Court of Appeal for Ontario

Date: September 30, 2019

Docket: C56010

Judges: Feldman, Fairburn and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Krista Walker Appellant

Counsel:

• Frank Addario and Megan Savard, for the appellant
• John Patton, for the respondent

Heard: April 3, 2019

On appeal from the sentence imposed on March 21, 2012 by Justice Rebecca Rutherford of the Ontario Court of Justice.

Fairburn J.A.:

Overview

[1] Meningitis destroyed a portion of Ms. Walker's brain when she was only five months old. She spent most of her young childhood moving between family homes. She was sometimes abused in those homes. She was eventually placed into the care of the Children's Aid Society.

[2] By the time she was 10 years of age, Ms. Walker started experiencing seizures, and by the time that she was 14 years of age, she began self-harming. Repeated suicide attempts followed. This led to a steady and relentless cycle of involuntary admissions to psychiatric facilities.

[3] When she was 30 years of age, Ms. Walker started accumulating a few criminal convictions, but was never sent to the penitentiary. Then, on March 6, 2009, when Ms. Walker was 34 years of age, she stabbed a woman in the heart. But for the immediate response of medical professionals, the woman would have died. On January 12, 2010, Ms. Walker entered guilty pleas to aggravated assault, carrying a concealed weapon and breach of probation in relation to the incident. On March 21, 2012, she was declared a dangerous offender and an indeterminate sentence was imposed.

[4] The dangerous offender hearing was as complex a hearing as the courts see. The experienced trial Crown acknowledged that it was a "unique hearing", in large measure because Ms. Walker's actual criminal record did not necessarily support a pattern of conduct that would have met the requirements for a dangerous offender finding. Accordingly, the Crown set out to prove over 40 "prior acts of violence and threats of violence" that had never resulted in criminal charges, let alone convictions.

[5] The hearing was made all the more complex by the fact that Ms. Walker was a difficult, self-represented accused. She is a person who has been diagnosed with borderline personality disorder, borderline intellectual functioning and dysthymia, a persistent depressive condition. The expert evidence suggests, and her behaviour in court shows, that she has problems with interpersonal relationships, impulsivity, and difficulty controlling her anger. She easily decompensates, has paranoid ideation and experiences severe dissociative symptoms.

[6] Ms. Walker has been described as having "limited intellectual functioning secondary to the brain damage she suffered as a child". Neuropsychological tests showed that she possesses a "composite measure of general intelligence, fall[ing] below the 1st percentile, in the Extremely Low range." There was evidence before the court that her cognitive challenges undermine her ability to weigh options and appreciate the consequences of her behaviour.

[7] It would be a significant oversight not to acknowledge the enormously difficult task confronting the hearing judge. Against the backdrop of a highly complex and lengthy hearing, she had to manage a very difficult, frequently intransigent, often vulgar and sometimes violent self-represented accused. The record clearly displays the hearing judge's dedication to controlling the proceeding and navigating it fairly to a just conclusion. The hearing judge appointed amicus curiae to assist her in meeting that goal.

[8] Ms. Walker, who is represented on appeal, appeals the dangerous offender finding and indeterminate sentence imposed. She claims that she has been the subject of a miscarriage of justice arising from what she describes as a number of procedural errors that created both an appearance of unfairness and actual unfairness in the dangerous offender proceeding. Ms. Walker contends that the unfairness can be seen in several ways:

(i) a failure to give her an opportunity to make an informed choice about whether to proceed with or without counsel when she desperately needed one;

(ii) a failure to inquire into her fitness when the circumstances cried out for such an inquiry;

(iii) a failure of amicus curiae to resist the admission of institutional records elicited to assist in establishing a pattern of conduct justifying a finding of dangerousness pursuant to s. 753(1)(a)(i) and (ii) of the Criminal Code, R.S.C., 1985, c. C-46;

(iv) a failure of amicus curiae to explore adequate substitutes for Ms. Walker's presence in court when she was no longer able to "psychologically … handle" the proceedings; and

(v) amicus curiae's closing argument, at the end of the proceedings, and in Ms. Walker's absence, advocating in favour of finding Ms. Walker a dangerous offender and imposing an indeterminate sentence.

[9] At its core, this case comes down to whether there has been a miscarriage of justice occasioned by failing to put in place sufficient procedural safeguards to ensure a fair proceeding for a self-represented accused with mental, behavioural, and cognitive challenges, who was entirely incapable of representing herself, and who faced an application that could deprive her of her liberty for the rest of her life. Despite the extraordinary effort put into the hearing, I conclude that there were several actions and inactions that resulted in both the appearance of unfairness and actual unfairness giving rise to a miscarriage of justice. I would allow the appeal.

The Index Offence

[10] On March 6, 2009, Ms. Walker got into an argument with a third party at a drop-in centre. When the complainant attempted to intervene in that argument, the appellant took a paring knife from her purse and stabbed the complainant in the chest, puncturing her heart.

[11] Ms. Walker was charged with a number of offences, including attempted murder.

The First Guilty Plea

[12] On May 15, 2009, about two months following the stabbing incident, Ms. Walker pled guilty to the attempted murder charge. Before doing so, she informed the court that she had discharged her lawyer on this matter and intended to proceed on her own.

[13] A pre-sentence report was ordered. When the report was returned, it revealed that Ms. Walker had a version of events that suggested that she may have been acting in self-defence. Upon learning that information, the court decided to appoint amicus curiae to assist.

[14] Once on the record, based upon discussions she had with Ms. Walker, amicus curiae expressed concern that Ms. Walker might not be able to understand the proceedings, conduct a defence, or instruct counsel. The court joined in those concerns. Accordingly, on August 21, 2009, a fitness assessment was ordered pursuant to s. 672.11(a) of the Criminal Code.

[15] The October 1, 2009 fitness report resulted in the suggestion that Ms. Walker was then fit to stand trial: "Ms. Walker presents currently as fit to stand trial." When the matter returned to court on October 13, 2009, a fitness hearing was not conducted. Instead, on the basis of Ms. Walker's claim that she may have been acting in self-defence, the plea was struck and the matter was set down for trial.

The Second Guilty Plea

[16] On January 12, 2010, the matter came up for trial before a different judge. Given that this judge ultimately presided over the dangerous offender proceeding, I will refer to her as the "hearing judge". The appellant again appeared without counsel. As will be discussed shortly, the matter appears to have proceeded on the assumption that Ms. Walker did not wish to retain counsel. At the request of the previous judge who had presided over the initial plea, the amicus curiae followed the matter.

[17] The Crown was prepared to permit Ms. Walker to plead guilty to aggravated assault, carrying a concealed weapon and breach of probation. However, the Crown was clear that, whatever the plea, if Ms. Walker was convicted, the Crown would be seeking a lengthy penitentiary term or a long term or dangerous offender designation. Ms. Walker equivocated on whether she would even enter a plea. Ms. Walker spoke with amicus curiae after the court encouraged her to do so. After a court break, amicus informed the court that "an agreement" had been reached and Ms. Walker would be pleading guilty.

[18] The hearing judge conducted a plea inquiry, impressing upon Ms. Walker the implications of pleading guilty, including that the Crown might seek a dangerous offender designation. The hearing judge explained that this meant that she could receive a "life sentence". Ms. Walker then pled guilty and admitted the facts read into the record by Crown counsel.

General Nature of the Dangerous Offender Proceeding

[19] Shortly after the pleas were entered, the court ordered an assessment for the purposes of a dangerous offender proceeding pursuant to s. 752.1(1) of the Criminal Code. More than two years later, the dangerous offender finding was made.

[20] The stabbing through the heart incident was an obvious "serious personal injury offence" within the meaning of s. 752 of the Criminal Code. Accordingly, the real issues for determination at the dangerous offender hearing were: whether Ms. Walker constituted a "threat to the life, safety or physical or mental well-being of other persons" on the basis that she had engaged in a "pattern of repetitive behaviour" or "persistent aggressive behaviour" within the meaning of ss. 753(a)(i) or (ii) of the Criminal Code; and, if so, whether something less than an indeterminate sentence would provide adequate protection to the public pursuant to s. 753(4.1) of the Criminal Code. As I have already mentioned, in addition to Ms. Walker's criminal record, the trial Crown set out to prove dozens of prior acts of violence and threats of violence, calling over 30 witnesses to testify and filing a large number of institutional records.

[21] Ms. Walker was detained at the Vanier Correctional Centre for Women. Between the time of her arrest and October 3, 2011, when the operational manager from Vanier testified at the hearing, Ms. Walker had spent 675 days in the segregation unit on 23-hour lockup. Ms. Walker's mental condition deteriorated as the dangerous offender hearing progressed. The fact that Ms. Walker was in segregation for so much time could have contributed to that situation: Canadian Civil Liberties Association v. Canada (Attorney General), 2019 ONCA 243, at paras. 62-77.

[22] The record overflows with her emotional roller coaster. At times she was belligerent, berating and sometimes threatening all those involved in the proceeding. At other times she was obstinate and listless and refused to speak. At yet other times she was emotional, crying and saying she was a "fucking failure" and wanted to kill herself, and begged not to hear any more evidence. At times she came to court and was engaged, testifying on more than one occasion, while at other times she refused to even come out of the cells. Eventually she refused to come to court altogether.

[23] The result was that Ms. Walker was not present in the courtroom during critical evidence, including the testimony of the psychiatrists who provided expert evidence about her psychological challenges and her potential manageability within the community. At the end of the hearing, again without Ms. Walker present, both Crown counsel and amicus curiae advocated in favour of finding her a dangerous offender and imposing an indeterminate sentence. The hearing judge concurred.

Analysis

Overview

[24] A dangerous offender proceeding is one of the most serious proceedings known to law. It not only asks whether a person should have a label of dangerousness attached to him or her for life, but also whether the person should be at risk of having his or her right to liberty removed for life. The seriousness of such an inquiry to both the individual and to society is beyond dispute.

[25] The public's confidence in the administration of justice is inextricably linked to the rule of law. The rule of law is threatened when the public loses confidence in the justice system. Both actual and perceived unfairness in the court system can shake that confidence. That is why "procedural fairness must be jealously guarded and strictly enforced", particularly in proceedings where the individual and societal stakes are high, like dangerous offender proceedings: R. v. McDonald, 2018 ONCA 369, at para. 41. For the reasons that follow, I conclude that the dangerous offender proceeding was not procedurally fair.

[26] I will start by addressing two interrelated issues: the failure to adequately explore whether Ms. Walker wished to proceed as a self-represented accused and the failure to explore her fitness. As the balance of the issues engage, at least at some level, the alleged failings of amicus curiae, after addressing the first two issues I will then turn to the law respecting the appointment of amicus and the specific role that amicus was expected to perform in this case. That will be followed by a discussion of the applications to admit fresh evidence. I will conclude by addressing three examples of perceived and actual unfairness in the proceeding, which are linked to the role of amicus:

(i) the approach to psychiatric hospital records to prove prior acts of violence and threats of violence;

(ii) the failure to explore meaningful options to keep Ms. Walker informed about the proceeding when she was absent from the courtroom; and

(iii) the fact that amicus curiae advocated in favour of declaring Ms. Walker a dangerous offender and imposing an indeterminate sentence.

The failure to inquire into whether the appellant wished to retain counsel

[27] Ms. Walker expressed her desire to be self-represented during the initial guilty plea proceeding. Three months after that plea was struck, Ms. Walker returned to court for a pre-scheduled, multi-day trial.

[28] Everyone appears to have operated on the assumption that when Ms. Walker appeared for trial on January 12, 2010, she wished to proceed without counsel. This is evidenced by the hearing judge's comment to Ms. Walker:

Now, I know you are representing yourself. You have a very competent and able lawyer here who is helping me [referring to amicus curiae], and who will also assist you.

[29] Ms. Walker argues that the hearing judge erred by not inquiring into whether she wished to retain counsel at the outset of the proceeding on the first day scheduled for her trial, before she entered her second guilty plea. The respondent disagrees, claiming that the hearing judge was merely allowing Ms. Walker to act on her own conscious decision to be self-represented, a choice that had been exercised at the earlier guilty plea proceedings. Ms. Walker had had rocky relationships with lawyers, having previously discharged counsel in some matters and threatened former counsel in others. The respondent says that Ms. Walker clearly knew that she could retain counsel if she wished to do so. She simply made a considered and unequivocal choice not to.

[30] The respondent may be right that Ms. Walker most likely would not have retained counsel, even if the hearing judge had addressed the issue with her. Even so, in light of all of the surrounding circumstances, the matter should have been squarely addressed with her on the first day of trial before she entered her guilty pleas. I am of the view that, without that inquiry, and in the unique circumstances of this case, Ms. Walker's "decision" to proceed without counsel cannot be characterized as an "informed" decision to proceed in that manner: R. v. Romanowicz, at para. 36.

[31] Ms. Walker was in profound jeopardy. Crown counsel announced at the outset that the Crown would be asking for a "very lengthy penitentiary term", at a minimum, and possibly a dangerous offender designation. The aggravated assault charge that Ms. Walker was facing and to which she was considering pleading guilty would constitute the index offence for the dangerous offender hearing that could follow. The stakes were high for this accused with mental, behavioural and cognitive challenges.

[32] The first 25 pages of transcript from the first day scheduled for trial demonstrate why Ms. Walker was in desperate need of an advocate and why it was a significant oversight to fail to canvass the issue with her. Within the first hour of the proceedings, the following events occurred in the following order:

(i) Ms. Walker was non-responsive to questions posed by the trial judge,

(ii) she then claimed that she had acted in "fucking self-defence" and that she was "fucked up" and had already done her "time",

(iii) she addressed everyone in court by saying "fuck you all" and said that she would not plead guilty because there was "no fucking proof",

(iv) she expressed her hope that the complainant whom she had stabbed in the heart would die ("I hope that fucking girl dies"),

(v) she said that if her friends found the complainant that they would "fucking hurt her",

(vi) she then declared that she would not plead guilty because she had already done her "fucking time" and that there was no proof of the offence because there was no video,

(vii) she then announced that she would "admit it", and

(viii) she concluded by entering guilty pleas.

Ms. Walker's difficulties were thus on full display in the first moments of the first day of the proceedings.

[33] While some accused find themselves without lawyers because they are denied state funding, no one has suggested that Ms. Walker would have been ineligible for funding. Whether she would have decided to retain a lawyer or not is not the issue. Whether she would have later fired any lawyer she retained is not the issue. The issue is that Ms. Walker's self-represented status was considered a fait accompli.

[34] The hearing judge never asked whether she wished to retain counsel at the outset of the proceedings, before she entered her second guilty plea. It was assumed she did not. Moreover, it was never explained to Ms. Walker that, in light of the severe jeopardy she was facing, she should strongly consider having legal representation and could be given an opportunity to further consider this option, if she so wished.

[35] I do not accept that Ms. Walker made a conscious, informed decision to proceed without a lawyer when she came before the court for trial. At a minimum, the failure to squarely address the matter with her, and explain why she may benefit from actual legal representation, created an appearance of unfairness.

The failure to inquire into fitness

[36] During the first minutes of the first day of the proceedings, when Ms. Walker was non-responsive to the hearing judge's inquiries, the hearing judge asked amicus curiae if she was satisfied that Ms. Walker could understand what was being said. Amicus informed the court that Ms. Walker had been "found fit". While there had been a fitness report prepared three months earlier, and Ms. Walker had been assessed as fit at that time, there had been no fitness hearing conducted and no finding of fitness made. In the over 26 months that followed, no one questioned Ms. Walker's fitness again, except to the extent of baldly observing that she was "fit". For instance, as will be addressed later in these reasons, amicus took the position that the court should accede to Ms. Walker's request to be absent from the dangerous offender hearing, partially on the basis that "[s]he is fit, so this choice seems to be a legitimate choice."

[37] Counsel for the appellant says that after the appellant came before the hearing judge, she showed obvious signs of being unfit and the matter should have been explored.

[38] The respondent says that there is no merit to the suggestion that Ms. Walker was unfit. The matter was raised before the initial trial judge and a fitness assessment was prepared on October 1, 2009. Ms. Walker was found to be fit by a psychiatrist at that time. The respondent maintains that there was nothing to suggest that Ms. Walker's status changed after that report was authored. He argues that she demonstrated her ability to communicate with amicus when she chose to, had a keen understanding of the consequences of the proceedings and was not a "confused spectator". The respondent maintains that it would have been irresponsible to delay the proceedings to conduct a fitness hearing without an evidentiary foundation.

[39] I do not share the respondent's view.

[40] It is a fundamental aspect of procedural fairness that an accused be both physically and mentally present at trial. Section 2 of the Criminal Code sets out the criteria against which fitness is considered:

"unfit to stand trial" means unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to

(a) understand the nature or object of the proceedings,

(b) understand the possible consequences of the proceedings, or

(c) communicate with counsel.

[41] The test for fitness has been referred to as a "limited cognitive capacity" test. The accused must have "sufficient mental fitness to participate in the proceedings in a meaningful way": R. v. Taylor, at p. 338 (C.A.). In R. v. Morrissey, 2007 ONCA 770, at para. 27, this court commented on the limited cognitive capacity test:

It requires only a relatively rudimentary understanding of the judicial process — sufficient, essentially, to enable the accused to conduct a defence and to instruct counsel in that regard. It is in that sense that the accused must be able "to communicate with counsel" and relate the facts concerning the offence.

[42] In Morrissey, at para. 36, this court underscored the need for "meaningful presence and meaningful participation [of the accused] at the trial" and described these requirements as the "touchstones of the inquiry into fitness."

[43] Although an accused is presumed fit to stand trial, that presumption can be displaced upon a balance of probabilities: Criminal Code, s. 672.22. The procedure by which to deal with the issue of fitness is governed by Part XX.1 of the Criminal Code. The issue of fitness may be raised by either party or by the trial judge: ss. 672.12, 672.23. As fitness can change over the course of a proceeding, there is no cap placed upon the number of fitness assessments that may be ordered in any given case. Likewise, there is no cap on the number of fitness hearings that may have to take place.

[44] Proceeding against a person who is not mentally present at the proceedings is akin to proceeding against a person who is not physically present at the proceedings. It has the effect of excluding that person from the proceedings. While courtroom efficiency is a laudable goal, it is not to be achieved at all costs. Where fitness concerns arise, they must be addressed. There is nothing irresponsible about halting proceedings to take steps to ensure that the subject of those proceedings is present in mind.

[45] The record in this case is replete with indicia calling for at least an inquiry into fitness. The hearing judge maintained the ultimate responsibility for ensuring the fairness of the proceedings. Although amicus could have raised the issue with the hearing judge, equally, the hearing judge could have raised the issue of her own accord. For that matter, Crown counsel could also have raised the issue. Yet no one did.

[46] The October 1, 2009 fitness report suggested that Ms. Walker was "currently … fit to stand trial". Of course, the report was authored in the wake of Ms. Walker's first guilty plea and came before the Crown had definitively decided to pursue a dangerous offender designation. Ms. Walker would not be declared a dangerous offender for another two and a half years after that report was authored.

[47] Even if the original judge had found Ms. Walker fit on the basis of the October 2009 report, there were numerous signs during the course of the proceedings that should have raised concerns about a change to that status. A few examples will illustrate the point:

(i) On the first day before the hearing judge, after being clearly told that if she chose to plead guilty the matter would be remanded, Ms. Walker expressed through amicus that she wanted to be sentenced that day. She did not seem to comprehend what the hearing judge had tried to impress upon her: by pleading guilty, she was embarking upon a potentially very long journey before a sentence would be imposed.

(ii) A few days after pleading guilty, Ms. Walker seemed confused, expressing frustration that she was being prevented from pleading guilty and threatening not to come back to court as she had been in custody since March of 2009 for "self-defence". She did not seem to appreciate that she had already pled guilty.

(iii) Shortly before the evidentiary portion of the dangerous offender proceeding began, Ms. Walker seemed confused about what was about to take place at the hearing. The hearing judge told her that the Crown's application was being adjourned to May 30, 2011, at which point Ms. Walker asked, "On the dangerous offender?" The hearing judge said: "Yes, the Crown is applying that you be designated as a dangerous offender, and I expect that the evidence will commence on that day." Ms. Walker responded in a confused fashion: "like I mean – like sentence stuff, I mean it's all done, and I can do my time?" It is unclear whether Ms. Walker understood the potential outcomes of the dangerous offender application.

(iv) At the conclusion of the first day of the evidentiary portion of the hearing, Ms. Walker expressed surprise and confusion as to why the Crown was eliciting evidence about past conduct. She thought that the witnesses would be testifying about what had happened during the stabbing incident that she had pled guilty to about 18 months before.

(v) Over two weeks into the evidentiary portion of the hearing, Ms. Walker again expressed confusion about what was happening. She stated that she had already pled guilty for the incident and wanted to know "why are we talking about the misconduct, because it's all done and over with, you know. That's not going to change anything about my charge."

[48] These excerpts provide some examples of Ms. Walker's apparent failure to grasp the nature and object of the dangerous offender proceeding. She did not seem to understand the essential nature of what was happening around her, the reason for assessing her past acts, or that a life sentence was a very likely result of that proceeding. While she was often misbehaved, that misbehaviour was frequently linked to expressions of bewilderment about why there was so much attention cast upon her past conduct.

[49] Indeed, nearing the point in the dangerous offender proceeding when Ms. Walker would draw a line in the sand, refusing to return to court, she had a full breakdown in court. The hearing judge interrupted the Crown's submissions on Ms. Walker's prior acts and asked Ms. Walker whether she was "able to follow what's going on." Ms. Walker replied, "[n]ot anymore" and asked the judge to "cancel" what she had testified to, saying she had been "stupid" to testify.

[50] Dr. Gojer was the psychiatrist retained by amicus to assess Ms. Walker. He prepared a report for use at the dangerous offender proceeding. The respondent relies upon a single, unsupported comment in Dr. Gojer's report, where he said that there "are no issues with respect to fitness to stand trial or criminal responsibility", as proof that Dr. Gojer found Ms. Walker fit. In my view, if Dr. Gojer meant that he came to a determination that Ms. Walker was fit and criminally responsible, he provides no support for those conclusions. Indeed, on one reading of the sentence, Dr. Gojer may have simply been commenting on the fact that he was not asked to opine on those "issues".

[51] In any event, Dr. Wilkie, the psychiatrist whom the Crown retained for the dangerous offender hearing, also made a comment about fitness in the report that she prepared for use at the hearing. Dr. Wilkie's report pointed out that, although she had not been asked to opine upon fitness, Ms. Walker seemed to believe that "she had already been sentenced with respect to the index offenses and that therefore the current assessment process was redundant." Nothing could be further from the truth. Ms. Walker had not been sentenced on the index offences and much turned on Dr. Wilkie's assessment. This was yet another signal that Ms. Walker's fitness may have been in issue.

[52] I make no determination as to whether Ms. Walker was fit or not. What is critical for the purposes of this appeal is that a self-represented, mentally complex individual was before the court saying things that should have raised concerns about whether she was mentally present at the most important criminal proceeding she could face, one that could determine how she would live the rest of her life. This case cried out for the issue of fitness to be addressed.

[53] I close on this issue by noting a jurisdictional point that was not raised by the parties. Sections 2 and 672.23(1) of the Criminal Code refer to fitness being determined "before a verdict is rendered." That language has given rise to a jurisprudential discussion about whether the fitness provisions within the Criminal Code are available for use only up to the time of a finding of guilt. If so, an issue arises as to the jurisdictional basis upon which to assess and determine fitness after a finding of guilt has been made.

[54] The authorities agree that, where fitness concerns arise after a finding of guilt has been made, the proceedings cannot continue until the accused's fitness has been assessed and determined. Some have suggested that jurisdiction at the sentencing stage lies in the common law; others have suggested that it lies in the Canadian Charter of Rights and Freedoms; and still others have suggested that it lies in reading into the relevant statutory provisions by way of affording a constitutional remedy: R. v. R.M.P., 2019 ONSC 1416; R. v. Nehass, 2016 YKSC 63; R. v. Jaser, 2015 ONSC 4729; Canada (Attorney General) v. Balliram, 173 C.C.C. (3d) 547 (Ont. S.C.); R. v. Morrison, 2016 SKQB 259, 31 C.R. (7th) 362, 363. See also: Richard Schneider and Hy Bloom, Fitness to Stand Trial, (Toronto: Irwin Law Inc., 2018), at pp. 46-49.

[55] It is beyond the scope of this judgment to settle on the precise jurisdictional route to a fitness hearing after a finding of guilt has been made. We have not been asked to do so. Indeed, the respondent does not oppose this ground of appeal on the basis that the hearing judge was without jurisdiction to address fitness at the dangerous offender proceeding. In my view, the respondent is right not to have opposed on that basis.

[56] Individuals have as much right to be present in mind at proceedings determining their liberty as they have a right to be present in mind at proceedings determining their culpability. The dignity and fairness of our justice system requires that to be so: Taylor, at p. 338.

[57] I am satisfied that, even if the Criminal Code provisions are not available for a fitness hearing after a finding of guilt has been made, a proposition that I should not be taken as endorsing, there are sufficient jurisdictional alternatives in place that would have permitted the issue to be explored.

[58] Considering the record as a whole, I have arrived at the conclusion that Ms. Walker's fitness was a live issue during the proceedings. Ultimately, Ms. Walker's fitness was the hearing judge's responsibility. The hearing judge erred by failing to take appropriate steps to determine whether Ms. Walker was present in mind.

The role of amicus curiae in complex cases involving self-represented accused with mental, behavioural and/or cognitive challenges

[59] The appellant submits that the dangerous offender proceeding was also unfair because amicus curiae: (a) conceded the admission and use of psychiatric records to prove prior violent acts; (b) failed to advocate for an adequate substitute for Ms. Walker's presence in court; and (c) joined Crown counsel in advocating for a finding of dangerousness and an indeterminate sentence. In light of the appellant's suggestion that amicus curiae was central to the alleged unfairness of the proceeding, I will start by discussing the role assigned to amicus in this case.

[60] Judges have an overarching duty to protect the fairness of the proceedings before them. In the case of self-represented accused, there is a heavy onus placed upon judges to provide them with assistance: R. v. Richards, 2017 ONCA 424, at para. 112. That obligation arises from the judge's role as the ultimate guardian of fair proceedings.

[61] Judges are frequently called upon to perform difficult balancing exercises: preserving their judicial roles as neutral and objective deciders, while at the same time assisting self-represented accused with advancing full answer and defence. In rare situations, despite a judge's best efforts, he or she will not be in a position to alone ensure the fairness of a proceeding. In those situations, amicus curiae may be required to assist the court in meeting that obligation.

[62] It is a self-evident truth that our justice system works best when a judge can dispassionately and objectively take into account opposing views advanced through the adversarial process. As noted by Doherty J.A. in R. v. Joanisse, at p. 57: "The adversarial process operates on the premise that the truth of a criminal allegation is best determined by 'partisan advocacy on both sides of the case'."

[63] In criminal proceedings, a lawyer always represents the Crown. Not so with the accused. This can create enormous challenges in complex cases involving self-represented accused with mental, behavioural, and/or cognitive challenges. In these types of situations, the adversarial process upon which the strength of our justice system is predicated risks losing much of its force. Accordingly, in complex cases where an accused person is "adamant about conducting the defence personally, but is hopelessly incompetent to do so", the court may need the assistance of amicus curiae to meet the court's obligation to protect the fairness of the proceedings: R. v. Imona-Russell, 2019 ONCA 252, at para. 72; R. v. Jaser, 2014 ONSC 2277, at para. 35.

[64] It was clear from the outset that Ms. Walker's circumstances, combined with the complexity of the proceedings, could result in a miscarriage of justice: Jaser (2014), at paras. 35-36; R. v. Ryan, 2012 NLCA 9, at para. 105. Considering the constellation of factors at work, it is understandable that the hearing judge concluded that she would need the assistance of amicus curiae to help her with the important task of ensuring the fairness.

[65] The roles played by amici are many. As noted by Durno J., although the term amicus curiae means a "friend of the court", the requirements placed upon amici exist on a broad spectrum and are adaptable to the specific requirements of each case: R. v. Cairenius, at paras. 42-44, 59, 62. As Rosenberg J.A. put it in R. v. Samra, at p. 444, there is "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." See also: Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43, para. 117.

[66] Under the appointment order in this case, amicus was to undertake the following:

• to receive all relevant Crown disclosure on behalf of the accused;
• 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 conduct cross-examinations of Crown witnesses; and
• to provide such other assistance to the court as the court may approve.

[67] At times throughout the proceedings, the hearing judge also made clear what her expectations were of amicus. A few examples suffice:

(i) I think what I need to do is just clarify your position as amicus. [O]bviously, get instructions from Ms. Walker and essentially act as her counsel, which isn't the traditional role of an amicus.

(ii) I recognize that you are taking on more of an expanded role in that you are seeking instructions from Ms. Walker and essentially advocating for Ms. Walker, but as also amicus for me, and I appreciate that.

(iii) I have asked that you essentially in your role as amicus act as counsel.

(iv) I recognize … that you're amicus and not counsel, although, as I've said many times, my expectation is that you'll, obviously, act as counsel where you attempt to receive instructions and represent her.

(v) I had tried to establish what I expect of [amicus] which is more than just simply helping me, but also, given the serious nature of this matter … to ensure that due process and Ms. Walker's interests are fairly represented.

[68] Although the parties did not raise the point, I pause to note that some might suggest that the role that amicus was appointed to in this case was inconsistent with the views expressed in Ontario v. Criminal Lawyers' Association of Ontario, where both the majority and dissenting opinions cautioned against amicus filling the role of defence counsel. As noted in the majority reasons, where "the terms for the appointment of amici mirror the responsibilities of defence counsel, they blur the lines between those two roles, and are fraught with complexity and bristle with danger."

[69] Among other things, both the majority and dissenting opinions cautioned that appointing an amicus as defence counsel could have the effect of improperly imposing a lawyer upon an accused who has the right to be self-represented: Ontario v. Criminal Lawyers' Association of Ontario, paras. 51-52, 55; R. v. Imona-Russell, at para. 67. Importantly, it was left entirely up to Ms. Walker whether she wished to speak with amicus or not. At times she communicated with amicus and at other times she refused to do so. Indeed, for a short period of time, she retained amicus as her lawyer, only to discharge her a few days later. After being discharged, amicus went back to her original role as amicus.

[70] Both the majority and dissenting opinions in Ontario v. Criminal Lawyers' Association of Ontario also emphasized that the essence of an amicus curiae's appointment lies in his or her duty to the court, a duty that will sometimes require submissions that are unfavourable to an accused. In those types of situations, a tension could arise if amicus was really acting as a defence counsel.

[71] Although the hearing judge may have expressed the matter differently had the guidance of Ontario v. Criminal Lawyers' Association of Ontario been available for consideration at the time of the proceeding appealed from, at its heart, the essence of the amicus appointment in this case was compliant with that decision. The core purpose of the appointment was to assist the court by providing a perspective that Ms. Walker was simply incapable of providing herself; a perspective that was meant to go some distance to restoring the balance within the adversarial process of this serious criminal proceeding: Ian Carter, "A Complicated Friendship" (2008) 54 C.R. (6th) 89, at p. 98. This is entirely consistent with the description of amici's role as offered by Fish J. in Ontario v. Criminal Lawyers' Association of Ontario:

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. An amicus's sole 'client' is the court, and an amicus's purpose is to provide the court with a perspective it feels it is lacking – all that an amicus does is in the public interest for the benefit of the court in the correct disposal of the case.

While the amicus may, in some circumstances, be called upon to 'act' for an accused by the 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.

[72] The amicus' role in this case was not to help the court at large. The court did not need help at large. Nor was it to assist in advancing submissions already before the court through the capable assistance of experienced Crown counsel. Rather, the court needed help in safeguarding the fairness of a highly complex proceeding where an accused with mental, behavioural, and cognitive challenges was without an advocate in the courtroom. In short, the role was to balance out the courtroom and provide a perspective that the court was necessarily lacking, one that nicely dovetailed, as an "incidental result", with the best interests of Ms. Walker.

[73] Amicus was handed and accepted that task. The proper execution of her role was fundamental to the fairness of the proceedings. Unfortunately, that did not happen.

Fresh Evidence Applications

[74] The respondent maintains that the appellant is effectively making an ineffective assistance of counsel claim. Accordingly, the respondent suggests that, like allegations involving the performance of counsel, this court should receive an affidavit from amicus explaining her conduct: R. v. Archer; R. v. G.D.B., 2000 SCC 22, at paras. 26-35. That affidavit has been produced and extensively cross-examined upon.

[75] Ms. Walker resists the admission of the respondent's fresh evidence. She says that the respondent has mischaracterized her claim. Ms. Walker maintains that although the actions and inactions of amicus may have contributed to unfairness, resolving whether there was a miscarriage of justice in this case has nothing to do with assessing the "performance" of amicus through the lens of an ineffective assistance of counsel claim. Specifically, she argues that this court is not being asked to consider the first prong of such a claim, whether the lawyer fell below the standard expected of reasonably prudent counsel: R. v. Gorburn, 2017 ONCA 807, at para. 7; R. v. Stark, 2017 ONCA 148, at paras. 12-14.

[76] While I agree that this appeal does not raise a classic ineffective assistance of counsel claim, I would admit the fresh evidence elicited by the respondent. I agree with the respondent that the bulk of the appellant's position on appeal is inextricably linked to the actions and inactions of amicus. While it is true that the performance criteria within the ineffective assistance of counsel framework does not technically apply in this case, that does not make the fresh evidence inadmissible. In the somewhat unique circumstances here, and as a matter of fairness to counsel whose competence has been impugned, justice requires that she be permitted to explain why certain positions said to have undermined the fairness of the proceedings were taken. In these unusual circumstances, I would admit the respondent's fresh evidence.

[77] The appellant says that if the respondent's fresh evidence is to be admitted, then the court should also accept her fresh evidence. The appellant proffers a letter prepared by senior counsel at the criminal bar, expressing what is said to be an expert opinion on the general role of amicus curiae in criminal cases and specifically opining upon whether that role was fulfilled in this case.

[78] I would not admit this fresh evidence. I agree with the respondent that the opinion is unnecessary to the just resolution of this appeal. As a general rule, opinion evidence is inadmissible. It will only become admissible where, among other things, it is necessary to the litigation: R. v. Abbey, 2017 ONCA 640, at paras. 46-55; R. v. Abbey, 2009 ONCA 624, at para. 93; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, at paras. 16-24; and R. v. Bingley, 2017 SCC 12, at para. 15. This court is well positioned to determine the proper function of amicus curiae and apply those principles to the factual backdrop of this case. There is simply no need for an expert opinion to assist in that task.

Admission of the records to prove prior acts of violence

[79] The appellant had a short criminal record that, by itself, may not have sustained a dangerous offender finding or the imposition of an indeterminate sentence. In fact, it consisted of just one prior act of physical violence, an aggravated assault for which she was sentenced to a single day in custody in addition to 263 days of pre-sentence custody. She also had three convictions for uttering threats, one for breach of probation and one for mischief under $5,000.

[80] Accordingly, Crown counsel determined that it was necessary to prove over 40 other prior acts of threatened and actual violence on the part of Ms. Walker through viva voce evidence and numerous records from the multiple psychiatric institutions where Ms. Walker was frequently involuntarily detained.

[81] The records largely came from the Centre for Addiction and Mental Health ("CAMH"), Whitby Psychiatric Hospital, St. Joseph's Hospital, and St. Michael's Hospital. Those records formed the sole basis upon which the Crown sought to prove approximately 20 prior acts of violence and threatening conduct. What follows are two examples of the types of entries relied upon:

CAMH Notes, September 3, 2003 – "2105 – Pt. remains in 4 pt. restraints [illegible] checked pt. @ 2045. Pt. remains awake, pulses all present, extremities pink + warm to touch. At times, pt. can be heard singing 'we all live in a fucking yellow submarine' and 'I'm going to kill you, I'm going to punch you.' in a singing voice. At present, pt. is resting in bed with 4 pt. restraints."

Whitby Psychiatric Hospital, September 13, 2004 – "1315 … Before staff could approach pt., Krista smashed the phone, knocking it off the wall mounting….1330 Pt. approached to escort into quiet room. Krista was blocking her doorway, refusing interaction, calming + defusing ineffective. Pt. carried into seclusion, pt. attempting to punch and kick @ this time, spitting in staff face ….1336 Received order from Dr. McDonald for seclusion + 4 pt. restraints for increased agitation + aggressive behaviour … 1645 Pt approached [illegible] stat medication to help her settle. Krista continued to state 'I'm not taking any fucking meds', 'I'm going to fucking kill you' … Pt. held while receiving medication, [illegible] pt. bucking, + shaking during this time. Calming ineffective, pt. attempting to spit at staff when exiting the seclusion room stating, 'you'll all be fucking sorry' …"

[82] Crown counsel at the hearing quite fairly raised concerns about the admissibility of the records for the truth of their contents. She alerted the hearing judge to the fact that "in the usual course the defence would object to a number of these entries, or at least there'd be some discussion between the defence counsel representing Ms. Walker, or the accused would have a position in terms of the entries."

[83] Around the time that the admissibility of the psychiatric records was first raised, and admissibility was being discussed, amicus mentioned that there may be mens rea issues respecting some of those acts, and some were committed when Ms. Walker was still a youth and could have been committed in frustration.

[84] Closing in on the end of the dangerous offender hearing, the Crown made submissions respecting the prior acts that she suggested had been proven. Proof of many of those acts rested exclusively upon what was contained in the psychiatric records. Despite the hearing judge encouraging amicus to advance submissions about the records, the amicus ultimately chose not to make any submissions, suggesting that she had "no instructions to that effect." She simply agreed that the Crown had stated the law correctly, acknowledging that the acts had been "proven" and that it was up to the hearing judge to determine the weight to place upon the acts.

[85] In a ruling made shortly after, the hearing judge noted that amicus and Ms. Walker had not challenged the use that could be made of the psychiatric records and concluded that the records proved "violence and aggression on the part of Ms. Walker."

[86] We have not been asked to resolve the admissibility and use issues. Nor could we decide those issues on the truncated record that has been provided. Suffice to say a dangerous offender proceeding is part of the sentencing process and is governed by the same sentencing principles, objectives and evidentiary rules: R. v. Williams, 2018 ONCA 437, at para. 48; R. v. Boutilier, 2017 SCC 64, at para. 53.

[87] The role of amicus was to assist the court in ensuring the fairness of the proceeding. While it was important to communicate with Ms. Walker and receive her input, against the complexity of the situation, there needed to be adjudicative fairness in the adversarial process. This required that there be a counterbalance to the force of the prosecution's case. This does not mean that amicus was required to advance frivolous, time-consuming and unmeritorious arguments. Nor does it mean, though, that amicus had to remain silent simply because she had "no instructions" from Ms. Walker. Quite the contrary.

[88] While I do not suggest that this appeal turns on the failure of amicus to take a position on the records, the amicus' silence on the point is indicative of the failure to comprehend the role to which she was assigned; a role that was central to the fairness of a proceeding involving a self-represented individual who was wholly incapable of protecting herself.

[89] Without deciding the point, I simply observe that this is not a situation where there was nothing for amicus to say about the admissibility and use of the records. For instance, on the topic of how the records should or should not be used, the amicus could have raised the fact that: the records were created during Ms. Walker's involuntary admissions to psychiatric facilities; some of her alleged comments were made in the context of efforts to chemically or physically restrain her; it is unclear whether some of her alleged comments are first or second hand or even more distant hearsay; and it is unclear whether some of the comments are verbatim accounts of what was overheard.

[90] The amicus' treatment of the hospital records is an example of the general failure of the amicus order to achieve its desired effect: to restore some balance in the courtroom.

Excusing Ms. Walker from the Proceedings

[91] Leading up to the evidentiary portion of the dangerous offender proceeding, Ms. Walker only attended court on a sporadic basis. At times she simply refused to be taken from the cells to the courtroom.

[92] The hearing judge was alive to the need to ensure that appropriate systems were in place in the event that Ms. Walker refused to attend the courtroom once the evidentiary portion of the proceeding commenced. The hearing judge made repeated references to having a video link put in place so that, even if she refused to come to court, Ms. Walker could at least see and hear what was happening in the proceeding. The hearing judge encouraged counsel to consider arrangements for a video link. The hearing judge also looked into the matter. No such arrangements were made.

[93] Although it was sometimes rocky, Ms. Walker attended court for the first couple of weeks of evidence. The matter was adjourned from June 23, 2011 for a number of months. When the matter returned on September 16, 2011, Ms. Walker made it clear, in no uncertain terms, that she was no longer prepared to attend court for the hearing.

[94] Ultimately, the hearing judge offered that Ms. Walker might have to be excused from the courtroom and raised the fact that she had previously attempted to look into conducting "this hearing while Ms. Walker is at Vanier [the institution where Ms. Walker was detained] by way of video conference". Ms. Walker suggested that if this happened, she would "break the fucking video camera."

[95] On the next court day, while the authorities were able to get Ms. Walker to the courthouse, she refused to attend court. Having spoken to Ms. Walker, amicus expressed the view that it was "too hard for her" and that Ms. Walker could not "psychologically … handle it".

[96] The hearing judge expressed the view that Ms. Walker should not be "shackled and dragged to court." I pause to note that this was an entirely reasonable and appropriate decision. By this time in the proceeding, it was clear that Ms. Walker's mental state was such that she presented a risk to herself and to anyone dealing with her. The hearing judge was properly concerned for the safety of all. In these circumstances, it was sensible to invoke s. 758(2)(b) of the Criminal Code, permitting an accused who is the subject of a dangerous offender hearing, to be "out of court during the whole or any part of the hearing on such conditions as the court considers proper." The real issue was how to protect procedural fairness with Ms. Walker physically absent from the courtroom.

[97] The appellant contends that proper procedural protections were not put in place.

[98] The hearing judge was informed that a video link could not be accommodated within the courthouse. Although a video link to Vanier was a good option, the hearing judge felt that she could not order Vanier to do that without a formal application and the hearing of evidence. In response, amicus said that Ms. Walker had told her if a video link was arranged, she would not listen. Amicus said that she felt she was in a "position where I really have to act in accordance with what she directs, and what her choice is."

[99] At prior points it had been suggested that if a video link was required, it might be necessary to move courthouses, and this could cause a delay of up to a year. Rather than embarking upon an inquiry into the available options for a video link, amicus suggested that the best course was to permit Ms. Walker to be absent from the proceeding and simply provide her with transcripts of what happened in her absence:

I'm suggesting that we just proceed on the basis of transcripts. That gives her the opportunity to participate if she changes her mind. She can have access to the transcripts at the jail and it's unfortunate, but if she … She is fit, so this choice seems to be a legitimate choice … not to participate, and I think all things in balance, that seems to be the … procedure that's most in accordance with what she wants.

[100] The failure to pursue the video option seems at least partially predicated on amicus' belief about Ms. Walker's fitness, rendering her "choice" to be absent from the proceeding a "legitimate choice". While I will not re-tread the fitness issue, I pause to emphasize that the amicus' submission in that regard stands in stark contrast with aspects of the record.

[101] Ultimately the matter proceeded in Ms. Walker's absence and without her being linked to the proceedings by way of video. This meant that Ms. Walker was not present in court or by way of video to hear the evidence of a number of witnesses, including the expert psychiatrists who opined on Ms. Walker's dangerousness and inability to be controlled in the community.

[102] The appellant contends that amicus undermined the fairness of the proceeding by failing to bring an application for a video link.

[103] The respondent says that video linking the appellant into the proceeding was considered, but it was not a viable option. Among other things, the respondent points out that there was a suggestion that if a video link was pursued, it could have delayed the proceeding. Ms. Walker knew that she could return to the courtroom if she wished to do so. Everyone struggled in the face of Ms. Walker's misbehaviour, and, therefore, the respondent submits, the path chosen was a reasonable one.

[104] While I would not suggest that a video link is the only way that procedural fairness can be achieved when an offender is absent from a dangerous offender proceeding, at a minimum, fairness requires that this option be carefully explored. This is particularly true in the case of a self-represented accused. Although counsel should have assisted in that endeavour by doing as the hearing judge had asked, it was the hearing judge who was responsible for the fairness of the proceeding.

[105] This was the year 2011. It is somewhat difficult to imagine how arrangements could not have been made to provide a video link. Notably, on the very last day of court before judgment was given, a video link was in fact arranged so that the court could inquire into whether Ms. Walker wished to call evidence or make any closing submissions. She declined to do so.

[106] Although Ms. Walker was asking not to be video linked into the proceeding, the proceeding had the potential to (and did) determine her entire future. Stronger efforts to keep this self-represented accused present – at least by video – should have been made.

[107] At a minimum, fairness required that there be a proper exploration of the potential to use a video link. If this meant an application was needed and evidence needed to be called, that is precisely what should have happened. Lack of facilities and delay do not relieve the state of its constitutional obligation to provide an accused with procedural fairness.

[108] Giving transcripts prepared after-the-fact to a self-represented accused, particularly one who has been assessed with such profound cognitive challenges, does not imbue one with confidence that Ms. Walker remained a part of her proceedings once excused from the courtroom. Fairness required more.

The amicus' closing submissions

[109] The patent unfairness of the proceedings took complete form during the closing submissions of counsel, without the self-represented accused present or in a position to hear what was being said. I say patent unfairness because, in my view, what happened next would alone drive the result of this appeal. Amicus argued in favour of Ms. Walker being found a dangerous offender and an indeterminate sentence being imposed.

[110] Advocating against Ms. Walker's interests represents the antithesis of the role that amicus was appointed to perform. She was not appointed to bring her own personal views to bear on how the proceeding should be resolved. She was appointed to perform a specific role: to restore some balance within the adversarial context of the proceeding. To return to the words of Fish J. in Ontario v. Criminal Lawyers' Association of Ontario, her "purpose [was] to provide the court with a perspective it [was] lacking." Her closing submissions not only failed to fulfill that purpose, but undermined it altogether.

[111] The written submissions of amicus contained numerous concessions that the legal indicia for a finding of dangerousness had been met. For instance, amicus wrote that: "It is conceded that the crown has proven a pattern of repetitive behaviour by the respondent of which the offence for which she has been convicted forms a part."

[112] The written submissions also expressed a dim view of Ms. Walker's mental condition. For instance, amicus opined that "it is hard not to regard" the appellant's suicidal ideations and threats of self-harm "as cases of 'crying wolf'." In a literary flourish, amicus continued:

[Ms. Walker] is oppositional with respect to any suggestion of treatment. She has always spurned psychological help. She regards herself as sufficiently normal as not to need treatment or counselling. Indeed, she presents as someone whose pride will not allow her to acknowledge any such need. Much of her rage is against others and appears to stem from them not regarding her as normal; it may be that her greatest passion is to be so regarded. [Ms. Walker's] behaviour can be viewed in operatic terms. [Ms. Walker] […] takes extreme offence at any whisper of insult. She appears never to have hardened herself to the insults she feels when regarded as a 'retard'. She has a despot's appetite for revenge. She would have anyone who looked at her the wrong way executed and would prefer to administer the execution herself. What she lacks is any of the cunning or subtlety of Richard III. Indeed the delivery of her explicit threats is suggestive of a complete lack of effective strategy in carrying them out.

[113] The written submissions were accompanied by oral submissions of the same ilk:

Ms. Walker is just such a sad case. Just to cut to the chase here, as my friend has pointed out, there are, there is hope, but hope only if she wants to help herself. And that seems to be the vicious loop that she's caught in. She has a bad deal with respect to the hardware that she's been dealt.

She seems to have a software in her brain that caught her up in vicious loops that she can't escape. We wish that there was a pill she could take and the rages would disappear and she would become cooperative. Unfortunately, there isn't. I guess the question would be if there was, if somehow she could be given a treatment order, but we don't even have the pill, we don't even have the treatment.

And it's bad because you know she's going to have, Your Honour is going to have to find her a dangerous offender, that's conceded. And it's supposed to be to protect the public, but in fact it will punish her because jail is punishment.

And we suspect, I think all of us, that she can no more help herself than an amputee can create a new limb. Something has got to sort of cut through the vicious cycles that she's caught in, in order for her to be salvaged in some way.

… but it's clear that there's no other solution for Your Honour.

[114] There can be no mistake about it. Amicus joined Crown counsel in advocating in favour of the dangerous offender finding and indeterminate sentence imposed.

[115] That position was taken against the backdrop of:

(i) Ms. Walker being absent from the courtroom and not present by way of video to overhear what amicus was saying;

(ii) Ms. Walker having been repeatedly told by the hearing judge, as previously reviewed in these reasons, that amicus was there to help her;

(iii) amicus spending hours with Ms. Walker, seemingly taking instructions from her; and

(iv) Ms. Walker actually having retained amicus as her counsel, mid-way through the proceedings, forming an actual solicitor-client relationship for a few days.

[116] The respondent maintains that there was nothing wrong with amicus advocating as she did. According to the respondent, amicus was merely acknowledging the obvious: the Crown's case was an overwhelming and insurmountable one.

[117] The respondent's position is consistent with what amicus said during her cross-examination on the fresh evidence application. She acknowledged that she had no instructions from Ms. Walker to concede anything and that Ms. Walker did not see her written submissions. Amicus' position was based upon her view that there was no credible argument that could be made against the imposition of an indeterminate sentence. She personally thought that Ms. Walker was dangerous.

[118] Undoubtedly, amicus misunderstood her role. She had been appointed to assist the hearing judge in protecting the fairness of what was a complex and challenging proceeding. Amicus was appointed because of the clear need to protect Ms. Walker's interests and to balance out a highly skewed adversarial process. Rather than performing that role, she advocated against Ms. Walker and in a manner entirely antagonistic to Ms. Walker's best interests.

[119] It was the responsibility of amicus to say what could be said on behalf of Ms. Walker. If she could not find anything to say in favour of Ms. Walker, then her obligation was to say nothing that could undermine Ms. Walker's interests. If amicus could not carry out her role, she ought to have so advised the hearing judge and asked to be relieved of her role. In the end, Ms. Walker was in a worse position in the context of closing submissions than if amicus had not been appointed at all.

[120] Whether the Crown had an overwhelming case or not is not the issue. Crown counsel was present in the courtroom. Her role was to advance the Crown's position. She did not need help in that regard. The hearing judge did not require assistance in understanding the Crown's position. Yet, in the absence of the accused, in the end, the hearing became a place that looked like there were two Crown counsel in the courtroom. That was unfair.

Other Issues

[121] While the appellant raises other issues, including a suggestion that the hearing judge failed to properly consider the imposition of a determinate sentence, in light of my conclusions already reached, I need not address those other issues.

The curative proviso does not apply

[122] Section 759 of the Criminal Code regulates appeals under Part XXIV of the Criminal Code, the part pertaining to dangerous offenders. The powers of review have been described as being "somewhat more robust" than those found under Part XXI of the Code, dealing with regular routes of appeal in indictable matters: R. v. Boutilier, at para. 81; R. v. Sipos, 2014 SCC 47, at para. 26.

[123] The respondent maintains that, even if there was a fairness or appearance of fairness problem in this case, the appeal should be dismissed because the evidence of Ms. Walker's dangerousness was overwhelming and the conclusions reached by the hearing judge were inevitable.

[124] In rare circumstances, an appeal from a dangerous offender finding or imposition of an indeterminate sentence may be dismissed on the basis that there is no reasonable possibility that the result would have been any different had no error of law been made: R. v. Boutilier, at para. 82; R. v. Johnson, 2003 SCC 46, at para. 49; and R. v. Bedard, 2009 ONCA 678, at para. 103. This case is not predicated on an error of law. Rather, it is predicated on unfairness arising from a cumulative number of procedural deficiencies, including on matters as fundamental as whether the appellant was fit during the hearing. That unfairness resulted in a miscarriage of justice that cannot be solved by the application of the curative proviso.

Conclusion

[125] The fairness of our justice system is most on display when the vulnerable are caught in its grip. While difficulties will sometimes arise where an individual's mental, behavioural and/or cognitive conditions interfere with the regular processes of the justice system, the justice system must respond to those difficulties in a procedurally fair manner.

[126] For everyone involved this was an intensely difficult case, the likes of which are not frequently seen in our court system. Even so, Ms. Walker was as entitled to a procedurally fair hearing as anyone else. She did not receive one.

[127] Ms. Walker asks that the dangerous offender finding and indeterminate sentence be set aside and a new hearing ordered. For the reasons given, I would allow the appeal and grant that remedy.

Released: September 30, 2019

"Fairburn J.A."

"I agree. K. Feldman J.A."

"I agree. I.V.B. Nordheimer J.A."