Morwald-Benevides v. Benevides

Ontario Reports 127 O.R. (3d) 165 | 2015 ONCJ 532

Ontario Court of Justice Keast J.

September 29, 2015

Case Summary

Family law — Practice — Amicus curiae — Mother in toxic and complex family law proceeding dismissing five lawyers and clearly not wanting trial to proceed — Self-represented mother emotionally unstable and unfocused at outset of trial and collapsing in court — Mother unable to represent herself — Counsel for father seeking to be removed from record as her accounts were in arrears and there was no reasonable prospect of payment — Trial judge appointing amicus curiae to represent both parties and to assist court on issues impacting best interests of children — Amicus not taking instructions from parties and parties unable to dismiss them — Trial judge not exceeding his jurisdiction in appointing amicus in exceptional and unusual circumstances of this case.

The mother in a protracted and complex family law proceeding dismissed five lawyers and clearly did not want the trial to proceed. She claimed to have been abused by the father and to be afraid of being in the courtroom with him. At the outset of the trial, the self-represented mother was almost hysterical, emotionally unstable and unfocused. She collapsed in court. She was denied an adjournment as the medical evidence in support of her request was vague and an adjournment would have delayed the trial for at least a year. The trial judge appointed one of the mother's former lawyers as amicus curiae to represent the mother and to assist the court on issues impacting the best interests of the children. It was made clear to the mother that amicus would not take instructions from her and that she could not dismiss him. Counsel for the father, an experienced and respected member of the bar, then sought to be removed from the record as her accounts were in arrears and there was no reasonable prospect of payment. The trial judge appointed that lawyer as amicus curiae to represent the father. The Attorney General brought a motion to set aside the orders on the basis that the court had no jurisdiction to make the orders and misapprehended the law of amicus curiae.

Held, the motion should be dismissed.

The trial judge had jurisdiction to make the orders appointing amicus curiae to represent the parties and to assist the court on issues impacting the best interests of the children, and did not exceed his jurisdiction in doing so in the exceptional and unusual circumstances of this case. The mother was clearly emotionally incapable of representing herself and was prepared to do whatever it took to prevent the trial from going forward. Even an emotionally stable person could not have effectively managed the varied and complex issues in this case. The primary reason for the first order appointing amicus curiae was to stabilize the proceeding. Because of the sharp polarization of the expected evidence, it was necessary that amicus play an adversarial role to properly test the evidence, so that the trial judge could make findings of fact and credibility. With the father represented and the mother unrepresented, there would be a significant imbalance wherein the father's evidence would not be properly tested, whereas the mother's would. It appeared that counsel for the father had a sound basis for being removed from the record. Letting her off the record would greatly destabilize the trial, especially as the father was a foreign resident. It was doubtful that the father would be able to retain other counsel. Not letting counsel off the record would have forced her to proceed on a pro bono basis, which would not have been fair and which would have added another layer of tension to an already difficult trial. Amicus was appointed for the father for the purpose of stabilizing the proceeding, preventing delay and ensuring a fair trial process. In the circumstances, notice to the Attorney General of the trial judge's intention to appoint amicus was not required, especially as the trial judge did not have the power to set compensation for amicus and the Attorney General's input would have no impact on his decision either as to the identity of the amicus or the terms of an amicus structure.

Motion to Set Aside Orders Appointing Amicus Curiae

Andrew Thomson, amicus curiae for applicant.

Bonnie Oldham, amicus curiae for respondent.

Chantelle Blom, for Attorney General for Ontario.

Decision

[1] Introduction

[1] KEAST J.: — This is the first known case in Canada wherein a trial judge, in a family law proceeding, has made amicus curiae orders, appointing counsel to represent the litigant parents and to ultimately assist the court on a variety of issues impacting the best interests of the children. (The Ontario Court of Appeal appointed an amicus on a narrow legal issue in A. (A.) v. B. (B.) (2007), 83 O.R. (3d) 561, [2007] O.J. No. 2, 2007 ONCA 2.)

[2] This is a decision on an intervenor motion brought by the Attorney General of Ontario (hereinafter referred to as "Attorney General") to set aside the orders, on the basis this court had no jurisdiction to make such orders and misapprehended the law of amicus curiae. The Attorney General was not present when the orders were made. The Attorney General agreed this lengthy trial would proceed and the two counsel would be paid at the legal aid rate, without prejudice to the Attorney General's position to move to set the orders aside and any position taken on subsequent appeals. The trial proper, including this motion, was conducted on the installment plan over a 23-day period and is currently on reserve.

[3] The Latin term "amicus curiae" translates to "friend of the court". These four words sound so simple; the application of the concept is complex.

[4] To appreciate the decisions I made and the position of the Attorney General on this motion, there must be a comprehensive review of the law of amicus curiae.

1. Amicus Curiae -- The Traditional Approach

[5] In a research paper conducted by David Berg -- "The Limits of Friendship: the Amicus Curiae in Criminal Trial Courts" (2013), 59 Crim. L.Q. 67 -- he indicates that current legal discussion suggests that the rule of amicus curiae has been expanding in Canadian courts. This is occurring in the context of trials that are either unusually complex or that run for a lengthy period of time. In "The Amicus Curiae: Friends no More?" (2010), Sing. J.L.S, Chandra S. Mohan authored a paper examining amicus curiae at the international level, outlining the significant changes over time of how the concept is applied, wherein modern amicus is significantly different than the traditional amicus. See, also, "A Complicated Friendship: The Evolving Role of Amicus Curiae" (2008), 54 C.R. (6th) 89 by Ian Carter.

[6] Amicus curiae has its genesis in the 14th century. In those days, many trials were held outside in public squares. The first amici were actually spectator observers of those trials, who would request standing with the trial judge and who offered so-called evidence and opinions on the case that was being tried. Trial judges would often listen to whatever the townspeople had to say, sometimes under oath but many times not. Amicus evolved to a more formal structure wherein lawyers became the amici. In the traditional model of amicus, they were not partial to any party in a trial. They were neutral. They would assist trial courts primarily on the law. They did not have a solicitor-client relationship to the parties. They did not take instructions. Their role was at the invitation of the court to provide non-partisan information and submissions.

[7] The starting point for considering the role of amicus curiae in Canadian courts were comments made by Appeal Justice Marc Rosenberg in R. v. Samra (1998), 41 O.R. (3d) 434, [1998] O.J. No. 3755 (C.A.). Mr. Samra was self-represented at trial. However, during part of the proceeding, he was represented by legal counsel, Mr. Black. Ultimately, Mr. Black was appointed amicus curiae and two other lawyers were also appointed to act as legal advisors. The issue of amicus was raised on appeal. The concern was that, by appointing a former counsel as amicus for Mr. Samra, the appearance would be left that the counsel was actually partisan and advocating for Mr. Samra. Justice Rosenberg had this to say (the underlining is my emphasis unless otherwise indicated):

Further, in my view, appointment of Mr. Black as amicus curiae in these circumstances did not mean that he would be acting "against" his former client, the appellant. 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. It seems to me, however, that the role of amicus curiae in this case is similar to the description given by Ferguson J. in Grice v. The Queen (1957), 11 D.L.R. (2d) 699 at 702 (Ont. H.C.J.):

In its ordinary use, the term implies the friendly intervention of counsel to remind the court of some matter of law which has escaped its notice and in regard to which it is in danger of going wrong.

[8] The concern raised was the appearance that Mr. Black would favour Mr. Samra's position. It was pointed out that, despite this appearance, Mr. Black's role was not to simply adopt or parrot the submissions of Mr. Samra. He was to provide suggestions or give advice. He would not be cross-examining or examining any witnesses nor making submissions in the presence of the jury. It was expected that he could provide the trial judge with legal submissions.

[9] R. v. Samra stands for the principles that amicus is there at the pleasure of the court and does not act in an adversarial way for any party and is only there to assist the court by offering advice. Amicus cannot relinquish the appointment without the permission of the trial judge. The accused person has no authority to appoint or discharge an amicus curiae. The amicus is not governed by the privilege that is central to a solicitor-client relationship.

[10] However, Justice Rosenberg left the door open that there could be other situations in which the court would desire to have the advice of counsel.

[11] In R. v. Cairenius, [2008] O.J. No. 2323, 232 C.C.C. (3d) 13 (S.C.J.), Justice S. Bruce Durno, after reviewing several decisions, stated the following:

While not exhaustive, the summary of the various roles of amicus illustrate the difficulty in a "one size fits all" approach to the appointment of amicus and the fees to be paid. In general, the primary role of amicus is to assist the court without acting on behalf of the accused/applicant. However, that is not always the role of amicus. The roles vary depending on the circumstances under which the appointment is made.

[12] Though Justice Durno left the door open in a general sense as to an expansion of the role of amicus, he went on to state:

First, amicus is generally not counsel for the accused/applicant, there is no solicitor-client relationship, and amicus does not take instructions from a client. The general role of amicus is to assist the court. Amicus, as a friend of the court, has an obligation to bring facts or points of law to the court's attention that might be contrary to the interests of the applicant. This is contrary to the traditional role of defence counsel.

[13] In the case of R. v. Chemama, [2008] O.J. No. 368, 2008 ONCJ 31, Justice Melvyn Green stated:

Apart from assisting [the court], the amicus here appointed will make him- or herself available to assist Mr. Chemama with respect to any questions of law or mixed fact and law that he may choose to put to the amicus. I stress that the amicus does not act for or take instructions from Mr. Chemama. Nor, of course, may Mr. Chemama discharge him or her. The amicus is a servant of the court not Mr. Chemama. Whether Mr. Chemama chooses to . . . follow his or her advice is entirely up to Mr. Chemama.

[14] Though Justice Green states the aspects of the traditional role of amicus, you can see how the blurring of the traditional role and the adversarial aspect on behalf of an accused starts to unfold. There is now a direct focus on the amicus interacting with the accused, not simply interacting with the court. The amicus in this case is directed to discuss with the accused any question of law or mixed fact and law that the accused may choose to put to the amicus. This interaction between the amicus and the accused leaves the door open for a more intrusive role of the amicus.

2. The Evolution of Amicus Curiae

[15] The most significant case that has been influential in expanding the role of amicus curiae at trial is LePage v. Ontario, [2006] O.J. No. 4486, per Appeal Justices Russell G. Juriansz, Michael J. Moldaver and Robert J. Sharpe. Justice Juriansz stated on behalf of the panel:

Certainly, amicus curiae appointed by the court have no solicitor-client relationship with the accused, and may be described as counsel to the court. However, the role of amicus curiae is not strictly defined and continues to evolve.

[16] It is the view of Mr. Berg in his research paper, supra, that this decision is the beginning of the blurring of the role of traditional amicus and amicus acting as counsel to an accused.

[17] In LePage v. Ontario, the Court of Appeal was reviewing a decision of the Ontario Review Board, specifically a disposition of the board after a finding of not criminally responsible due to mental illness. Mr. LePage had refused to appear at an Ontario Review Board hearing and he had refused to allow counsel to attend a hearing to represent him. His refusal to appear had happened on several occasions over many years. The Board was advised that Mr. LePage's decision not to co-operate with counsel was an attitudinal issue and there was no psychiatric or physical illness to explain this position. The decision of the board that was appealed had initially been made in the absence of Mr. LePage's counsel.

[18] The main issue on the appeal was the appellant's persistent refusal to participate in board hearings and the concern raised before the Court of Appeal was whether or not the Board should have done more in order to meet its inquisitorial duties. (The Ontario Review Board operates under an inquisitorial structure as opposed to an adversarial structure.)

[19] The court pointed out that the board had a duty to elicit evidence in favour of the NCR accused whether the accused is present or not at a hearing. The court was of the view the board failed to do its duty to elicit evidence in favour of the accused. This was an error of law. Speaking on behalf of the panel, Appeal Justice Juriansz stated:

. . . I would allow the appeal and order a new hearing. While I would leave to the Board the question of how best to pursue its duty of inquiry, it seems to me that the Board would have benefited by appointing amicus curiae at the hearing, as the Board has done in other cases.

[20] The Attorney General objected to the board's jurisdiction to appoint amicus curiae. Juriansz J.A. dealt with this argument as follows:

In my view, the words of s. 672.5(8) do not preclude the Board from appointing amicus curiae when the interests of justice so require. I would not adopt an unduly technical approach to the question. Certainly amicus curiae appointed by the court have no solicitor-client relationship with the accused, and may be described as counsel to the court. However, the role of amicus curiae is not strictly defined and continues to evolve. One of the roles of amicus curiae has been recognized as being an assistant to the court when "there is a failure to present the issues (as, for example, where one side of the argument has not been presented to the court)" . . . When NCR accused are involved, there is an elevated possibility that all issues may not be presented. In my view, amicus curiae may be appointed by the Board and assigned the role of presenting the issues favouring the accused that otherwise might not be raised. I am satisfied that an amicus curiae who is assigned this role may be said to "act for the accused".

[21] LePage v. Ontario makes it clear that the role of amicus curiae is not strictly defined and continues to evolve. Amicus is now expected as part of its duty to a court or board, as in this case, to solicit information that is favourable to the accused. We now see amicus playing a blended role. The primary duty of amicus is still to the court but in order to assist the court, amicus has to advocate the position of the accused. This case represents the first time, at a provincial appellate level, that amicus can be said to "act for the accused".

[22] The statements in LePage v. Ontario were adopted by the Federal Court in Khadr v. Canada (Attorney General), [2008] F.C.J. No. 47, 2008 FC 46. Khadr was an extradition case that dealt with ex parte hearings for disclosure under s. 38 of the Canada Evidence Act, R.S.C. 1985, c. C-5. The Attorney General for Canada argued against the appointment of an amicus curiae for Mr. Khadr and took the position that, if such an appointment were made, it should follow the traditional model of amicus curiae. Justice Richard G. Mosley, speaking on behalf of the court, stated the following:

Counsel have drawn my attention to a number of cases in which amici have been appointed by the courts in diverse circumstances. In R. v. LePage [citation omitted], the Ontario Court of Appeal considered the authority of the mental health board to appoint an amicus to present submissions on behalf of a person found not criminally responsible by reason of mental disorder. In describing the role of the amicus for a unanimous panel, Juriansz J.A. stated the following at paragraph 29: . . .

Similarly, I am of the view that, in the context of a section 38 application related to a criminal proceeding, such as in the present case, an amicus appointed by the Court may present the issues favouring the person seeking disclosure of the information during the ex parte portion of the proceedings and may be said in that respect to act for the individual at that stage. But the amicus has no solicitor-client relationship with the individual and his or her role will be to assist the court in arriving at a just determination of the issues.

[23] What we are now starting to see is amicus curiae playing a blended role. In LePage v. Ontario and Khadr v. Canada (Attorney General), the courts are drawing a nexus between advocating for an accused and the ultimate ability to assist the court. The purpose in acting for the accused is directly related to the central value of amicus who is to assist the court. There is no solicitor-client relationship in this blended model wherein the amicus can override instructions. In these two cases, the courts are adapting to circumstances and coming up with a different conduit by which they receive assistance.

[24] In addition to case law, another source of influence on the expanding role of amicus curiae is the Report of the Review of Large and Complex Criminal Case Procedures (Toronto: Ontario Ministry of the Attorney General, 2008) prepared by Patrick LeSage (former chief justice of the Superior Court of Ontario) and Michael Code (formerly the Assistant Deputy Attorney General of Ontario, a professor of law and currently a judge of the Ontario Superior Court of Justice). This report was commissioned at the direction of the Attorney General in response to a variety of increasing concerns pertaining to unusually complex and lengthy criminal trials. There are two particular recommendations of the report that have been influential in trial judges' broadening the scope of the traditional role of amicus curiae.

[25] Recommendation 40 states:

Trial Judges should exercise their common law power to appoint amicus curiae in a long complex trial where the accused is unrepresented or chooses to be self-represented and where such appointment is likely to assist in ensuring the fairness of the trial. Wherever possible, the appointment should be made at an early stage, to prevent delays of the trial. The amicus should generally be allowed to play an expanded role, including the examination and cross-examination of witnesses, whenever feasible.

[26] Recommendation 41 states:

The Federal, Provincial and Territorial Ministers of Justice should consider amendments to the Criminal Code to provide a power to appoint counsel for a self-represented accused where the accused's conduct is impeding or disrupting the trial or when the trial judge is satisfied that the accused's conduct of the case is causing an unfair trial.

3. The Supreme Court of Canada on Amicus Curiae

3.1. Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43

[27] In this decision, the Supreme Court of Canada has pronounced on the issue of amicus curiae. Judges in three trial courts in Ontario, one in the Ontario Court of Justice and two in the Superior Court of Justice, appointed amicus curiae on behalf of three accused, not only to advocate on behalf of the accused but ultimately to assist the court. The Attorney General appealed these three amicus curiae orders to the Ontario Court of Appeal, which upheld the trial judge decisions. The Attorney General appealed to the Supreme Court of Canada. The Attorney General heavily relies on this case to argue legal errors were committed in appointing amicus curiae in this matter. Again, in order to appreciate my decision in this case, regard must be given to the three trial court decisions, the Ontario Court of Appeal decision and the Supreme Court of Canada decision. The Criminal Lawyers' Association of Ontario intervened before the Court of Appeal and the Supreme Court of Canada, to argue the correctness of the decisions by the three trial judges.

3.2. R. v. Imona-Russel, [2009] O.J. No. 6456, 2009 CarswellOnt 9725 (S.C.J.), per Justice Maureen D. Forestell

[28] In the first case, the accused William Imona-Russel was charged with first degree murder. He retained and then discharged several experienced lawyers who had been retained pursuant to legal aid certificates. As a result, Legal Aid Ontario refused to fund any new lawyers. At the request of Crown counsel, Justice Frank N. Marrocco of the Superior Court of Ontario, who was not the trial judge, made an order appointing counsel as amicus curiae to ensure that the proceedings could continue if the accused continued his serial discharge of defence counsel. That order contemplated a limited role for amicus since the accused had re-retained one of the lawyers whom he had previously discharged. The order set out the duties of the amicus. It was to familiarize himself with the brief and, if the accused discharged his lawyer or if the court so ordered a discharge, to advise the accused about points of law and legal issues, to discuss legal issues with the Crown on behalf of the accused and to speak to the court on behalf of the accused in relation to those issues.

[29] Mr. Imona-Russel continued his pattern of retaining and then discharging counsel. He ultimately applied to Justice Ian V.B. Nordheimer of the Ontario Superior Court, for state-funded counsel through a Rowbotham application. This application was refused. See R. v. Imona-Russel, [2008] O.J. No. 5405, 2008 CarswellOnt 7548 (S.C.J.). His first reason was that the accused brought his inability to obtain legal aid funding on himself by repeatedly discharging counsel. Second, of interest, Justice Nordheimer was of the view that amicus was available to assist in ensuring a fair trial. He stated the following:

I accept that amicus curiae is not a substitute for one's own personal counsel. The appointment of amicus curiae is not intended to act as a replacement for an accused person's own counsel. What the appointment of amicus curiae does do, in a case where the accused person is unrepresented, is militate against any assertion of an infringement of the fair trial rights of the accused person by ensuring that there is counsel available to assist the court and the accused person as needed.

[30] Ultimately, the trial counsel of record for the accused was permitted to withdraw and then the accused brought a further Rowbotham application, which was now dismissed by the trial judge, Justice Maureen D. Forestell. See R. v. Imona-Russel, [2009] O.J. No. 6456, 2009 CarswellOnt 9725 (S.C.J.). The accused was no longer represented by counsel even though there was in play an amicus curiae counsel with a very limited role. The judge raised the question of whether the role of amicus should be expanded. I might add that the original order pertaining to the duties of amicus were very much in sync with the traditional definition and boundaries of amicus. The accused opposed the expansion of the role of amicus. He also stated to the court that he would not co-operate with the amicus. Justice Forestell ordered the role of amicus be expanded on the following terms:

I ordered that amicus cross-examine witnesses, make objections to inadmissible evidence and raise legal argument on behalf of Mr. Imona Russel. Effectively, I ordered amicus to defend the case as if he had a client who was choosing to remain mute.

[31] As the proceedings continued, Justice Forestell once again intervened and further expanded the role of amicus. To summarize her comments, she indicated that in addition to cross-examining witnesses and making legal arguments and objections on behalf of the accused, that amicus would also attempt to take instructions from the accused in the same way that he would do if he were in a traditional solicitor-client relationship and that amicus would act on behalf of the accused. The judge went on to indicate that the accused could not discharge amicus and could not stop the amicus from participating in the trial.

3.3. R. v. W. (P.J.), [2010] O.J. No. 4669, 2010 ONCJ 501, per Justice John D. Keast

[32] In the second case, I was the trial judge wherein Mr. W. was convicted of a number of serious indictable offences and the Crown applied to have him declared a dangerous offender. In addition to requesting a dangerous offender designation, the Crown was requesting that Mr. W. be sentenced to imprisonment for life. Mr. W. had dismissed two lawyers since the commencement of the proceedings and was unrepresented. While there was a legal aid certificate outstanding, Mr. W. had been unable to find a lawyer to accept it because of the ongoing boycott of legal aid work by criminal defence lawyers. I was of the view that Mr. W. was not capable of representing himself, given the complex expert evidence that would be led on the application. I concluded the fair trial process depended on the appointment of amicus curiae. I also made the appointment to stabilize the proceedings, given the dismissal of prior counsel. He would not be able to dismiss the amicus, and the amicus would proceed if Mr. W. decided to not co-operate.

[33] Mr. W.'s family contacted a defence counsel who then applied to the court to be his counsel through the conduit of an amicus curiae order. This counsel made it clear she was not prepared to engage in the case at the legal aid rate. In appointing counsel as amicus, I expected her to establish a relationship if possible with Mr. W., with the ability to override Mr. W.'s instructions in his best interest.

3.4. R. v. Greenspon, [2009] O.J. No. 5006, 2009 CarswellOnt 7359 (S.C.J.), per Justice Lynn D. Ratushny

[34] In the third case, Mr. Greenspon was defence counsel acting on behalf of the accused who was charged, along with five others, with first degree murder. There were several adjournments caused by the accused changing counsel. At the time that the trial date was finally set, the matter was before the court for over five years. Some two and a half months before trial, the accused discharged Mr. Greenspon, which threatened to derail the trial. Justice Ratushny appointed Mr. Greenspon as amicus curiae.

[35] In addition to making the amicus orders, the three judges also set rates of compensation that were above the legal aid rate.

3.5. R. v. Imona-Russel (2011), 2011 ONCA 303, 104 O.R. (3d) 721, [2011] O.J. No. 1792 (C.A.), per Appeal Justices Marc Rosenberg, Stephen T. Goudge and Robert P. Armstrong

[36] The primary issue in the appeal by the Attorney General was not the jurisdiction of the three judges to make amicus curiae orders. Instead, the focus was on whether the judges had the jurisdiction to fix the rates of compensation.

[37] Though the issue before the Court of Appeal was not the jurisdiction of the three trial judges to make amicus curiae appointments, the court did in lengthy reasons confirm that Superior Court judges have the power to make amicus curiae appointments because of the inherent jurisdiction of that court; and the Ontario Court of Justice, as a statutory court, also has the power to make amicus curiae appointments and to set the terms and conditions of those appointments, based on the court's implied power to control its own processes.

[38] The Court of Appeal upheld the three trial judges in relation to their compensation orders.

4. Ontario v. Criminal Lawyers' Association of Ontario, supra

[39] The Attorney General appealed to the Supreme Court of Canada. The issue of the jurisdiction of the three trial judges to make the amicus orders in the first place was not appealed. The only issue appealed was the jurisdiction to make orders for the compensation of amicus. Though the Attorney General did not appeal the jurisdiction to make the amicus orders in the first place, two of the provincial intervenors challenged the actual amicus orders.

[40] In a five to four decision, the Supreme Court concluded that trial judges do not have the jurisdiction to set compensation rates for amicus curiae appointments. The central feature of the decision was that each branch of our constitutional democracy (legislative, executive and judicial) respect the boundaries of each other. Each branch will be unable to fulfill its role if it is unduly interfered with by the others. It is fundamental to the working government as a whole that all these parts play their proper role and show deference to the activity and sphere of the other:

While the rule of law requires an effective justice system with independent and impartial decision makers, it does not exist independently of financial constraints and the financial choices of the executive and legislature. Furthermore, in our system of parliamentary democracy, an inherent and inalienable right to fix a trial participant's compensation oversteps the responsibilities of the judiciary and blurs the roles and public accountability of the three separate branches of government. In my view, such a state of affairs would imperil the judicial process; judicial orders fixing the expenditures of public funds put public confidence in the judiciary at risk.

. . . the ability to set rates of compensation for amici does not form part of the inherent jurisdiction of a Superior Court. Given this conclusion, it follows that the ability to set rates of compensation for amici does not form part of the implicit powers of a statutory court to function as a court of law.

[41] Although the court was sharply divided on the issue of trial judges' jurisdiction to set compensation rates, it was not divided on the issue of trial judges' jurisdiction to make amicus orders in the first place. The court was unanimous in setting out the features of amicus and providing guidelines and concerns for trial judges and provincial appellate courts.

[42] The court outlined the features of amicus:

Accordingly, courts may appoint an amicus only when they require his or her assistance to ensure the orderly conduct of proceedings and the availability of relevant submissions. And once appointed, the amicus is bound by a duty of loyalty and integrity to the court and not to any of the parties to the proceedings.

It is uncontested in this case that trial judges have jurisdiction to appoint an amicus curiae and to determine the role of the amicus in the proceedings before them. It is uncontested as well that the Attorney General who has conduct of the prosecution -- in this case the Attorney General of Ontario -- is then obliged to remunerate the amicus appropriately.

Exceptionally, trial judges may appoint an amicus curiae to ensure the orderly conduct of proceedings and the availability of relevant submissions. They should not be required to decide contested, uncertain, complex and important points of law or of fact without the benefit of thorough submissions.

Courts are empowered in some instances by specific statutory provisions, such as s. 486.3 of the Criminal Code, R.S.C. 1985, c. C-46, to appoint counsel for particular purposes. They may also order the appointment of defence counsel pursuant to a Rowbotham application as a remedy under s. 24(1) of the Charter.

The appointment of amici curiae derives, however, from different sources and should be kept conceptually distinct.

I think it useful nonetheless to provide some guidance regarding the circumstances in which an amicus appointment is appropriate. An amicus curiae may play many roles but it is important to recognize at the outset that an amicus is not a defence counsel. Once clothed with all the duties and responsibilities of defence counsel, the amicus can no longer properly be called a "friend of the court".

The discretion of trial judges to appoint an amicus is not unrestricted. The power to appoint should be exercised sparingly and with caution, and appointments should be in response to specific and exceptional circumstances. Trial judges must not externalize their duty to ensure a fair trial for unrepresented accused by shifting the responsibility to amici curiae who, albeit under a different name, assume a role nearly identical to that of defence counsel.

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

If appointed, an amicus may be asked to play a wide variety of roles: R. v. Cairenius (2008), 232 C.C.C. (3d) 13 (Ont. S.C.J.), at paras. 52-59, per Durno J. There is, as Rosenberg J.A. pointed out in R. v. Samra (1998), 41 O.R. (3d) 434 (C.A.), at p. 444, "no precise definition of the role of amicus curiae capable of covering all possible situations in which the court may find it advantageous to have the advice of counsel who is not acting for the parties".

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: R. v. Lee, 125 C.C.C. (3d) 363 (N.W.T.S.C.), at para. 12.

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

Where a trial judge appoints an amicus, these distinctions between an amicus and court-appointed defence counsel should be made clear both to the amicus and to the accused. The blurring of the line between the two roles in the present cases causes me some concern; however, as pointed out, that is not the issue before us.

5. A Summary of the Features of Amicus Curiae

[43] The following is a summary of the features of amicus curiae extracted primarily from the Supreme Court of Canada and provincial and federal appellate courts:

(a) The ultimate and primary purpose is to provide assistance to trial judges on issues of law or facts, wherein the trial judge is of the view that an effective, fair and just decision cannot be made without such assistance.

(b) Such orders are made to ensure a fair trial process, the orderly conduct of proceedings and to ensure the proper administration of justice.

(c) It is usually driven by the initiative of the judge, but may also occur at the request of one or more of the parties.

(d) There are many scenarios to which amicus may apply. The class of scenarios is not closed. There is no "one size fits all" standard.

(e) The power to appoint has a high threshold. Such should be exercised sparingly and with caution. Appointments should be made in response to specific and exceptional circumstances. A judge must not externalize his or her duty to ensure a fair trial of unrepresented accused by shifting the responsibility to amicus curiae, who under a different name assume a role nearly identical to that of defence counsel.

(f) The judge decides the terms and conditions of the role, which may vary widely.

(g) Caution is to be exercised if an appointment mirrors the role of a defence counsel. The primary purpose must still be to assist the court, though there may be an incidental beneficial result for a party. In such a case, clear directions must be given to the party and amicus.

(h) There is no solicitor-client privilege between an amicus and a party.

(i) Only the judge can dismiss an amicus, not the party.

(j) An amicus may override so-called instructions or directions from a party. An amicus may operate if the party does not co-operate or remains mute or chooses not to attend court.

(k) Once an amicus order is made, the Attorney General is obligated to compensate the amicus. Although amicus may often be paid by the legal aid fund, that is not always necessarily so. There should be a negotiation process between the Attorney General and an intended amicus as to compensation. The judge may play a role in this process that is persuasive only. If the judge is not satisfied as to the compensation issue, the judge ought to consider the issuing of a stay of proceeding until the compensation issue can be resolved.

6. History and Reasons for the Amicus Orders

[44] The reasons on the record for the amicus orders require supplementary comments. I was in a crisis situation during trial, wherein rapid decisions had to be made. In the circumstances, it was not feasible to provide full reasons.

[45] This was a lengthy proceeding. The application was filed on May 15, 2012. The interim stage was fractious. There were several contested motions and two appeals of motion decisions. For example, there were 11 court appearances just to deal with issues of interim access. There were several settlement conferences, more than usual, with aggressive judicial intervention, in an effort to settle the case. In reviewing the continuing record at the trial management conference stage, and information gleaned at the trial management conference, it was evident that the evidence would be highly polarized and conflictual. Vigorous advocacy would be required to sort out the facts from the hardened positions of the parties. The trial lasted 23 days, finishing in late June 2015. The decision on the trial proper is on reserve.

[46] This married couple have three children. The father is a resident and citizen of the country of Bermuda. The mother is Canadian and resides in Parry Sound, Ontario. For a period of time, the family resided in Bermuda.

[47] This case has generated many complex issues. One issue dealt with access of the father in Bermuda. The mother's position is the children would be abducted. Her sources of materials would indicate that Bermuda courts have a poor compliance with the Hague Convention (Hague Convention on the Civil Aspects of International Child Abduction, October 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89). In addition to Bermuda case law, there was a congressional report from the American Congress in Washington, D.C.; and further documents from the United Kingdom Parliament in London, expressing concerns about Hague Convention compliance.

[48] The mother alleged domestic violence against herself, often in the presence of the children. She also alleged violence directly to the children. Her position was no access to the father or as a fallback supervised access only. The mother was strident as to her position as to no access in Bermuda.

[49] The father alleged parental alienation, that the mother had conditioned the children against him. During the pre-trial stage and after a review of the continuing record, which counsel agreed would be filed in the trial proper, it became apparent to me there were clinical issues with the parents and children; and that a psychological assessment was indicated, which I eventually ordered after several days of trial.

[50] Most of the pre-trial and during trial access by the father was highly contentious and required legal representation and judicial intervention to resolve. For example, when the father arrived in Canada for one block of time of access, he was faced with a last-minute motion to stop the access. For most of the access, last-minute terms and conditions were being sought by the mother before access could proceed. This type of conduct inflamed this proceeding. He was coming to Canada under considerable financial expenses and had to fight for the access to even go ahead. Further, when he was in Canada during the blocks of time for the trial, there was constant skirmishing over the particulars of access while the trial was going on.

[51] The child support issues were complicated. There was a gross-up issue because of the different tax treatment of the father's income in Bermuda compared to Canada. There was a retroactive child support issue. There was an issue of a reduction of child support because of the high cost of the father exercising access in Canada.

[52] Before the trial commenced, I had identified some logistical trial issues. The mother had alleged that she was deeply fearful of the father and did not want to be in a courtroom with him and certainly did not want to give evidence with him in the courtroom. It was considered that the mother might provide evidence from her residence or lawyer's office via a video feed with the courtroom or in an isolated room in the court house.

[53] There were potential logistical issues involving Bermuda evidence and the setting up of a video feed from either a courtroom or other facility in Bermuda.

[54] One of the issues identified at the trial management conference was some form of integrating the courts in Bermuda with this court. This would involve an in-time video feed with a judge in Bermuda or it might involve a mirroring order in Bermuda that was accepted by the Bermuda courts. The purpose of this was to strengthen compliance with the Hague Convention in Bermuda, if any issues arose.

[55] The first scheduled day of the trial was April 11, 2014. The first series of dates were scheduled months earlier. At the outset of the trial, the case was almost two years old.

[56] The events of the week before the trial influenced my decision to appoint amicus curiae for the mother. She brought two motions to adjourn the trial. She was represented by counsel. The first was a recusal motion that, if I granted, would have had the effect of adjourning the trial. I dismissed the motion.

[57] The second motion was to adjourn the trial on the basis of child support arrears not being paid. She brought this motion just before trial although the arrears had been outstanding for quite some time. The timing of that motion concerned me. I dismissed the motion. If I had granted the motion, the effect would have been an indeterminate delay of the trial. The mother was not prepared to commit to specific future trial dates, taking the position she had no idea when the arrears would be paid.

[58] Days before trial, the mother immediately appealed both decisions to the Superior Court. She also requested the Superior Court stay both motion decisions, and to stay the trial pending the completion of the appeal process. The Superior Court dismissed her motion to stay the decisions and to have the appeals heard before the trial commenced.

[59] During the lengthy pre-trial stage, the mother on several occasions sought to adjourn motions and conferences. Before the trial even commenced, a pattern had developed by the mother of seeking to delay the proceedings. Before the trial commenced, it was apparent to me, the mother did not want the trial to proceed.

[60] The trial opened with the mother self-represented. She was represented by counsel on the two pre-trial motions and appeal, but that was a limited retainer, not a retainer for trial. In the previous almost two years, the mother had dismissed five lawyers. The mother brought a motion at the commencement of trial for an adjournment on the basis of medical grounds. She tendered two medical letters from her family physician.

[61] In the first hour of the trial, it was apparent to me the mother's behaviour was bordering on hysterical. She was emotional and hyper and had a difficult time focusing. Fuelling this, her mother was in the courtroom and was emotionally distraught.

[62] Later in the morning, the mother collapsed in the courtroom. The clerk called an ambulance and she was rushed to hospital. She did not re-attend court that day. Court was recessed to 2:00 p.m. In the afternoon, her brother attended court on her behalf.

[63] Over the lunch hour on the first day of trial, I made my decision to appoint an amicus curiae on behalf of the mother. It was clear to me that she was incapable of self-representing. The trial was destabilized and something had to be done to salvage the situation. I requested the attendance of Andrew Thomson, a local barrister and solicitor, to attend the afternoon session of the court. Mr. Thomson is a seasoned litigator, well-regarded and well-respected by the bench. He was a previous counsel to the mother and had extensive knowledge of the file. Mr. Thomson, somewhat reluctantly, agreed to the amicus appointment.

[64] I was not prepared to adjourn the trial based on the two medical letters. I requested the attendance of the physician on the next day of the trial. The physician was extensively questioned. The physician recommended an adjournment of the trial based on alleged medical and mental/emotional reasons. I dismissed the motion to adjourn the trial. The medical evidence was vague. I questioned whether or not the mother's medical and emotional circumstances were any different than other litigants who come into the courtrooms. Further, the doctor was unable to give a timeline when the mother would be fit enough to go through a trial. The mother's position, if accepted, would have led to an indeterminate and lengthy adjournment of the trial.

[65] In this jurisdiction, if a trial is lost, a new trial date cannot be accommodated for at least six months, longer if the trial requires multiple days such as this one. Had I granted the motion, since neither the doctor nor the mother knew when she might be fit enough for a trial, a new trial date could not have been set at that time. So the court would have to wait until the mother was medically ready for trial before a new trial date could be set. This would have pushed the timelines out for a year or more.

[66] Based on my review of the continuing record in preparation for the trial management conference and what was learned at the trial management conference, I considered this to be a high conflict and particularly toxic case, which would constitute some 1 per cent of our volume of cases. This view was reinforced by my observations of the mother's demeanour in the courtroom in the week prior to the trial, when she brought the motions to adjourn. Although represented by counsel, she was visibly emotionally distraught.

[67] The primary reason for appointing amicus curiae was to stabilize the proceeding. Her emotionality was a significant barrier for her to self-represent. She was unable to focus and appeared disoriented. Her emotional presentation was so severe that she could not have been managed in a courtroom. In the two years prior to trial, she repeatedly tried to adjourn conferences and motions. Given the events of the week before trial and the events on the first day of trial, I was satisfied the mother was prepared to do whatever it took to prevent a trial from proceeding or being completed.

[68] Another factor in making the appointment was the spectre of domestic violence and the impact it may have had on the mother. In her affidavits in the continuing record, and in particular, the comments contained in an e-mail that was filed with the court in the week before the trial, I was struck by the intensity and desperation as to her deeply rooted fear of the father. Although these allegations at the time were unproven, her strongly held belief that she was severely abused was contributing to her emotionally unstable presentation. Whether there was any basis for these views is irrelevant; her feelings were genuine and valid to her and strongly perceived. Being alone in the courtroom with the father was beyond what she could bear. I needed to calm her down so I could effectively deal with the evidence and issues and ultimately the best interests of the children. She needed a buffer. Amicus curiae was the solution.

[69] The issues in this case were varied and most complex, as already pointed out. Even an emotionally stable person could not have effectively managed them. I would have been left in a significant deficit position to adjudicate on the best interests of the children.

[70] I needed assistance in a significant way. This case was not remotely close to the garden variety case as mentioned by the Supreme Court of Canada, wherein an amicus order should not be routinely made. Because of the sharp polarization and conflict of the expected evidence, I wanted amicus to play an adversarial role to properly test the evidence, so I could make findings of facts and credibility -- which would then allow me to effectively adjudicate on the best interest test.

[71] Aside from the complexities of findings of facts and credibility, this case had complex legal issues. As a matter of law, what is required to terminate access to a parent or to direct permanent supervision of access? What are the legal requirements for parental alienation? What is the law of Bermuda as such relates to an application in the Bermuda courts under the Hague Convention? What are the legal principles for grossing up child support because of different tax treatments of income in different jurisdictions? What are the legal principles for the deductions from child support of travel expenses to facilitate access? The mother would not have been able to assist me, even if she was emotionally stable.

[72] I knew at the time I made the amicus order that it was likely I would be ordering a psychological assessment. The mother was strongly against this and would not appreciate the legal principles in settling the terms of an order or the requirements in the order by a psychologist.

[73] With the father represented and the mother now unrepresented, there would be a significant imbalance wherein the father's evidence would not be properly tested, whereas the mother's would, leaving me in a deficit position on the material facts and legal issues.

[74] I am satisfied that the high threshold required to make an amicus curiae order has been met. This case constitutes exceptional circumstances.

[75] Once having made the order, it was made clear to the mother she could not dismiss Mr. Thomson, as she had done with five other lawyers. She was also told that Mr. Thomson was not obligated to follow her instructions or directions. He would make the final decision how to conduct the case. He would attempt to elicit her co-operation, but could proceed without such. Also, he could proceed even if she did not attend court.

[76] It was suggested that I could have adjourned the trial to allow the mother to apply for legal aid. This was not an appropriate course of action, for the mother would have finally achieved what she had been seeking all along, which was an adjournment of the trial. Such course of action would have caused lengthy delay. If she did qualify for legal aid, I would have to wait until she selected counsel before setting further trial dates. Since she already dismissed five lawyers, she would have great difficulty finding new counsel, considering the small size of the bar. Since she wanted the trial to be adjourned in the first place, this would have given her a ready-made excuse to continue the delay.

[77] And if she did not qualify for legal aid, then what was I to do? I knew Mr. Thomson was prepared to accept legal aid, at least in the first instance, subject to further discussions with the Attorney General. He was prepared to stay involved even if those further fee discussions were not successful. With amicus curiae now involved, the trial could proceed.

[78] In relation to the amicus order for the father, I was suddenly faced with an unusual situation. Prior to the date of the order, the father had a stable solicitor-client relationship with Ms. Oldham, who had been his counsel from the beginning. On June 11, 2014, Ms. Oldham requested a meeting in chambers, which included Mr. Thomson.

[79] She advised she was bringing a motion to be removed from the record. Her accounts, which were substantial, were in arrears and there was no reasonable prospect of payment. Further, because of the psychological assessment, which the father was against, and other factors, several more days were added to the trial. This had a substantial impact on the fee expectations, wherein the father was unable to meet a significant fee increase.

[80] I was blindsided by this turn of events and was caught between the proverbial "rock and a hard place". My first inclination was to deny any such motion. Some judicial officers in these circumstances may not have allowed her off the record. I had to consider the culture in Parry Sound, which is a single-judge location for both the Ontario Court of Justice and the Superior Court of Justice, which has a small bar. Ms. Oldham is a well-respected litigator, a leader in the local bar and known to both courts for her involvement and co-operation in the effective and smooth administration of justice. She takes her role as an officer of the court seriously.

[81] It appeared that she had a sound basis for being removed from the record, given the substantial increase in the expected trial time, which she could not have reasonably expected to know when discussing fee arrangements with her client.

[82] Letting her off the record would greatly destabilize the trial especially with her client being a foreign resident. It was doubtful that he could carry on litigation of this magnitude from a foreign country. Given what I learned about his finances, it was doubtful that he would be able to retain another counsel.

[83] Not letting Ms. Oldham off the record would have forced her to proceed on a pro bono basis. Conducting a matter of this magnitude on a pro bono basis would not have been fair and would have added another layer of tension to an already difficult trial. Given the role Ms. Oldham plays in the local administration of justice, I was not prepared to do this.

[84] Adjourning to ascertain whether the father qualified for legal aid was not an option. I was confident he would not qualify. His income was too high, he owned property in Bermuda and he had no legal status in Canada.

[85] The decision to appoint amicus for the father was influenced by the reasons to appoint amicus for the mother. The two are connected. I could not consider the father's situation independent of the mother. Without counsel for the father, there would have been an imbalance in testing the evidence in the way I required. A lopsided situation, whether it is from the mother's perspective or the father's, would not have been of assistance to me. Although the father was being benefited, there is a nexus between that benefit and the assistance I required.

[86] So I focused on my needs, already articulated, which have not changed. Though the father did not have the emotional volatility of the mother, he could not have self-represented on a complex case such as this. I needed the adversarial system in order to properly test the evidence, not only from the perspective of the mother, but also from the perspective of the father. Further, I needed a counsel for the father to deal with the courts in Bermuda.

[87] The decision to appoint amicus for the father was for the purpose of stabilizing the proceeding, preventing delay and ensuring a fair trial process.

7. The Position of the Attorney General

7.1. Amicus as Defence Counsel

[88] The Attorney General conceded that a judge in a family trial has the jurisdiction to appoint amicus curiae. However, the Attorney General submits that I exceeded that jurisdiction. Further, it was submitted the three trial judges in the Criminal Lawyers case would not be able to make their amicus orders today.

[89] The basis of the argument is these orders were analogous to appointing amicus substantially in the role of defence counsel, which is contrary to the ratio of Criminal Lawyers. The more an amicus order mirrors traditional defence counsel, the less amicus is a friend of the court. A trial court does not have jurisdiction to, in essence, appoint a defence counsel under the guise of an amicus structure.

[90] I disagree. The issue of jurisdiction to make the orders was not before the Supreme Court. Justice Morris J. Fish, in particular, made this clear. The court did not set aside the amicus orders made by the three trial judges. The ratio of Criminal Lawyers is that trial judges do not have the jurisdiction to make orders setting compensation rates. The Supreme Court did not say that an order that mirrors defence counsel exceeds the jurisdiction. The court did not establish a "one size fits all" standard. Whether an amicus order is appropriate must be determined on a case-by-case basis.

[91] What the Supreme Court was doing was establishing guidelines and concerns for consideration by trial judges. In particular, if a trial judge saw amicus as a traditional counsel, there is a caution and wariness in such a blended role. The appointment of amicus cannot have as its primary purpose as a substitute for traditional counsel. If an order mirrors traditional counsel, then the primary purpose of such an order must still be the assistance required by the court.

[92] I will repeat the statement of Justice Fish, for I believe it goes to the heart of this issue:

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

[93] This can be a difficult distinction to grasp in a theoretical vacuum. I will review how it relates to this case and also to the R. v. W. (P.J.) case and Justice Forestell's Imona-Russel case.

[94] It is accurate that I wanted Mr. Thomson and Ms. Oldham to mirror many of the features of traditional counsel. Only in an adversarial setting could I expect to test the highly conflictual evidence, which would allow me to tease out the material facts and credibility, so I would have clarity to connect the material facts to the best interest test for the children. I was satisfied by the end of the trial that the vigorous cross-examinations conducted have allowed me to make findings that are crucial to the evaluation of the best interest test.

[95] The Attorney General over-emphasizes the similarities of amicus with traditional counsel and under-emphasizes the material differences and the significant impact those differences had on this case.

[96] The inability to dismiss Mr. Thomson had a significant impact on the potential emotional volatility of the mother. Her dismissal of five counsel had created chaos in the history of this case. Once that right was taken away, this proceeding stabilized. She calmed down significantly.

[97] Further, removing from her control the ability to give instructions and directions had a material impact on the flow of the trial. Mr. Thomson, not the mother, would make the final decisions. From my observations during the trial, the mother and Mr. Thomson had a good working relationship and she was overall co-operative with him. The knowledge that she could not override him was a crucial factor in co-operating with him. Except on a few occasions, there was no tension between the mother and Mr. Thomson. The close co-operative relationship between the two allowed Mr. Thomson to fully utilize his cross-examination skills, which were required to properly test the father's evidence.

[98] These two distinctions from traditional counsel had a pivotal impact in focusing on the issues. Had Mr. Thomson been traditional counsel, this would not have happened. Keep in mind that she already dismissed him once. The distinct tools of amicus have made the difference between an out-of-control trial and one that was under control.

[99] There were two occasions when Mr. Thomson did not follow the so-called instructions of the mother. First, when I indicated I wanted a psychological assessment, the mother instructed Mr. Thomson to resist. The initiative for the assessment was coming from myself. As a result, because Mr. Thomson considered his overriding duty was to the court, he did not follow her directions to resist the assessment. Further, when I was considering an amicus curiae order for the father, the mother instructed Mr. Thomson to resist my initiative. He did not, because he thought this would be conflictual with the desire of the court.

[100] There must always be a nexus between the role of traditional counsel features and the ultimate purpose of assisting the court. The benefits to the mother of traditional counsel are incidental to the primary purpose of amicus, which is to assist the court. As the trial judge, I required the mother's position to be fully and effectively explained, including through cross-examination, so I might then make decisions in relation to the best interests of the children.

[101] In R. v. W. (P.J.), a similar result occurred. Mr. W.'s history of dismissing counsel came to an end when he could not dismiss the amicus counsel. When he submitted control to the amicus counsel, he co-operated completely. What ensued was a vigorously contested 18-day hearing. The accused unquestionably benefited considerably, but that only happened because of the tools provided to amicus. The accused benefited by the traditional counsel features, but the primary benefit was to the court -- the controlling mechanism of amicus, coupled with a traditional approach in an adversarial setting, allowed the court access to tested evidence, so an effective, just and fair decision could be made. This was a high-stakes case wherein the Crown was requesting life imprisonment.

[102] In Imona-Russel, a murder charge, Justice Forestell had to deal with a fluid and changing situation during the course of the trial. She had to make adjustments to the original amicus order, to provide amicus with more tools ultimately to assist her in the management of the trial. Although the accused appears to have benefited, the primary purpose behind changes in the amicus order were to assist the trial judge, by allowing the evidence to be more effectively tested. Amicus was the conduit through which the trial judge benefited.

7.2. Notice

[103] Notice was not provided to the Attorney General of my intention to appoint amicus counsel. The Attorney General submits it was deprived of its ability to make submissions on the boundaries of any amicus curiae order, to identify the individual who might become the amicus and to have some input as to the terms and conditions of the amicus structure. The Attorney General has a roster of counsel that is prepared to accept amicus appointments at the legal aid rate.

[104] I had to balance the impact of a delay of the proceeding against the value of what I might learn from the Attorney General. Providing notice and setting up a hearing would have caused disruption to an already fragile trial and cause a significant delay. The mother would have been content with a significant delay, because this is what she wanted all along. The time period pending a hearing on amicus could have impacted the mother's emotional volatility. She was already severely upset; I was not going to risk any further deterioration of her state of mind, pending a hearing to allow the Attorney General to give submissions.

[105] Prior to Criminal Lawyers, notice was particularly important because the compensation rate was vital to any such appointment. The Attorney General had to be involved on that issue. But since Criminal Lawyers, with trial courts no longer having the power to set compensation, there will be fact situations such as this, where input from the Attorney General will not have an impact on my decision either as to the identity of the amicus or the terms of an amicus structure.

[106] Mr. Thomson had already agreed to accept a legal aid rate, which I knew would not be objectionable to the Attorney General. It probably would have suggested I accept one of its roster lawyers, but I would have refused such suggestion. The appointment of Mr. Thomson would involve a smooth transition from the mother being unrepresented to being represented, because of his thorough knowledge of the file. There would have been no delay with the appointment of Mr. Thomson.

[107] As to the structure of any amicus appointment, my mind was already made up as to what I required. I was well-aware of the Criminal Lawyers case and was aware of the Attorney General's interpretation of the case, with which I disagreed. The Attorney General did not have a feel for this case and I knew they could not offer me sound submissions as to how I should have handled the problem with which I was faced.

[108] During argument, I asked Attorney General counsel what I should have done to manage these problems. Counsel was reluctant to respond, stating I was in a better position to understand what assistance I required. She did offer a tepid response that I could have considered amicus for the sole purpose of cross-examining the father. In my view, such an approach was simplistic given the multitude of factual and legal issues. Besides, that would not have kept the mother's emotional volatility under control.

[109] I also inquired of counsel what I should have done on R. v. W. (P.J.) and what the other two judges should have done in their cases. Again, counsel was most reluctant to respond, indicating that the judges had a better appreciation of what they required. She did suggest that I should have considered a limited role for amicus in cross-examining the Crown psychiatrist. Again, this would not have gone nearly far enough. In order to prepare for cross-examination of the Crown psychiatrist, any such counsel would have to retain his or her own psychiatrist and even a psychologist, which is what amicus counsel did in R. v. W. (P.J.). Further, a dangerous offender application is much different than a criminal charge. The evidence involved information over a period of 25 years. The response to that required several witnesses. Mr. W. could not have possibly navigated such a complex situation.

[110] If the three trial judges in Criminal Lawyers are being criticized for what they did, then the response from the Attorney General should be a meaningful and concrete alternative as to what should have transpired in those three trials. This was not forthcoming. There was criticism without offering solutions.

7.3. Encroachment on the Province's Role in the Administration of Justice

[111] Counsel submits there are cost consequences of amicus curiae orders, for which the government must pay. The executive has already established the funding of the administration of justice, including programs for the funding of defence counsel, such as legal aid, and other select circumstances wherein defence counsel are compensated. Judicial orders such as amicus curiae, cross the line between the judicial function and executive function, because the funding of those orders plays havoc with those programs, which do not take into account these extra cost consequences. It is the executive, not the judiciary, that has the responsibility for public accountability of general revenue. The judiciary is interfering with the executive function.

[112] This argument goes to the core of the Supreme Court decision in Criminal Lawyers. This is the reason why the majority took away the judicial role in setting compensation rates for amicus curiae counsel.

[113] However, the court recognized there will be valid circumstances in which amicus curiae orders must be made. The executive must pick up the cost consequences of those orders. In order to safeguard against judicial encroachment of the executive function, the Supreme Court has established a high threshold before amicus curiae orders can be validly made. The court wants to minimize the encroachment on the executive function.

[114] The court expressed concern that amicus curiae orders do not become a routine substitute for the masses of unrepresented litigants who otherwise would not qualify for legal aid or other government funding programs. However, the court does accept there will be limited encroachment of the judicial function on the executive function, if the high threshold for amicus orders is established. As I have already pointed out, for the reasons given, the high threshold has been met and this is a case of exceptional and unusual circumstances.

7.4. Concerns of the Supreme Court

[115] Amicus appointments that overlap with the traditional role of counsel are "fraught with complexity and bristle[s] with danger". There is a potential conflict of interest between the duty to the court and the relationship with the party, when the duty to the court is paramount. The bedrock principle of solicitor-client privilege is muddied. The accused has a constitutional right to defend himself or herself, and amicus appointments interfere with this.

[116] The Supreme Court did not say the existence of these concerns is a bar to appointing amicus curiae. The court wants to be clear to trial judges that there are red flags; we are to proceed with caution. Amicus is an uncomfortable and unnatural process. Trial judges are out of their element and comfort zone when they go down this road. But it does not mean that we do not use the amicus tool in order to enhance judicial effectiveness and fairness in trial situations, when the high threshold has been met.

[117] So, what is the tipping point? It would seem the more serious the consequences, the more likely the amicus curiae route will be utilized. In the three trial courts of Criminal Lawyers, life imprisonment was a realistic outcome. The three trial judges were not prepared to allow such a drastic result, without resorting to unnatural measures to enhance a fair and effective trial process.

[118] At stake here is trial judges' constitutional independence to ensure the fairness of the judicial process. There is a floor below which we will not go or the public confidence in trial judges will be compromised.

[119] A fair trial is not simply about what the accused wants. Fairness must also be measured from the perspective of the community. An accused does not have an absolute right to defend himself or herself on a self-represented basis.

[120] In R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, [2009] S.C.J. No. 38, the court stated:

While the accused must receive a fair trial, the trial must be fair from both the perspective of the accused and of society more broadly. In R. v. Harrer, [1995] 3 S.C.R. 562, McLachlin J. (as she then was) provided guidance on what is meant by trial fairness. She stated, at para. 45, that:

At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused's point of view: R. v. Lyons, [1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfied the public interest in getting at the truth, while preserving basic procedural fairness for the accused.

[121] When considering an amicus curiae appointment, a trial judge should conduct a risk-benefit assessment. You just do not ask what the concerns are, you ask what the benefits are. Does the benefit value have a greater value than the risk value? In weighing those values, at what point does your judicial independence become compromised, and you cannot ensure a fair trial process?

[122] The amicus curiae issue is more problematic in this era of unprecedented numbers of unrepresented litigants. The Supreme Court accepts there is going to be a diminishment of judicial effectiveness but what is the floor standard below which trial judges will not go?

[123] Again, viewing these concerns in a theoretical vacuum is not particularly helpful. We have to look at how they play out in a real trial situation.

[124] In this case, the mother could not dismiss Mr. Thomson. His duty to the court theoretically overrode her instructions to him in certain instances but was she harmed by the potential conflict and blurring of the roles? She was not. In my observation of her in this lengthy trial, and how it was conducted by Mr. Thomson, I am satisfied her case was put forward effectively. But let us not lose sight why this was being done -- I felt significantly benefited by Mr. Thomson's advocacy in terms of better appreciating issues impacting on the best interests of the children. Although Mr. Thomson did not follow her instruction to object to the assessment, overall and on balance, any blurring of the lines was minimal.

[125] In R. v. W. (P.J.), the accused had a lengthy criminal record and had horrendous socio-psychological and economic antecedents that rendered him damaged and vulnerable, as much as it rendered him as an offender. Do we allow this kind of person to run our trials, with the chaos that sometimes ensues? His deficits had an enormous impact on his appreciation of what was in his own best interest. How am I supposed to do my function fairly and effectively, if I do not understand his perspective?

[126] The potential conflict and blurred role of an amicus counsel, the inability to dismiss and the loss of the solicitor-client privilege was a small price to pay, compared to the enormous benefit I received from properly understanding his case. His amicus counsel had a much better appreciation as to what was in his best interest than he did. There will be times when we have to protect litigants from themselves for the sake of ensuring a fair trial process. If it was not for amicus counsel, the outcome for Mr. W. [the accused] would have been far worse.

[127] In LePage v. Ontario, the Court of Appeal was protecting Mr. LePage from himself. His long-time intransigence and muzzling of his lawyer was impacting the review board's ability to make effective and fair decisions. The Court of Appeal had enough and insisted that he have amicus counsel -- in order to enhance the effectiveness and fairness in hearings.

[128] In Imona-Russel, the trial judge had to deal with the behavioural and attitudinal changes of the accused and had to adjust amicus terms to meet the ultimate needs of the court. The aspects of the traditional defence counsel may have been compromised but it was done to ensure a fair trial process.

[129] These concerns cannot be the engine which drives the amicus appointment. The primary determinative factor is assistance to the court, and there will be times when these concerns will be subordinate.

8. The Role of the Attorney General

[130] The Supreme Court makes it clear the Attorney General has a duty to fix the recurring problems that existed in the three trial court cases.

[131] Not only has the Attorney General not repaired those problems, but it has exacerbated the problems, by the position that it took on this motion. If the Attorney General is correct and the amicus orders in Criminal Lawyers could not be made, then what should the trial judges have done? The Attorney General has shown no interest in answering that question. Criticism without a solution is unacceptable.

[132] The Supreme Court majority did not intend trial judges to be powerless, making it clear there should be a negotiation process as to amicus compensation. Trial judges have the power of persuasion and, if an agreement cannot be reached, they are empowered to issue a stay of proceedings and then they are to put on the record the reasons for the stay so the public will know where the responsibility lies for the situation.

[133] However, such an approach risks setting up fault lines between the judicial function and executive function and will undermine public confidence in the overall administration of justice. The public interest expects trials to be completed on their merits. Most unfortunately, the Attorney General is going in the wrong direction on this issue.

[134] The Supreme Court's strong direction to the Attorney General implies that it will conduct itself in good faith. Justice Fish dealt with this concern as follows:

. . . the reasoning of this court in another context is equally relevant here: the ability of the court to ensure a fair and orderly process should not be dependent upon a reliance on the continuous exemplary conduct of the Crown, something that is impossible to monitor or control.

[135] The conduct of the Attorney General in this motion is a matter of serious concern. At the conference on the motion, the issue arose as to appointing amicus for the purpose of the motion, who would submit on the correctness of the orders. The Attorney General agreed that there should be a buffer between the court and the Attorney General.

[136] It offered to make available and compensate another lawyer for such purpose. I rejected this suggestion because a stranger would not be able to offer meaningful submissions to me. Especially after several days of trial had elapsed. The logical choice was to have the current amici attend on the motion and be compensated, but the Attorney General refused to pay for them at the motion.

[137] Disturbed at the thought of a judge being alone in a courtroom with the Attorney General, and the optics of an unduly adversarial situation, both amicus counsel offered to appear on this motion on a pro bono basis, which they did. I attempted at the motion once again to obtain a commitment from the Attorney General to compensate them. They refused to make a commitment to pay amicus counsel for the motion. I requested amicus counsel to bill the Attorney General in any event. Eventually, the motion accounts were paid.

[138] The Attorney General should never have allowed this matter to get to this point. There is more involved here than just money. The Attorney General has a responsibility to enhance public confidence in the integrity of the administration of justice, which includes the effective functioning of the judiciary.

[139] What happened here was the opposite of what was contemplated by the Supreme Court, which expected a negotiation process on the issue of compensation. In attempting to negotiate the trial fees, there was no negotiation process. Both counsel attempted to negotiate a fee arrangement higher than legal aid. The Attorney General did not budge from its position and made it clear the legal aid rate was the only rate that it was prepared to pay. Counsel were not expecting their normal hourly rate or per diem rate for trial, and in fact, were prepared to take a substantial discount from what they would have billed on a private retainer client.

[140] Further, I was advised by counsel there were delays in having some of the amicus accounts paid. Counsel felt the Attorney General was frustrating them.

9. Criminal Law and Family Law

[141] In the conference on the motion, Attorney General counsel made it clear that it was unacceptable to the Attorney General to open up another category of amicus curiae appointments, which, prior to my orders, had not existed in trial courts in the field of family law. Criminal law was the only acceptable field of amicus appointments and, even at that, they ought to be substantially restricted.

[142] These statements demonstrate a naïvety of the importance of family law in an effective functioning society. Family law is involved in families, and in particular with children, much earlier than the criminal justice system. Through the child protection system and civil family system, family law courts are involved at the ground level and have an impact on the antecedents that cause crime.

[143] There is considerable overlap between child protection, civil family, youth criminal justice and adult criminal justice. In child protection and civil family, the courts are involved in families well before the age of criminal responsibility. This early intervention contributes to the stabilization of families, in particular, children. The earlier children and their families are stabilized, the greater the impact on the conditions that lead to crime.

[144] In a case such as this, the identification of pathology and issues with the parents and children allow the court to make recommendations and give directions to enhance healthy families and children.

[145] The Attorney General should not view family law in a hierarchical structure compared to criminal justice. The family law value and the criminal justice value are equally important and should be viewed on an integrated basis, each interwoven with the other.

[146] Unfortunately, this mindset by the Attorney General as to family law has been in existence for a long time. In 2006, I wrote a decision, wherein similar thinking by the Attorney General impacted on disclosure issues from the criminal justice system to the child protection system. See Children's Aid Society of Algoma v. P. (D.), [2006] O.J. No. 1878, 2006 ONCJ 170, affd by Justice Gladys I. Pardu, , [2007] O.J. No. 3601, 2007 CarswellOnt 5971 (S.C.J.).

[147] The issue was whether privacy interests would be protected in the disclosure of materials from the criminal justice system to the child protection system. At the time, the Attorney General was trumpeting privacy interests of the materials contained in the criminal justice system. The Attorney General lumped children's aid societies into the same pool as civil litigants. If this policy were upheld, the child protection system would have been deprived of material information that was required to effectively conduct child protection investigations.

[148] In that decision, I made the following comments:

How do we rank the child protection value? From the perspective of the Attorney General, although the value is important, it is not as important as the value of an effectively functioning criminal justice system. The criminal justice system is not subject to this value-weighing process, as envisaged in D.P. v. Wagg. The Attorney General sees the criminal justice system at the top of the ranking scale.

But why? Does the public interest in the criminal justice system have a higher value than the public interest in the child protection system?

The primary purpose of the criminal justice system is the protection of society. Of the various components of the system, police services are the first line of defence. They strive to ensure compliance with criminal and quasi criminal laws. Although part of police work is preventive, most police work is reactive, dealing with crime that has already been committed. Part of the protection of society is the protection of children. The police role in child protection is limited to crimes wherein children are the direct victims.

The concept of the protection of society encompasses more than a police investigative and prosecutorial function. The serious criminal, who has been charged and prosecuted, evolved into that state, usually over a period of many years. A 25-year-old hardened biker and gang criminal was once a five-year-old boy -- innocent, but very vulnerable. How did he get that way? There are those who say genetics are a factor, but there is a consensus among criminologists and others that a wide range of environmental influences shape the evolving criminal mind.

It is the child protection system that is primarily involved in that environment or milieu that spawns serious criminal behaviour. The root causes of serious crime in society are well known. There are common themes seen daily in pre-sentence reports (for teenagers and adults, in particular, as such) relate to serious crime and violent crime. These include low income and poverty, addictions, limited parenting skills, fractious and chaotic home environments, a parent or parents who have abandoned their children; multiple broken family relationships, often leading to attachment and bonding problems; crime in the family unit such as domestic violence between spouses or crime directly to children, such as sexual assault and physical assault.

It is well known that serious crime is often cyclical. How often do we see an adult, convicted of a sexual assault, was once a child victim of sexual assault? How often do we see an adult, convicted of physical assault, was once a child victim of physical assault? Spouse abusers were often exposed to domestic violence when they were children.

Children's aid societies are involved with future criminals well before the police are involved. The ability of the child protection system to protect children and to mitigate the factors that influence criminal behaviour is directly related to the protection of society -- which is exactly the same function of the criminal justice system.

The criminal justice system and the child protection system are approaching the same goal, but from different roads. Each road is as vital as the other for the overall protection of society. There is a tendency in thinking to segregate the criminal justice system from the child protection system. This is illogical. They are both absolutely necessary to achieving the ultimate goal of the protection of society. There is no basis for ranking the investigative-prosecutorial value ahead of the child protection value.

We have to get away from this compartmental thinking between the criminal justice system and the child protection system. Criminal justice does not have a paramount value in the protection of society. The child protection value is equal. Both must be functioning effectively in order to protect society.

[149] Hopefully, the time will come wherein the Attorney General will seriously examine its culture and its attitude toward family law.

10. Conclusion

[150] For all of the reasons stated above, the motion to set aside the amicus curiae orders is dismissed.

[151] I have much gratitude for Mr. Thomson and Ms. Oldham. They have been selfless. They have exemplified the ideals of the noble profession of law.

Motion dismissed.

End of Document