciation and deterrence as the primary objectives in such cases. He found that a lengthy penitentiary sentence was necessary to reflect the accused's conduct because he had attacked a vulnerable victim twice in a brutal fashion for his own sexual gratification. This led him to impose a sentence of nine years' imprisonment on the appellant.

[16] The appellant argues that the trial judge erred in relying on Williams in sentencing, because in that case there were many victims, which makes his sentence disproportionate. The trial judge did not refer to Williams directly in his sentencing reasons. Even assuming he did rely on Williams as Mr. Imona-Russel contends, the trial judge did not impose a disproportionate sentence. He was alive to the issue of proportionality, because he noted:

[I]n almost every case I was referred to the acts of sexual assault are consensual albeit the consent was falsely obtained without full disclosure of the HIV status of the accused. The facts in this case, involving Mr. Imona-Russel, are far more aggravating.

[17] Sentencing attracts appellate deference because it is an exercise of judicial discretion that the trial judge is best equipped to undertake given his familiarity with the facts and with the accused: R. v. Rezaie, at paras. 17-21; R. v. Shropshire, at paras. 46-50; R. v. M. (C.A.), at paras. 90-92; and R. v. Lacasse, 2015 SCC 64, at paras. 11, 49-51.

Disposition of the Sentence Appeal

[18] The appellant has identified no error in principle made by the trial judge, nor is the sentence disproportionate or outside the acceptable range. The sentence is fit. I would dismiss the sentence appeal.

III. The Rowbotham Appeal

[19] The appellant appeals the refusals of Nordheimer J. (as he then was) and the trial judge, to make a Rowbotham order (named after R. v. Rowbotham) to require the Attorney General to fund counsel of his choice.

[20] The appellant appealed these refusals immediately after they were rendered in 2008. This court quashed the appeal on March 5, 2009 on the basis that the refusal of a Rowbotham order is an interlocutory order over which this court has no jurisdiction: R. v. Imona-Russel, 2009 CarswellOnt 3503 (C.A.). The Supreme Court of Canada refused leave to appeal on June 1, 2009.

[21] Now that the trial process has run its course the Rowbotham appeal is properly before this court.

(1) The Decisions Under Appeal

(a) The Motion Judge's Ruling

[22] The procedural history leading to the Rowbotham applications is relevant. Legal Aid Ontario initially granted the appellant a legal aid certificate in September 2005. Over the following years, he retained and discharged six lawyers, one twice. Legal Aid Ontario's notice of refusal to yet another change of counsel stated that the appellant's reason to change did not meet its criteria. It also noted that amicus was appointed by Marrocco J. (as he then was) on May 14, 2008 as a precaution so that the trial could proceed smoothly.

[23] Sitting as pre-trial motion judge, Nordheimer J. dismissed the appellant's Rowbotham application on December 10, 2008. Although it was plain that the appellant, who faced separate serious charges, could not afford to retain counsel, the motion judge stated, at para. 17, that "the central issue that this application raises is whether an indigent accused is entitled, under the principle of trial fairness, to repeatedly discharge counsel and then require the state to bear the costs of retaining new counsel".

[24] The motion judge found, at para. 22, that the appellant was not so entitled:

[T]he right of an accused person to retain counsel of his or her choosing . . . is not absolute, however. It is subject to reasonable limitations. The applicant has on five occasions (arguably six) been given counsel of his choice and he has chosen to squander those opportunities. In my view, the applicant has, as a direct consequence of his own actions, disentitled himself to a Rowbotham order. That fact, coupled with the appointment of amicus curiae on each of these indictments, means that the applicant has also failed to establish that his fair trial rights will be infringed absent such an order being made.

(b) The Trial Judge's Ruling

[25] The appellant asked the trial judge to reconsider at the outset of trial several days later. The trial judge refused, on the basis that:

I am not satisfied that I have the jurisdiction to reconsider the decision of Nordheimer J. given last week on the Rowbotham application. Even if I did have jurisdiction, I have not been advised of any material change in circumstance, which would allow me to reconsider the matter afresh. For these reasons, the application to have a further Rowbotham application is dismissed.

[26] I note, parenthetically, that the trial judge erred in doubting his jurisdiction to reconsider the Rowbotham matter in light of the decision of the motion judge ten days earlier. It is always open to a trial judge to consider a Rowbotham application at the outset of the trial or even during the trial, even where the application has previously been rejected by a pre-trial motion judge or by the trial judge personally. Things might look different to the trial judge, when the exigencies of the situation and their practical implications call for a different result at a given point in the trial. However, in the absence of any material change, the trial judge did not err in refusing to reconsider the renewed Rowbotham application.

[27] In this case the trial judge expanded the role of amicus, Ferhan Javed, as suggested by the appellant. The amicus order appointed Mr. Javed:

• to advise the accused about points of law and legal issues;
• to discuss legal issues with the Crown on behalf of the accused;
• to speak to the court on behalf of the accused in relation to legal issues;
• to cross-examine the complainant.

The amicus order also provided that communications between amicus and the appellant "for preparation of pretrial applications and cross-examination are privilege[d]". The Crown consented to the amicus order.

[28] The trial judge explained the genesis of this order and elaborated on it further in reasons dated January 5, 2009 regarding the appointment of amicus. The context was the appellant's request, after seeing Mr. Javed in action, that he become his counsel. The appellant wanted, as the trial judge said, "to convert Amicus to his counsel and then per R. v. Rowbotham order the Ministry of the Attorney General to pay the cost".

[29] The trial judge actively considered the request but rejected it in light of the appellant's history of discharging counsel. He stated: ". . . I am not satisfied that it is appropriate to appoint Mr. Javed as trial counsel and relinquish his role as Amicus". He explained:

Unfortunately, Mr. Imona-Russel has demonstrated an inability to work with counsel as is highlighted by the fact that he has had five or six counsel on this file. He has discharged each and every one of them. Should I appoint Mr. Javed as counsel and he was to be discharged, the trial would be in jeopardy.

[30] The trial judge noted that it was his duty to ensure that the appellant had a fair trial, in light of his view that the case was "somewhat complex", since: "from my brief understanding is it involves allegations of infecting a woman with AIDS and that there will be medical evidence being called that will need to be challenged".

[31] This led the trial judge to expand the customary role of amicus, for which he provided a lengthy and careful explanation focused on the core principle of trial fairness:

While recognizing that Amicus is not counsel to the accused, the role of Amicus, I find, can be expanded to ensure trial fairness. See R. v. Cairenius, and R. v. Lee, (1988), 125 C.C.C, (3d), 363, Northwest Territories.

In this case, because of the nature of the sexual offences, with the consent of Mr. Imona-Russel and the Crown, I have already expanded the role of Amicus to allow Amicus to cross-examine the complainant. Obviously, to prepare the cross-examination, Amicus, Mr. Javed, must have discussions with the accused. Such discussions must remain confidential and will be treated by the Court as such.

Crown counsel, quite fairly, has also undertaken not to challenge the confidentiality of any such discussions in preparation for the cross-examination.

In order to ensure trial fairness, I am prepared to allow Amicus to cross-examine Crown witnesses, provided Mr. Imona-Russel indicates he wishes such assistance with any or all of the witnesses. We will address each witness separately to determine whether Mr. Imona-Russel wishes the assistance of the Amicus, Mr. Javed, in cross-examining any of the witnesses.

So it is clear, Mr. Javed, in his role of Amicus, will not be counsel for Mr. Imona-Russel. Should Mr. Imona-Russel wish assistance with the cross-examination, and Mr. Javed feels he is able to do so, Mr. Javed may conduct that cross-examination on behalf of Mr. Imona-Russel.

Since Mr. Javed is not counsel for Mr. Imona-Russel, Mr. Imona-Russel may ask any further questions, if he wishes to do so, after Mr. Javed has conducted the cross-examination. That will be with the exception, of course, of the evidence of the complainant, where there will be no such right for an accused to cross-examine the complainant directly.

To ensure that this expanded role of Amicus does not become blurred, we will approach each witness separately. With each Crown witness Mr. Imona-Russel will have to decide whether he wishes to cross-examine himself or he wishes the assistance of Mr. Javed, the Amicus to the Court.

I am satisfied that if we deal with Amicus in a fluid fashion such as this, submissions can be made on each witness to ensure that Mr. Imona-Russel receives a fair trial and receives the benefit of assistance where necessary with any of the witnesses.

(c) The Progress of the Trial

[32] The transcript shows that the trial proceeded on the basis set out in the trial judge's amicus decision. Amicus communicated with the appellant and conducted the cross-examinations as requested. Nonetheless, the trial judge's worry that the appellant would discharge amicus if he became his counsel was prescient. Just before the end of the conviction stage of the trial there was a falling out between amicus and the appellant. Before this court the appellant said he was "not happy with some of the cross-examinations" conducted at trial by amicus.

[33] The argument at the conclusion of the conviction stage of the trial proceeded on February 12, 2009. Amicus had prepared written submissions. The appellant complained to the trial judge that amicus did not visit him on February 11, 2009 to go over the submissions. He believed, from his quick review, that amicus intended to make some factual assertions with which he did not agree. The appellant asserted his right to present the argument personally and asked for time to prepare. After the Crown's conviction submissions, the court recessed for the day to allow the appellant time to prepare, and resumed on February 13, 2009. A careful reading of the appellant's submissions in the transcript shows that he had a full grasp of the facts and was well organized in his submissions. Amicus then made several submissions on the law.

[34] While amicus had evidently been in contact with the appellant throughout the conviction stage of the trial, they ceased communicating after the conviction. Sentencing submissions proceeded several months later.

(2) The Issues

[35] The appellant argues that both the motion judge and the trial judge were wrong in refusing his application for the appointment of trial counsel by a Rowbotham order. His argument gives rise to the following issues:

(1) Did the motion judge and the trial judge properly consider the usual prerequisites for a Rowbotham order?

(2) Was it appropriate for the motion judge and the trial judge to refuse the appellant a Rowbotham order based on his history of unreasonably discharging counsel?

(3) In considering whether to grant a Rowbotham order before or at the outset of the trial, were the motion judge and the trial judge permitted to take into account the prior appointment of amicus?

(3) Analysis

[36] The motion judge reviewed the prerequisite factors in his Rowbotham decision, but took into account an additional factor -- that an accused who has a history of not conducting himself reasonably in his relations with counsel may be denied a Rowbotham order. The motion judge was right to do so. He was also right to take into account the earlier appointment of amicus by Marrocco J., who made the appointment when the appellant was still represented by counsel.

[37] The trial judge was right in refusing to make a Rowbotham order, both at the outset of the trial and again during the trial when he was even more familiar with the appellant and with the exigencies. He carefully tailored the amicus order to the specific exigencies of the case before him in order to ensure trial fairness. Neither the motion judge nor the trial judge erred in the exercise of their discretion, as I will explain in going through the issues.

(a) Did the Motion Judge and the Trial Judge Properly Consider the Prerequisites for a Rowbotham Order?

[38] The three prerequisites for a Rowbotham order are that: the accused must have been refused Legal Aid; the accused must lack the means to employ counsel; and representation for the accused must be "essential to a fair trial": R. v. Tang, 2015 ONCA 470, at para. 9.

[39] Rosenberg J.A. explained the third prerequisite, trial fairness, in R. v. Rushlow, 2009 ONCA 461, at para. 39:

The purpose of the right to counsel in the context of a Rowbotham case is reflected in the nature of the test itself. Counsel is appointed because their assistance is essential for a fair trial. In my view, fair trial in this context embraces both the concept of the ability to make full answer and defence and the appearance of fairness.

[40] Trial and motion judges must evaluate whether appointing counsel under a Rowbotham order is necessary for a fair trial on a case-specific basis, having regard to relevant factors, including the seriousness of the charges, the likelihood of imprisonment, the length and complexity of the proceedings in terms of the factual evidence and the procedural, evidentiary and substantive law that would apply. The judge must also attend to the possibility of specialized procedures such as voir dires, and the accused's personal ability to participate effectively in defending the case: Rushlow, at paras. 19-20. The trial judge has an obligation to assist unrepresented counsel, which can sometimes mitigate the need for counsel: Rushlow, at para. 21; Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43, at para. 116 (per Fish J., dissenting on other grounds) ("CLA").

[41] These prerequisites were considered by the motion judge and the trial judge. But for the appellant's habit of unreasonably discharging counsel, both the motion judge and the trial judge would have made a Rowbotham order in his favour.

(b) Was It Appropriate for the Motion Judge and the Trial Judge to Refuse the Appellant a Rowbotham Order Based on His History of Unreasonably Discharging Counsel?

[42] I agree with the motion judge's spare words: "[T]he right of an accused person to retain counsel of his or her choosing . . . is not absolute, however. It is subject to reasonable limitations." As I outline below, there are circumstances in which the appointment of counsel for the accused by a Rowbotham order would not be appropriate.

[43] The trial judge followed the motion judge's logic in deciding whether to make his own mid-trial Rowbotham order. He noted that the appellant "has demonstrated an inability to work with counsel", and worried, quite rightly, that if amicus were appointed as counsel and were discharged later in the trial, "the trial would be in jeopardy". This line of reasoning was adopted in R. v. Chemama, 2014 ONCA 171, where this court affirmed the decision of Feldman J.A. to appoint amicus rather than counsel under s. 684 of the Criminal Code, R.S.C. 1985, c. C-46 because "any counsel appointed by the appellant would be dismissed by him".

[44] The principle that an accused must act reasonably and in good faith in seeking relief from the court is found in the jurisprudence: see R. v. Wood, at para. 15 (accused manipulating the system by orchestrating delay -- adjournment denied); R. v. Smith (accused wrongly refused adjournment requested in good faith); and R. v. Montpellier, at paras. 34, 38 (applicant cannot rely on Legal Aid refusal when caused by his own failure or inaction, also accused failing to disclose financial means). The principle that an applicant cannot rely on Legal Aid refusal where the applicant's own conduct caused the refusal has been confirmed and applied in a number of recent decisions, see, e.g., R. v. Plange, 2017 ONSC 134, at para. 8; R. v. Kazman, 2016 ONSC 4320, at para. 15; R. v. Thompson, 2015 ONSC 4070, at paras. 9, 15.

[45] Neither the motion judge nor the trial judge erred in their assessment of the situation presented by Mr. Imona-Russel's history of misconduct.

(c) In Considering Whether to Grant a Rowbotham Order Before or at the Outset of Trial, Were the Motion Judge and the Trial Judge Permitted to Take Into Account the Prior Appointment of Amicus?

[46] A Rowbotham order is to be made on an "all things considered" basis, taking into account the relevant exigencies in the case. In this case Marrocco J. made the initial amicus order to ensure that the trial would start and progress in a reasonable fashion. He did so when the appellant still had counsel.

[47] Both the motion judge and the trial judge took into account the prior appointment of amicus in concluding that a Rowbotham order was not warranted, particularly in light of the appellant's practice of discharging counsel. They were right to do so. It would be wrong to treat amicus as a substitute for defence counsel, but the involvement of amicus remains a relevant factor in determining whether the interests of justice can be met without a Rowbotham order.

[48] The assessment of what trial fairness requires is intensely contextual. Both the motion judge and the trial judge plainly thought that the prospect of trial unfairness in refusing to make a Rowbotham appointment could be substantially mitigated by an appointment giving amicus sufficient scope of action.

[49] I turn now to consider an argument that was open to the appellant, but which eluded him as a self-represented lay person, albeit highly intelligent and articulate.

[50] Is this court obliged to consider arguments not advanced by a self-represented appellant but that emerge obviously and naturally in the context, but which would not be apparent to a self-represented lay person? In my view, this court shares the duties of trial judges in ensuring fairness, with necessary modifications.

[51] As Watt J.A. noted in R. v. Richards, 2017 ONCA 424, at para. 112, in ensuring trial fairness: "The onus on the trial judge to assist the self-represented accused is a heavy one." Without becoming counsel, he added, at para. 110: "the trial judge must provide assistance to aid the accused in the proper conduct of his defence and to guide him as the trial unfolds in such a way that the defence is brought out with its full force and effect". The duty is "circumscribed by a standard of reasonableness": at para. 111.

[52] The appellant, who was self-represented on the appeal, said he did not think it necessary to argue that he "was having amicus represent [him] at trial". He therefore did not raise or address directly this issue:

(d) Was the Trial Judge Permitted to Tailor the Scope of the Activities of Amicus in the Manner He Did, and to Take That Amicus Order Into Account in Considering Whether to Grant a Rowbotham Order?

[53] Not surprisingly, it appears that it did not occur to the appellant, as a lay person, that if the scope of the activities of amicus under the order appointing him was impermissible, then it would be wrong in principle for the trial judge to have taken the amicus appointment into account in deciding whether to make the Rowbotham appointment. He did, however, raise this issue implicitly when he argued that the trial was unfair because he was denied his own counsel under a Rowbotham order, and was forced to make do with amicus, whom he did not select or control, and with whom he eventually broke contact.

[54] Crown counsel was alive to this issue on the appeal, and directly addressed the expanded role given to amicus. The Crown asserted that: "[N]one of the concerns that the Supreme Court of Canada raises [in CLA] . . . the potential concerns, the reasons . . . to be wary of an expanded amicus role . . . really played out in any way . . . in this case." As I will explain, with one possible caveat, I agree with that assessment.

[55] My analysis proceeds in two steps. First, I review the governing principles. Second, I apply the governing principles to the facts of the case.

(i) The Governing Principles on the Scope of Amicus' Activities

[56] The governing principles concerning the scope of permissible activities of amicus were addressed by the Supreme Court in CLA.

[57] It is a matter of some irony that the appellant was indirectly involved in the CLA decision. Neither the motion judge nor the trial judge therefore had the benefit of this decision, in which the Supreme Court reversed this court's decision in R. v. Imona-Russel, 2011 ONCA 303, on whether the appointing judge had the authority to set the rate of remuneration for amicus in the appointment order. This court had held that the appointing judge did have such authority. In CLA, the Supreme Court set a binding rule that the remuneration of amicus was a matter for the Crown and not the court.

[58] In CLA, the Supreme Court also considered the permissible scope of the activities of amicus, even though "that is not the issue before us", as Fish J. noted, at para. 121. The majority and minority in CLA did not differ on the issue of the proper scope of an amicus order, but only the trial judge's power to fix the fees of amicus in the order. The decision identifies principles that constrain the role of amicus, while recognizing the important function that amicus can play in ensuring that efficient and fair trials are conducted.

The Permissible Scope of Amicus Orders Under CLA

[59] In CLA, the majority and the dissent agreed on the general principles applicable to the scope of amicus orders. Fish J. added several observations, at para. 119, for which he cited [at para. 120] with approval Durno J. in R. v. Cairenius:

While the amicus may, in some circumstances, be called upon to "act" for an accused by adopting and defending the accused's position, his role is fundamentally distinct from that of a defence counsel who represents an accused person either pursuant to a legal aid certificate or under a Rowbotham order. Furthering the best interests of the accused may be an incidental result, but is not the purpose, of an amicus appointment.

[60] Justice Fish stated, at para. 114, that: "Once clothed with all the duties and responsibilities of defence counsel, the amicus can no longer properly be called a 'friend of the court.'" Speaking for the majority, Karakatsanis J. concurred, at para. 49.

[61] Justice Karakatsanis raised another concern, at para. 51, that "the appointment of amici for such a purpose may conflict with the accused's constitutional right to represent himself: see R. v. Swain". Justice Fish agreed, stating, at para. 116:

An accused is entitled to forego the benefit of counsel and elect instead to proceed unrepresented. An amicus should not be appointed to impose counsel on an unwilling accused or permit an accused to circumvent the established procedure for obtaining government-funded counsel: R. v. Cunningham, 2010 SCC 10, at para. 9. In the vast majority of cases, as long as a trial judge provides guidance to an unrepresented accused, a fair and orderly trial can be ensured without the assistance of an amicus. Such is the case even if the accused's defence is not then quite as effective as it would have been had the accused retained competent defence counsel.

[62] In CLA, the Supreme Court expressed concerns that: an amicus order defining a role that closely resembles the role defence counsel would usually play in a trial might encroach on the right of an accused to proceed without counsel: at para. 51; might blur the roles played by the trial judge, Crown and defence counsel: at para. 54; and might undermine a provincial legal aid scheme: at para. 55.

[63] Specifically, because judges cannot give strategic advice to unrepresented accused persons, an amicus would, by parity of reasoning, not be empowered to give strategic advice: para. 54. However, amicus may, in appropriate cases, assist in cross-examination and the presentation of evidence. However, I pause to observe that any cross-examination would require amicus to have a theory to guide the effort, moreover one that would work in the overall tableau of the evidence.

[64] Justice Karakatsanis said, at para. 53: "the privilege that would be afforded to communications between the accused and the amicus is muddied when the amicus' client is in fact the trial judge". This might suggest that communications between the accused and amicus cannot be protected by solicitor-client privilege. I need not determine the issue, because in this case the same critical function that would be performed by solicitor-client privilege in allowing for candid communications between the amicus and the accused could be performed by a Crown undertaking, in consenting to the appointment of amicus, to treat communications between amicus and the accused as privileged. Nothing turns on the issue.

[65] Justice Fish noted, at para. 117:

If appointed, an amicus may be asked to play a wide variety of roles: R. v. Cairenius, at paras. 52-59. There is, as Rosenberg J.A. pointed out in R. v. Samra, at p. 444, "no precise definition of the role of amicus curiae capable of covering all possible situations in which the court may find it advantageous to have the advice of counsel who is not acting for the parties".

[66] In Cairenius, Durno J. canvassed the spectrum of possible roles for amicus, at paras. 55-56, ranging from being relatively detached from the accused, to being fully engaged on the accused's behalf. In his view, the place of amicus on the spectrum would depend entirely on the exigencies of the case.

[67] I would draw several pertinent principles from the jurisprudence: First, an accused person has the right to self-represent, and cannot be compelled to appoint counsel, to pursue public funding through Legal Aid for counsel, or to pursue a Rowbotham order appointing counsel: CLA, at para. 116. An accused also has the right to discharge counsel including counsel appointed under a Rowbotham order, but since amicus does not represent the accused person, the accused person may not discharge amicus.

[68] Second, while amicus may assist in the presentation of evidence, amicus cannot control the litigation strategy. While there may be an issue about whether a trial judge may impose a privilege on communications between amicus and the accused person, the necessary confidentiality can flow from an express Crown undertaking in consenting to the appointment of amicus, as I have noted.

[69] The third principle is that, in considering the appointment of amicus, the trial judge must consider whether he or she can provide sufficient guidance to an unrepresented accused in the circumstances of the case to permit a fair and orderly trial without the assistance of amicus, even if the accused's defence would not be quite as effective as it would have been had the accused retained counsel: CLA, at para. 116; Rushlow, at para. 21.

[70] One circumstance in which the appointment of amicus might be warranted is where the accused is contumelious, like the appellant.

[71] A second circumstance would be where the accused refuses to participate or disrupts trial proceedings: Cairenius, at para. 51.

[72] A third circumstance would be where the accused is adamant about conducting the defence personally, but is hopelessly incompetent to do so. As Code J. observed in R. v. Jaser, 2014 ONSC 2277, at para. 35:

The practical difficulty, left unresolved and unaddressed in Ontario v. C.L.A., supra, is that a number of authorities have held that self-represented accused can sometimes conduct their own defence so incompetently that a "miscarriage of justice" results. In these cases, the trial judge properly carried out the duty to assist the self-represented accused. Nevertheless, the accused's complete inability to conduct the defence led to an unjust result that was reversed on appeal through s. 686(1)(a)(iii) -- the "miscarriage of justice" power. One of the remedies suggested in these cases is the appointment of amicus, in effect, to assist with the otherwise incompetent conduct of the defence.

[73] The fourth principle is that the trial judge is responsible for ensuring that the trial progresses reasonably: see, e.g., R. v. Valley; R. v. Snow, at para. 24; Chippewas of Mnjikaning First Nation v. Ontario (Minister of Native Affairs), 2010 ONCA 47; R. v. Hungwe, 2018 ONCA 456.

[74] Trial judges may consider the appointment of amicus where necessary as one way to ensure both trial progress and trial fairness. This principle was illustrated in Chemama, where the accused had repeatedly dismissed or refused to co-operate with counsel, which caused significant delay to the proceedings. The court affirmed Feldman J.A.'s refusal to appoint counsel under s. 684 of the Criminal Code, holding that the since the accused would likely dismiss any counsel appointed by him, it was appropriate to appoint amicus "who cannot be dismissed by the appellant": Chemama, at paras. 1-2.

[75] Similarly, the Court of Appeal for British Columbia upheld the decision of the lower court to appoint amicus where the accused had unreasonably delayed proceedings by repeatedly discharging counsel: R. v. Mastronardi, 2015 BCCA 338. In doing so, the court noted that the case was unusual as it involved a "highly manipulative" accused who was "determined to derail the proceedings", thus making the appointment of amicus necessary to protect the court's process and to prevent a miscarriage of justice: at paras. 9-10, 50; see also R. v. Samra.

(ii) Application of the Governing Principles

[76] In CLA, the Supreme Court recognized that "there is ample authority for judges appointing amici curiae where this is necessary to permit a particular proceeding to be successfully and justly adjudicated": Karakatsanis J., para. 44.

[77] Even though the power to appoint amicus is to be used "sparingly and with caution . . . in response to specific and exceptional circumstances", it would be appropriate to exercise that power where "the assistance of amici [is] essential to the judge discharging her judicial functions in the case", that is, "to ensure the orderly conduct of proceedings and the availability of relevant submissions . . . [on] contested, uncertain, complex and important points of law or of fact": Karakatsanis J., at para. 47; and per Fish J., at para. 108.

[78] The trial judge appointed amicus for these very reasons, and to safeguard trial fairness in the special circumstances of the case. This was far from a routine appointment of amici that would "risk crossing the line between meeting the judge's need for assistance, and the province's role in the administration of justice": CLA, para. 47.

[79] Despite the wide role assigned to amicus, the trial judge was scrupulous in insuring that the appellant's right to self-represent was respected. The appellant played no role in selecting amicus. Even under the expanded order, the appellant retained the right to ask his own questions, and present his own argument.

[80] I do not read the Supreme Court's decision in CLA as removing or substantially curtailing the trial judge's well-recognized discretion to appoint amicus and to tailor the scope of the appointment to cope with the exigencies of the case in order to ensure a fair and orderly trial and to prevent a predictable miscarriage of justice.

[81] The Crown pointed out, in my view fairly, that: "Justice McMahon . . . was actually at first quite leery of an expanded amicus role, and was very careful to do it on an as-needed basis . . . [he] was very careful to explain that for each witness we were going to have this discussion, and to . . . emphasize for Mr. Imona-Russel that amicus isn't a substitute for counsel." The trial judge repeated this admonition on several occasions.

[82] When the parties first discussed the possibility of creating an expanded role for amicus, the trial judge observed that the case law directs that "amicus isn't counsel for the accused" and opined that he could not "indirectly" make amicus into defence counsel. Later, he explained to the appellant that communications with amicus would be privileged "just as if he was your lawyer, although he's not". It would have been preferable for the trial judge to have used the word "confidential" instead of "privileged".

[83] During the course of the proceedings, it became clear that the appellant did not simply want an expanded role for amicus, but wanted amicus to be converted to defence counsel. In his ruling on the role of amicus, the trial judge said that he was "not satisfied that it is appropriate to appoint Mr. Javed as trial counsel and relinquish his role as Amicus", and went on to expand the role of amicus "[w]hile recognizing that Amicus is not counsel to the accused". He concluded: "So it is clear, Mr. Javed, in his role of Amicus, will not be counsel for Mr. Imona-Russel."

[84] When the appellant stated at the beginning of the argument at the conviction stage that he wanted to make the argument himself because he disagreed with amicus's draft submissions, he was allowed to do so and amicus made additional legal submissions.

[85] Later on, during the sentencing proceedings, the appellant sought to remove Mr. Javed as amicus for an alleged conflict. Once again, the trial judge reiterated that Mr. Javed "is not counsel to Mr. Imona. He is counsel to the Court, albeit I have given him an expanded role to assist Mr. Imona". Both amicus and the appellant made sentencing submissions.

[86] However, amicus was not defence counsel, as the trial judge pointed out. I observe that the appellant had no role in selecting amicus. When the appellant stated at the beginning of the argument at the conviction stage that he wanted to make the argument himself because he disagreed with amicus's draft submissions, amicus still made legal submissions. He returned for the sentencing stage. Amicus played the role described by Fish J. in CLA, at para. 118: "Regardless of what responsibilities the amicus is given, however, his defining characteristic remains his duty to the court and to ensuring the proper administration of justice."

[87] Moreover, given the appellant's inability to direct or dismiss amicus, the role assigned to amicus was sufficiently different from the role that Rowbotham counsel would have assumed that there can be no realistic concern that the amicus order undermined the denial of the Rowbotham application.

[88] The trial judge was well aware that his overarching goal at all times was to safeguard trial fairness when he gave duties to amicus that approached the usual duties of defence counsel. As noted, amicus was: to advise the accused about points of law and the legal issues; to discuss legal issues with the Crown on behalf of the accused; to speak to the court on behalf of the accused on legal issues; and to cross-examine the complainant. He also cross-examined other witnesses. These are all proper functions for amicus to perform in a case such as this, and there is no indication that amicus overstepped his role.

[89] With respect to privilege, the order provided that: "Communications with Mr. Russel for preparation for pre-trial applications and cross-examination are privilege[d]." The terms of the order were plainly intended to give the appellant a basis for confiding confidentially in amicus, which the trial judge thought was necessary for trial fairness. I need not resolve whether CLA absolutely prohibits orders of the kind made in this case. There is no indication that the privilege was actually invoked, and, in any event, the Crown agreed to treat the communications between amicus and the appellant as privileged. In those circumstances it would have been abusive for the Crown to seek confidential information, irrespective of the trial judge's order.

[90] The elements of the amicus order enured to the appellant's benefit and assisted in ensuring that the trial proceeded smoothly and fairly to its conclusion, consistent with the observation of Fish J. in CLA that even though an amicus does not represent the accused person, "[f]urthering the best interests of the accused may be an incidental result, but is not the purpose, of an amicus appointment": CLA, at para. 119.

[91] The trial judge responded masterfully to the exigencies of this case. His amicus order was fully consistent with these principles. A careful reading of the transcript shows that the trial judge was unfailingly solicitous of the appellant, patient with him in explaining what was going on and what was, from time to time, expected of him. With less active involvement by amicus, trial fairness might well have been jeopardized. If the trial judge had converted amicus into defence counsel by a Rowbotham order as requested by the appellant, his anticipated and inevitable discharge would have jeopardized the trial.

[92] I would be especially loath, in this extremely delicate and volatile situation, to interfere with the exercise of the trial judge's discretion, which he exercised carefully and explained fully in the context of his more immediate and intimate understanding of the case and his familiarity with the appellant.

[93] The concerns expressed by the Supreme Court in CLA did not manifest in this case. This was not a case of foisting counsel on an unwilling accused; here the appellant asked that amicus be appointed as his counsel. The role played by amicus was clearly defined, and was explained to and understood by the appellant. Amicus' s duties were owed to the court alone and he remained after the falling out with the appellant. Here the Attorney General consented to the terms of the order appointing amicus.

[94] In my view, it remains open to trial judges to appoint amicus where no Rowbotham appointment should be made, as in this case, or to appoint amicus to function alongside a Rowbotham appointee, where there is a real risk that the accused will discharge counsel as a way of disrupting the trial: see Mastronardi; Chemama. It remains open to trial judges to make similar amicus appointments where the conditions warrant such an order, but exceptionally, bearing in mind the principles laid out by the Supreme Court in CLA. Although the trial judge did not have the benefit of the decision in CLA when he made his order, in my view it complied fully with the principles of CLA.

Disposition of the Rowbotham Appeal

[95] Did the refusal of the motion judge and the trial judge to appoint Rowbotham counsel result in a miscarriage of justice? For the reasons set out above, there was no unfairness or appearance of unfairness in the appellant's trial, in large measure because of the amicus appointment and the trial judge's careful and respectful trial management.

[96] I would dismiss the conviction appeal that was based on the appellant's unsuccessful Rowbotham applications.

[97] Consequently, I would dismiss the appeal in its entirety.

Disposition

Appeal dismissed.

End of Document