Court of Appeal for Ontario

Date: 2025-03-24
Docket: C68709
Coram: Harvison Young, Coroza and Gomery JJ.A.

Between:
His Majesty the King (Respondent)
and
J.C. (Appellant)

Appearances:
Matthew R. Gourlay and Brandon Chung, for the appellant
Jennifer Trehearne, for the respondent

Heard: 2024-04-03

On appeal from the sentence imposed by Justice Bruce W. Duncan of the Ontario Court of Justice, dated September 26, 2019.

Coroza J.A.:

I. Overview

[1] Following guilty pleas to one count of robbery and one count of failure to comply with probation, on September 26, 2019, the appellant was designated as a dangerous offender under the Criminal Code, RSC 1985, c C-46, and sentenced to an indeterminate period of imprisonment.

[2] The appellant represented himself during the dangerous offender hearing. The appellant’s position was an unusual one – he wanted the court to declare him a dangerous offender and impose an indeterminate sentence – a position which appears to have stemmed from his frustration with delays in the process. Throughout the proceedings the appellant was disruptive, displayed a defeatist attitude, changed his mind several times, and constantly expressed frustration with the length of the process. The experienced sentencing judge faced the extraordinary challenge of maintaining a fair proceeding.

[3] The sentencing judge appointed amicus to assist him with that task. However, based on the sentencing judge’s understanding of the existing jurisprudence from the Supreme Court of Canada, the sentencing judge limited the scope of the amicus appointment.

[4] The appellant appeals. The crux of his argument is that a miscarriage of justice arose in the proceedings. The appellant contends that the limited appointment of an amicus without an adversarial role doomed the procedural fairness (and the appearance of fairness) of the hearing. The appellant also argues that the sentencing judge conflated the two stages of a dangerous offender analysis pursuant to the Supreme Court’s decision in R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936. He seeks a new hearing.

[5] The sentencing judge had to manage a very difficult litigant. He did so admirably. The record is replete with the sentencing judge’s considerable efforts to assist the appellant. But, to the extent that the sentencing judge restricted the mandate of amicus based on an understanding that the jurisprudence prevented him from assuming any adversarial functions, that is an error in principle: R. v. Kahsai, 2023 SCC 20, 483 D.L.R. (4th) 199, at para. 72.

[6] That is what happened in this case. In the end, I am satisfied that the sentencing judge would have appointed an amicus with a broader adversarial role for the appellant if he had the benefit of the Supreme Court of Canada’s decision in Kahsai. In my respectful view, a different amicus appointment would have impacted the fairness or perceived fairness of the appellant’s hearing. The appellant has discharged his burden of proving that the appearance of unfairness was serious enough to taint the administration of justice and I would allow the appeal.

II. Background

(a) Factual Context

[7] The index offence occurred in February 2017. The appellant entered a Tim Horton’s and produced a large knife. He went behind the counter and grabbed a female employee around the neck. Holding the knife near her throat, he threatened to kill her unless she opened the till. He then forced the employee to ring in a transaction to open the till and he took the cash from inside. While still holding onto the employee, he moved towards the door and then fled on foot. He was arrested nearby shortly after.

[8] The appellant has a lengthy criminal record, including adult and youth convictions. He has been in custody almost continuously since August 2001. As a youth, he was convicted of robbery on two separate occasions, as well as assault on police officers and several charges of failure to comply. Many of his adult convictions were for strings of robberies that he committed while on release. In most of these offences, the appellant used a weapon or threat of a weapon, and the purpose of the crime was to obtain drugs. The appellant also has several convictions stemming from incidents while he was incarcerated.

[9] The appellant has a long history of alcohol and drug abuse. The sentencing judge found that his father introduced him to drugs, sex with sex trade workers, and crime at an early age. The appellant was not only sexually abused by his father, but his father also allowed his friends to sexually abuse the appellant to pay off drug debts. Although the appellant has received treatment for his alcohol and drug use, he has not been able to abstain for any significant period of time.

[10] In November 2017, the appellant pled guilty to one count of robbery in relation to the index offence and one count of failure to comply with probation (at the time of his arrest, the appellant was on probation for a drug store robbery). The Crown applied to have the appellant declared a dangerous offender and sought an indeterminate sentence.

[11] While the appellant was represented by counsel at the time of his guilty plea, he subsequently fired his lawyer and indicated that he wanted to represent himself in the dangerous offender proceedings. Initially, the sentencing judge persuaded him to try another lawyer, but he fired that lawyer prior to the hearing as well and returned to insisting on representing himself.

(b) The Appointment of Amicus

[12] Given the seriousness of the matter, the sentencing judge and Crown agreed that an amicus appointment should be made. The appellant indicated that he did not want an amicus to represent him, but he did not object to the appointment. The appellant also indicated that he did not intend to raise any defence and would, in fact, be seeking to elicit evidence to support the Crown’s case.

[13] Initially, the appellant showed little interest in participating in the hearing and went to some effort to show that he found the proceedings to be a bore and a waste of time. He lay down on the bench in the prisoner’s box as if to sleep and would interrupt the hearing with his own commentary during witness testimony. The appellant made several comments that were against his own interests, stating that he should be declared a dangerous offender and that he wanted to receive an indeterminate sentence. When asked if he would like to call any witnesses, he declined.

(c) The Testimony of Dr. Woodside

[14] During the hearing, Dr. Scott Woodside, a forensic psychiatrist who assessed the appellant pursuant to s. 752.1(1) of the Criminal Code, submitted a report and gave evidence that the appellant does not suffer from any major mental illness. His opinion was that the appellant meets the recognized criteria for Antisocial Personality Disorder and Borderline Personality Disorder aggravated by severe Substance Abuse Disorder. Dr. Woodside also concluded that the appellant was well above average to very high risk for violent recidivism and that he clearly met the definition of a dangerous offender. It was also Dr. Woodside’s opinion that personality disorders, like the appellant’s, generally do not respond well to treatment and that patients suffering from concurrent personality disorders do not tend to benefit from substance abuse treatment to the same extent.

[15] When the appellant was offered the opportunity to cross-examine Dr. Woodside on this testimony, he asked only one question: “[d]o you think I’m a danger to society” to which Dr. Woodside responded “yes.” Amicus also provided some limited cross-examination of Dr. Woodside.

[16] Part way through the proceedings, the appellant apologized for his behavior and indicated that he wanted to be represented by counsel. The sentencing judge agreed to adjourn the hearing and indicated that he was willing to make a Rowbotham order should legal aid be denied. The appellant consented to working with amicus to find representation.

[17] Unfortunately, after expressing his frustration with the proceedings, the appellant returned to his previous position, stating “I do not want to have the weight on my shoulder anymore of a chance of getting out ever.” Again, he asked to be declared a dangerous offender and to receive an indeterminate sentence.

[18] When offered the opportunity to cross examine the Crown’s witness from Correctional Services, the appellant asked only questions about the location where dangerous offenders are incarcerated, the timeframe for assessment, and how he could ensure that he is placed in segregation.

[19] Throughout most of the hearing, the appellant adopted the position of the Crown. When asked whether he wished to call evidence, the appellant refused to call his family and chose to testify himself. He went out of his way to provide examples of his violent behavior and to point out that he wanted to be declared a dangerous offender and receive an indeterminate sentence.

(d) Decision Below

[20] At the outset of his reasons for judgment, the sentencing judge raised concerns over the fairness of the proceedings, stating:

As a result, the defendant has been unrepresented at this hearing by his own choosing. I cannot force counsel on him. Crown counsel has been exceptionally fair but necessarily is adverse in interest to the defendant. The limited role now permitted for amicus pursuant to recent Supreme Court jurisprudence aggravates the situation. Amicus has very ably and diligently performed his duty, but the problem is that appointing amicus is something of a sham. It is the defendant, not the Court, who requires counsel.

Accordingly, I find myself in the position of presiding over an application with the gravest potential consequences to the defendant while being uneasy about the fundamental fairness of the proceeding. Without counsel, the defendant has been severely disadvantaged in his ability to present his case and challenge the Crown’s, though he has shown little interest in doing either. More significantly, given the position he has taken in his “defence”, he has gone without badly needed advice and has been left unrestrained and guided by his emotions and questionable judgment to present a suicidal defence. [Emphasis added.]

[21] After considering the relevant law, the sentencing judge found that the appellant is a dangerous offender and sentenced him to an indeterminate sentence. He found that the index offence met the definition of a “serious personal injury offence” as defined in s. 752 of the Criminal Code and that the appellant had a “pattern of repetitive behavior” pursuant to s. 753(a)(i), which consisted of “targeting lone individuals or small retail outlets for modest gain, looking to acquire drugs or drug money.” Although the sentencing judge acknowledged that the appellant had not physically injured anyone, and it was arguable that he had not caused severe psychological harm, he ultimately concluded it was likely that the appellant will eventually physically harm someone, or at least cause severe psychological harm to a victim.

[22] The sentencing judge went on to consider whether the appellant was a present threat or a threat in the future and concluded that he was. He noted that the appellant has a long criminal history, a personality profile, and that the psychiatric opinion indicated that the appellant is likely to commit similar violent crimes in the future, particularly if he does not seek treatment for substance abuse.

[23] The sentencing judge then concluded that neither a determinate nor a determinate sentence combined with a long-term supervision order (LTSO) would adequately protect the public, citing the same considerations as his analysis of the threat component. He consequently sentenced the appellant to an indeterminate sentence.

III. Issues on Appeal

[24] The appellant raises two issues on appeal:

1. Was there a miscarriage of justice arising from the absence of an effective amicus?
2. Did the sentencing judge conflate the two stages of the Boutilier dangerous offender analysis?

[25] As I will explain, I am satisfied that the sentencing judge’s appointment of an amicus with only a limited role resulted in the appearance of unfairness giving rise to a miscarriage of justice. I agree with the sentencing judge’s own observations that appointing amicus in this case was “something of a sham” given the limited role provided for the amicus, which, of course, was based on the sentencing judge’s belief that the existing jurisprudence did not permit amicus to play a more robust role in the hearing. However, at the time of the hearing, the sentencing judge did not have the benefit of the Supreme Court’s decision in Kahsai. That decision supports the appellant’s position that amicus could have taken on a far more adversarial role in order to restore some balance to the proceedings.

[26] Given that I would allow the appeal on the first ground, I will not address the appellant’s second ground of appeal.

IV. Analysis

Issue 1: Was there a miscarriage of justice arising from the absence of an effective amicus?

(a) The Test for Miscarriage of Justice

[27] To succeed in this appeal, the appellant must persuade this court that the amicus appointment in his hearing created an irregularity so severe that it rendered his hearing unfair in fact or in appearance. He must persuade us that the gravity of the irregularity created such an appearance of unfairness that it would shake the public confidence in the administration of justice: see Kahsai, at paras. 29, 67; and s. 686(1)(a)(iii) of the Criminal Code.

(b) Relevant Legislation Related to Dangerous Offender Proceedings

[28] There is also no dispute about the relevant legislation and the tests that the sentencing judge had to apply at the end of the dangerous offender hearing. Briefly, the designation stage is governed by s. 753(1) of the Criminal Code, which provides four routes to designation. The penalty phase is governed by ss. 753(4) and (4.1), which provide for three options: i) an indeterminate period of imprisonment; ii) a composite sentence consisting of a determinate period of imprisonment and an LTSO; and iii) a determinate sentence for the offence(s) for which the offender was convicted. The sentencing judge shall impose an indeterminate period of imprisonment unless the sentencing judge is satisfied that there is a reasonable expectation that one of the other two options will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

(c) Ontario v. Criminal Lawyers’ Association of Ontario

[29] When the appellant refused to retain counsel and chose to represent himself, the Crown agreed with the sentencing judge’s decision to appoint amicus. At the time of the hearing, the sentencing judge noted that there was a limited role permitted for amicus pursuant to the Supreme Court’s decision in Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3 (“CLA”). In CLA, the Supreme Court held that amici cannot take on the role of defence counsel: at para. 56. In this regard, the court raised several concerns, including the potential conflict between an accused’s constitutional right to represent themselves and an amicus appointed with the role of defence counsel. The court concluded that an amicus clothed with the duties and responsibilities of defence counsel could no longer be called a “friend of the court”.

[30] Given the sentencing judge’s comment in his reasons that “appointing amicus is something of a sham”, he undoubtedly believed that appointing an amicus with a more robust and adversarial role was restrained by CLA. This is not surprising. As summarized by Code J. in R. v. Jaser, 2014 ONSC 2277, at para. 34, the view of many trial judges was that the CLA judgment “limited the trial judge’s duty to assist the self-represented accused by making it clear that amicus can do no more than what the trial judge can do.”

(d) R. v. Kahsai

[31] After the appellant’s dangerous offender hearing concluded, the Supreme Court released its decision in Kahsai. The court in Kahsai went on to clarify its position in CLA, stating that, in exceptional circumstances, where required for trial fairness, amici may take on adversarial roles, including cross-examination and closing argument, as long as an amicus does not actually step into the shoes of defence counsel. The court also reiterated that the concerns raised in CLA remain relevant and are to be considered by judges when appointing amici.

[32] Exceptional cases that may warrant the appointment of an amicus include situations when an unrepresented accused is found fit to stand trial but suffers from mental health challenges; when an unrepresented accused refuses to participate; or when an adversarial perspective is required for a fair adjudication of the case: Kahsai, at para. 57.

[33] In sum, the role of an amicus must balance an accused’s right to conduct their own defence with what is necessary for trial fairness. The court summed up the applicable principles at para. 64:

In sum, in the vast majority of cases, the responsibilities of the trial judge and the Crown will suffice to ensure trial fairness. Once it is determined that amicus is required, the trial judge retains wide discretion to appoint amicus with functions that are responsive to the needs of a case. This may include adversarial functions where necessary for trial fairness — for example, to restore balance to a proceeding when an accused chooses to self-represent and puts forward no meaningful defence. In tailoring the scope of the role for the amicus, the judge will consider the nature of the role of amicus as friend of the court and the circumstances of a case, including how the accused exercises their constitutional rights and what is needed to ensure a fair trial. While there are necessary limits to the adversarial functions that amicus can perform, the scope is broad enough to accommodate what is necessary for trial fairness in a particular case. [Emphasis added.]

[34] The court also held that where a trial judge has failed to give amicus a broader adversarial mandate based on a misunderstanding of CLA, this is an error in principle.

(e) The Limited Appointment of Amicus in this Case

[35] As I mentioned above, the sentencing judge in this case did not have the benefit of Kahsai at the time of the hearing. I am satisfied that if the sentencing judge had seen the more recent guidance of the Supreme Court of Canada, he would not have considered the role of the amicus to be restricted and would have assigned amicus a more robust adversarial role.

[36] A fair reading of the record reveals that both the sentencing judge and the amicus felt constrained. The original order appointing the amicus (dated January 22, 2019) did not detail the specific functions for which amicus was appointed. The addendum order dated March 21, 2019, was mainly focused on ordering tasks related to helping the appellant retain his own counsel. However, the record indicates that the role of amicus in the dangerous offender hearing was more specifically defined in the following ways:

1. In an initial e-mail to the Crown, the sentencing judge specified that the role of amicus would be a “limited” role. It would be to assist the court by bringing to the court’s attention “any matter of procedure, fact or law that appears to be overlooked”. It would not be to cross-examine witnesses. The amicus was also expected to assist the appellant “in over-coming obstacles to defending himself created by his being in custody”, for example, by assisting in “arranging for computer access for reviewing disclosure” and assisting in “having witnesses subpoenaed.”
2. For reasons that are not clear on the record, this initial decision that the amicus’ role would not include cross-examining witnesses was later changed to allow for cross-examination. Accordingly, the amicus was asked by the sentencing judge if he had any questions for Dr. Woodside. When the appellant immediately interjected that amicus should not be asking any questions on the appellant’s behalf, the sentencing judge explained that the amicus would be asking questions “on my behalf … so I don’t have to ask the questions.” The appellant agreed that the amicus could assist the court and the amicus went on to do a relatively brief cross-examination of Dr. Woodside. [2]
3. From my review of the record, the amicus asked only a few questions of Dr. Woodside. I agree with the appellant that the cross-examination was far from penetrating. For example, the amicus asked whether the actuarial tools used to evaluate the appellant were “well validated.” The amicus also asked about the extent to which offenders can “age out” of engaging in risky behaviour. He reviewed the recommendations for programming in the event the appellant were to receive a determinate sentence. And as counsel for the appellant points out, the amicus’s final question was reminiscent of the appellant’s: it was whether Dr. Woodside was pessimistic about the appellant’s ability to avoid getting into more difficulties. Dr. Woodside’s answer was, “[a]t this point in time, yes.”
4. The amicus was asked by the sentencing judge whether he had questions for Karen Thomson (a Parole Board of Canada employee), and the amicus asked a brief set of questions spanning a little under two pages.
5. The amicus did not have any questions for Angela Beecher (a Correctional Services Canada employee), after the appellant had finished cross-examining her (the appellant’s cross-examination focused on the location of institutions, timeframes for assessments, and the process of segregating inmates).
6. The amicus was asked by the sentencing judge whether he had any questions for the appellant after the appellant had testified on his own behalf. The amicus asked a few questions about whether the appellant received different food after he complained about the special diet food he was getting.
7. The sentencing judge asked the amicus if he had any submissions after the Crown finished her closing submissions. The amicus did not make any submissions.

(f) Amicus with a More Robust Role Was Required

[37] Counsel for the appellant argues that, in order to ensure fairness in the proceedings, an amicus who took on a more robust role was required. According to counsel, the failure of the sentencing judge to appoint an amicus with a more adversarial role and for amicus to embrace that role led to a miscarriage of justice. Counsel for the appellant points to the very limited role that the amicus played in the proceedings and highlights the sentencing judge’s own comments about the fairness of the hearing.

[38] For its part, the Crown argues that the sentencing judge struck the right balance between respecting the appellant’s right to control his own defence while ensuring that there was no miscarriage of justice. It submits that an amicus with a more adversarial mandate would have undermined the key strategic choices the appellant had a right to make in exercising his autonomy, and thus would have contravened the limits on amici’s role explained in CLA and Kahsai.

[39] I do not agree with the Crown’s submission.

[40] I disagree that a more robust amicus mandate in this case would have created an “adversary” that could undermine the appellant’s right to direct his own defence in a manner that is inconsistent with CLA or Kahsai. An amicus, even when given adversarial functions, remains a “friend of the court”. And while “[g]enerally, the court must respect the strategic choices of an accused person who is fit to stand trial, even where those choices seem irrational or unwise”, this does not relieve a sentencing judge of their responsibility to ensure that procedural fairness is “jealously guarded and strictly enforced” in dangerous offender proceedings: Kahsai, at para. 58; R. v. Walker, 2019 ONCA 765, 381 C.C.C. (3d) 259, at para. 25.

[41] In my view, this is precisely the type of case in which a more robust and perhaps adversarial perspective from amicus was necessary for the case to be justly adjudicated: Kahsai, at para. 57. I wish to emphasize the appellant’s position was unusual. He was not trying to defend himself. To the contrary, the appellant was trying to join the Crown in its efforts to have him declared a dangerous offender and he was requesting a specific sentence. But there exists no right/entitlement of an offender to receive an indeterminate sentence of incarceration. Amicus assisting the judge to be fully equipped with a broad perspective would not have meant being an adversary against the appellant in this context.

[42] I would add that if I were to adopt the Crown’s position in this case, the sentencing judge would have had no recourse to restore the fairness of the hearing because the amicus would be prevented from putting forward any adversarial perspective at all given that the appellant had adopted the position of the Crown.

[43] In the circumstances of this case, the sentencing judge’s duty was to engage in a full assessment of the evidence and determine whether he was satisfied that the evidence in front of him established that the statutory criteria in s. 753 were met, as informed by relevant jurisprudence. The sentencing judge explicitly recognized this when he commented, “[t]he defendant’s position of course does not relieve me of the duty to make my own determinations.” However, the Crown’s evidence went largely unchallenged in a proceeding that has profound legal consequences for the appellant. To restore balance, the sentencing judge required amicus to “test the strength of the Crown’s case to put the Crown to its burden” of satisfying the criteria under s. 753. In my view, doing so would have better protected the appellant’s interests. It was important that the sentencing judge, in this case, have a perspective adversarial to the Crown to test the Crown’s arguments supporting a dangerous offender finding and indeterminate sentence.

(g) What Are More Robust Functions That Amicus Could Have Been Assigned?

[44] The restricted role given to amicus left the sentencing judge with only one perspective on the evidence being presented to him, and as he noted in his reasons, “Crown counsel has been exceptionally fair but necessarily is adverse in interest to the defendant.” If the sentencing judge had the benefit of Kahsai, I am satisfied that he would have permitted a wider scope for the amicus in this case to ensure fairness in the proceedings. [3]

[45] I will provide some examples of the issues that may have been explored by amicus had a limited appointment not been made.

[46] First, amicus could have been specifically appointed to conduct a more thorough cross-examination to explore and test the s. 752.1 assessment psychiatrist’s opinion evidence. The following are general points (not specific to Dr. Woodside) as to what could have been explored in cross-examining a psychiatrist who did a s. 752.1 assessment, to test the opinion evidence and flesh out what its potential limitations may be. The amicus could have specifically highlighted the following areas that could potentially be explored:

• Whether there were conditions or exceptions limiting the scope of the opinion that the assessor had not yet expressed;
• Clarification of what the limits of the risk assessment tools are, and what they do or do not indicate;
• Whether there were significant gaps in the assessor’s grasp of the information on which the opinion was based;
• Whether reliable details favourable to the accused in the body of information on which the assessor based his opinion were not factored into the opinion, and if they were missed;
• Whether they would have had an effect on the opinion;
• Whether there were any significant points of inconsistency between what the assessor wrote in the report and what the assessor stated in the in-court testimony; and
• Whether the assessor’s testimony strayed outside his area of expertise or into speculation.

[47] Second, amicus could have been appointed to make closing submissions on Boutilier, and could have drawn the sentencing judge’s attention to the way in which Boutilier explains the distinction between whether, first, an offender should be designated a dangerous offender and, if so, whether an indeterminate sentence should be imposed. As pointed out by counsel for the appellant, during the Crown’s submissions at the hearing, the sentencing judge commented, “I can’t imagine being satisfied a person meets the criteria for the designation yet [f]ind that they don’t meet the criteria for the indeterminate sentence.” Counsel for the appellant argues that the sentencing judge erred in his analysis because he appears to have conflated the designation and sentencing stage of the s. 753 analysis.

[48] The comment by the sentencing judge does not necessarily support the argument that he conflated the designation stage and the sentencing stage. The sentencing judge may have only meant that it was difficult for him, in practice, to envision likely facts for such a scenario. As I set out below, I do not need to decide this issue. Nevertheless, it could have been helpful for amicus to draw the sentencing judge’s attention to Boutilier, which explains how treatment prospects that are not “compelling” enough to affect a sentencing judge’s finding of dangerousness may still affect the sentencing decision. The court in Boutilier notes at para. 45:

The same prospective evidence of treatability plays a different role at the different stages of the judge's decision-making process. At the designation stage, treatability informs the decision on the threat posed by an offender, whereas at the penalty stage, it helps determine the appropriate sentence to manage this threat. Thus, offenders will not be designated as dangerous if their treatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern is intractable: see Neuberger, at p. 7-1, by M. Henschel. However, even where the treatment prospects are not compelling enough to affect the judge's conclusion on dangerousness, they will still be relevant in choosing the sentence required to adequately protect the public.

[49] Third, I agree with the appellant that amicus could have responded to some of the Crown’s arguments regarding designation and penalty. As the appellant submits, the amicus could have made submissions that the sentencing judge should also carefully consider the following factors, in their totality:

1. Although most of the appellant’s robberies involved a weapon (a knife, an unloaded real gun, a pellet gun) or a claim that he had a weapon, the appellant only used a weapon (or claim of having one) as a threat, rather than causing physical injury with a weapon (albeit this point does not speak to psychological harm).
2. Dr. Woodside’s testimony that psychiatrists are “not great” at predicting “escalation of offending behaviour” because they do not have tools that assist in an “objective” fashion regarding escalation.
3. The evidence about the general trend of decrease in violent offending with advancing age (“burnout” theory), and Dr. Woodside’s evidence that he would expect to see the appellant having some reduction in his recidivism risk with aging.
4. Submissions drawing the judge’s attention to Dr. Woodside’s evidence that there are certain medications he recommended considering, that could be helpful in curbing the appellant’s use of alcohol, and Dr. Woodside’s evidence that the appellant had indicated willingness to consider trying them.

[50] Fourth, amicus could have discussed with and explained to the appellant the consequences of certain decisions, including the potential implications of deciding to obtain, or not obtain, a second opinion from another psychiatrist. As indicated in Kahsai, amicus “can help the accused by explaining the strategic choices available to them, along with the potential implications of those decisions” (emphasis added): at para. 62. However, amicus cannot “undermine the court’s impartiality” by “advising on key strategic defence choices”: Kahsai, at para. 49.

[51] I recognize that, in the end, the appellant dug his heels in and did not appear to want a second report. However, at other points in the proceeding, the appellant indicated his desire for a second assessment. Some of these occurred after the amicus appointment. I appreciate that it is difficult to predict what might have happened in these circumstances, but it is certainly possible that amicus could have provided practical assistance to the appellant in exploring funding to obtain a second psychiatrist (just as the sentencing judge assigned to amicus the role of assisting the appellant to retain counsel).

(h) Did a Miscarriage of Justice Occur?

[52] It is difficult to say with any certainty that the assistance of amicus would have led to a different outcome. However, the issue raised by the appellant is concerned with the integrity of the administration of justice. “A miscarriage of justice may be found where anything happens in the course of a trial, including the appearance of unfairness, which is so serious that it shakes public confidence in the administration of justice” (emphasis added): R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828, at para. 51; Kahsai, at para. 67. The analysis of whether a miscarriage of justice occurred is “conducted from the perspective of a reasonable and objective person, having regard for the circumstances of the trial”: Kahsai, at para. 67.

[53] In Kahsai, the accused was unrepresented in a double-murder trial and was unable to fully participate. He provided no effective cross-examination of the Crown’s witnesses or coherent argument on his behalf. An amicus was appointed to address some of these concerns, but his role was limited. The court in that case found that a miscarriage of justice did not occur because it was unclear whether the trial judge would have assigned a more adversarial role for the amicus, given that the accused strenuously objected to the appointment. Further, it was also unclear how the amicus could have impacted the fairness of the proceedings in that case because the accused refused to cooperate with the amicus and had no interest in discussing strategy with him.

[54] The circumstances in this case are distinguishable. First, the sentencing judge here felt uneasy about the limited role of amicus; I am satisfied that he would have provided a more adversarial role for the amicus had he believed he could. Second, while the appellant objected to the amicus representing him, when the sentencing judge explained that the role of amicus was to help the court, the appellant told the sentencing judge that he would not oppose the appointment. Finally, while I appreciate that the appellant was, at times, uncooperative and difficult, there are also instances when he consulted with the amicus and made use of his support.

[55] What occurred here was not a minor irregularity. A dangerous offender proceeding is one of the most serious proceedings known to law. As Fairburn J.A. (as she was then) put it in Walker, at para. 24: “[i]t 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.”

[56] While Walker involved a case where the amicus actively advocated for something detrimental to a self-represented person, the amicus in this case was restricted based on a misunderstanding of the law. Initially, amicus was told that he was not permitted to ask questions. Eventually, he was permitted to ask questions but only asked a few during cross-examination and did not make any submissions at all during closing submissions. The administration of justice would have been better served had amicus been given a more robust mandate to balance out the proceedings. The sentencing judge’s statements make clear that he would have done so if he believed he could.

[57] I am satisfied that the appellant has discharged his burden of demonstrating that an objective person looking at the hearing that resulted would see it as so unfair that it would shake their confidence in the justice system. One need look no further than the sentencing judge’s own expressed discomfort with the fairness of the proceeding in his reasons. The sentencing judge found the appellant to be “severely disadvantaged in his ability to present his case and challenge the Crown’s”.

[58] Before leaving this issue, I wish to make it clear that nothing in these reasons should be read as suggesting that the performance of amicus failed to meet competence standards. The sentencing judge pointed out in his reasons that amicus “ably” and “diligently” discharged his duties. That said this was a hearing, where the amicus clearly was limited by the appointment and no doubt felt constrained to take a more active role. The ultimate purpose of examining what the amicus did or did not do is to determine whether a miscarriage of justice occurred; it is not to grade the performance of amicus.

[59] In the end, the sentencing judge “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”: Walker, at para. 72. The sentencing judge felt constrained and did not equip the amicus with the ability to provide the help that he needed to restore the balance in the hearing. Reluctantly, I conclude that a miscarriage of justice occurred, and I would allow the appeal.

Issue 2: Did the sentencing judge conflate the two stages of the Boutilier analysis?

[60] As noted above, it is not necessary to address this ground of appeal.

V. Additional Issues

[61] This appeal was heard and reserved on April 3, 2024. At the hearing of the appeal, submissions were made on the decision in R. v. Nettleton, 2023 ONSC 3390. The Nettleton decision concerned the conduct of Dr. Scott Woodside. On May 7, 2024, this court released its decision in R. v. Hason, 2024 ONCA 369, 171 O.R. (3d) 225, in which the court discussed the Nettleton decision at length. The court requested and received further written submissions from the parties as to the impact, if any, of this court’s decision in Hason, on this appeal. The court has reviewed those submissions. Given my proposed disposition of the first ground of appeal, it is not necessary to address these further submissions.

VI. Disposition

[62] For these reasons, the dangerous offender finding, and indeterminate sentence are set aside, and a new hearing is ordered.

Released: March 24, 2025
“A.H.Y.”
“S. Coroza J.A.”
“I agree. A. Harvison Young J.A.”
“I agree. S. Gomery J.A.”

[1] This appeal is subject to a publication ban pursuant to s. 38 of the Young Offenders Act, RSC 1985, c Y-1.

[2] About 12 pages of transcript.

[3] In R. v. Ahmed, 2023 ONCA 676 at para. 154, the Court observed, “[i]n fairness to trial amicus, I simply wish to note that both Walker and Kahsai, which go some distance in clarifying the duties and responsibilities of amicus curiae, were decided after this matter was heard.” The same could be said of the present case, as the Walker judgment of this Court was issued on September 30, 2019, shortly after the proceedings in this case had ended, and Kahsai was issued by the Supreme Court on July 28, 2023.