ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-0122-AP
DATE: 2013-04-12
B E T W E E N:
Her Majesty The Queen,
Mr. V. Brewer, for the Crown
Appellant
- and -
Pasquale Stilla,
The Respondent representing himself
Respondent
Neil McCartney
Amicus Curiae
HEARD: March 25,2013,
at Thunder Bay, Ontario
Regional Senior Justice H.M. Pierce
Reasons On Appeal
Introduction
[1] The Public Prosecution Service of Canada (“the appellant”) appeals a decision of Mr. Justice F. Valente, made on his own motion, appointing amicus curiae for the respondent in a prosecution under s. 238(1) of the Income Tax Act. The summary conviction charges relate to failure to comply with notices served upon the respondent. These notices required Mr. Stilla to file T2 returns for four different numbered companies for which he was an officer or director in specified years; Mr. Stilla was also charged personally for failure to file his personal tax return for 2007.
[2] These charges relate to failure to file income information, rather than tax evasion. The procedure at trial requires the prosecution to prove that letters were sent to the taxpayer to file a specified document within a certain time frame and the taxpayer failed to respond. Prosecution evidence is often offered by affidavit. If required, the prosecution must also prove identity.
[3] The taxpayer may defend by challenging service of the notice to file or mounting a due diligence defence explaining efforts to comply within the time frame. There will be no issues of search, arrest, confession, confidential informants, surveillance, wiretaps, expert evidence or other complex procedures at trial.
[4] “Failure to file” offences are strict liability offences that attract a maximum fine of $1,000 per count or six months in jail upon conviction. The appellant submits that a fine is routinely imposed for a first offender; accordingly, it submits there is no risk of substantial jail time if Mr. Stilla or his corporations are convicted.
[5] There is no issue that Justice Valente, a judge of the Ontario Court of Justice, had jurisdiction to make an order appointing amicus curiae. Nor is there any issue about this court`s jurisdiction to hear an appeal from his order: R. v. Kimmie (2006) 2006 SKCA 87, 212 C.C.C. 127 (Sask. C.A.).
The Standard of Review
[6] The standard of review used by the appellate court identifies the bench mark used when reviewing the decision of the court below. The reviewing court must first decide: is deference required or can it be dispensed with?
[7] The appellant submits that the standard of review on this appeal is correctness, because what is in question is an error of law. Courts must be correct in determining questions of law. The appellant argues that no deference to the impugned order is required of this court.
[8] Amicus curiae disagrees, arguing that this is not purely an question of law, but rather a question of mixed fact and law. He points to the appellant`s criticism that there is an absence of factual underpinning for the impugned order. Mr. McCartney submits that if the court accepts that a factual underpinning is required for the making of an amicus order, then deference is required when reviewing the judge’s fact-finding and his application of the law to the facts.
[9] In this case, the judge determined the facts and applied the law to the facts, as reflected in Judge Valente`s reasons set out in the transcripts, filed. I agree that this is a case of mixed fact and law, such that deference to the decision-maker is required.
The Proceedings
[10] The prosecution began with nine informations alleging offences; the first appearance was in October, 2010. In April, 2011, a trial date was set for September, 2011 for four hours. The respondent then appeared without counsel and requested an adjournment of the trial so that he could bring an application. A new trial date was fixed for March 2, 2012. In the meantime, the respondent launched a constitutional challenge to the Income Tax Act that he had prepared personally, served and filed. His filings included a factum.
[11] The respondent failed to appear on March 2, 2012 and his application was dismissed for want of prosecution. The prosecution withdrew some informations against some corporations that were inactive and a warrant was issued for the respondent’s arrest. The respondent attended court on March 9, 2012, advising that he had mistaken the date for trial. He was released after a bail hearing. A new trial date was set later in March for August 22, 2012 for half a day. No new application was brought to revive the dismissed application.
[12] On August 22, 2012, the respondent appeared at trial, and advised the court that he was not prepared to proceed with his trial. He stated that he was in receipt of the prosecution’s disclosure but did not understand it. He also indicated that he did not “understand any of the legal proceedings that go along with the trial.”
[13] The respondent had been refused legal aid and stated that he was not aware of his right to appeal that decision. He also indicated that he was not aware of other applications available to him with respect to retaining counsel.
[14] Justice Valente granted the respondent’s request for adjournment and advised that he was considering appointment of amicus curiae on his own motion. The case was adjourned to September 5, 2012 at which time Justice Valente heard further submissions on the issue. The appellant objected to an amicus appointment, arguing that it was not an appropriate case for such an order.
[15] Despite the prosecutor’s objections, Justice Valente determined an order would issue for the appointment of amicus curiae. He found that the respondent was having difficulty understanding the disclosure and representing himself as well as understanding the court process. He expressed concern that the trial fairness might be compromised without such an appointment.
[16] The case was adjourned to September 28, 2012 to identify counsel who might serve as amicus, set out the terms of reference and the rate of compensation. On October 25, 2012, the court appointed Mr. McCartney as amicus curiae. The order was cast in broad terms: in addition to providing for payment of Mr. McCartney at a rate of $131 per hour, amicus was permitted ten hours to explain the charges, the disclosure, and constitutional issues to the respondent and a further ten hours for explanation of the trial process and issues arising therefrom. The order also provided that communications between amicus and the respondent would be treated as though solicitor-client privilege applied. Justice Valente also made provision for variation of the order.
[17] Since this appeal has been launched, the trial proceedings in the Ontario Court of Justice have been adjourned from time to time, pending the outcome of this appeal.
The Law
[18] When should amicus curiae be appointed? In R. v. Imona-Russel (2011), 2011 ONCA 303, 104 O.R. (3d) 721, para. 46, the Ontario Court of Appeal held that an appointment could issue when necessary to avoid an injustice. As a corollary to the goal of trial fairness, the Court of Appeal also approved of an amicus appointment to improve trial efficiency in a complex and lengthy trial (para. 72).
[19] The court considered the factors for an amicus appointment in R. v. Clarke, 2009 CarswellOnt 6341 (S.C.J.), para.23. These include the complexity of the case, the seriousness of the penalty faced by the accused, personal factors related to the accused such as age, ability to understand the proceedings and to express himself, and his familiarity with the trial process. However, these factors are not exhaustive.
[20] As the case law shows, the role of amicus curiae is quite varied, depending on the circumstances dictated by the court. It may range from acting for an absent party to adopting a role similar to defence counsel. Some examples are set out below.
[21] The Court of Appeal considered funding arrangements for amicus appointments in R. v. Imona Russel (2011), 2011 ONCA 303, 104 O.R. (3d) 721. However, the court also described a range of roles for amicus counsel, noting that these roles fall on a continuum. One end of the spectrum requires counsel to basically act as defence counsel for accused who refuse to participate, or refuse to participate and disrupt the proceedings to the extent that they are removed from the courtroom: R. v. Atherley, (2001) 1998 6939 (NWT SC), O.J. No 4363 (QL), 125 C.C.C. (3d) 363 (S.C.).
[22] In the Atherley role, the Court of Appeal described amicus as cross-examining and making submissions on behalf of the accused, consulting with him to determine areas of cross-examination, if the accused accepted consultation.
[23] In Khadr v. Canada (Attorney General) (2008), 2008 FC 46, 54 C.R. (6th) 76 (F.C.), amicus had no solicitor-client relationship with Mr. Khadr, for whom extradition was sought. The court required that amicus have access to unredacted disclosure to be used at the hearing, make submissions on the facts and the law, and make submissions advancing the case of the person seeking disclosure during ex parte hearings. Amicus was ordered to keep documents confidential pending further order of the court. His primary role was to assist the court in arriving at a just determination of the issues.
[24] In R. v. Brown, (1999) O.J. No. 4866 (QL), the role of amicus was more limited. Amicus did not cross-examine witnesses, did not give legal advice to the accused, did not receive confidential information from the accused, and functioned only on the basis of exchanges with opposing counsel and evidence adduced at trial.
The Arguments
[25] The appellant submits that the trial judge did not apply the test for appointment of amicus: is such an appointment necessary to prevent a failure of justice? Instead, it submits, the trial judge made the appointment, which is tantamount to appointing defence counsel, “out of an abundance of caution,” which is not the proper test. Instead, the appellant argues that the Clarke factors should have been applied.
[26] In particular, counsel for the appellant argues that the trial judge made six errors:
he failed to consider the possible penalty available if Mr. Still is convicted;
he failed to consider the accused’s personal circumstances such as disability, lack of education, mental disorder, or bona fides;
he considered the accused’s Charter challenge to the Income Tax Act, which had been dismissed for want of prosecution;
he failed to consider whether there were other factors affecting trial fairness, such as obstructionist conduct or the hiring and firing of trial counsel;
he took into account the possibility of an appeal;
he failed to consider other options such as inquiring into the accused’s financial circumstances, exploring an appeal of the Legal Aid decision or inviting a Rowbotham application.
[27] The appellant also submits that in making an amicus appointment, the court must use restraint in ordering the expenditure of public funds.
[28] Mr. McCartney, as amicus curiae, submits that the appellant has incorrectly characterized the issue when it refers to amicus curiae as defence counsel, as the role of amicus is to assist the court, not to represent the accused. Mr. McCartney submits that it is the court that appoints amicus and it is the court that can discharge him, not the accused. Appointment may be made to assist the court when a party refuses to participate, is patently ineffective in his or her representation, or is obstreperous. The court sets the terms of reference for amicus, whose role on the continuum of service varies from providing services that are akin to defence counsel to making submissions in order to counteract an adversarial vacuum.
[29] Citing the decision of the Court of Appeal in R. v. Imona-Russel, paras 1-3, 37-43, 56, and 75, Mr. McCartney highlights the difference between the roles of defence counsel and amicus as follows: amicus may inform and advice the accused but need not take steps contrary to the accused’s advice if his advice is rejected by the accused; amicus may, in his role, advance positions with which the accused strongly disagrees; participate in the trial when the accused refuses to do so, including over the objection of the accused; and amicus cannot be discharged by the accused. The Court of Appeal distinguished the role of defence counsel from amicus curiae in this way, “One acts for the accused. The other assists the court to properly administer justice.”
[30] In his submissions, Mr. Stilla stated that he did not have the government`s resources and did not know how to call a witness.
[31] I note that no court has appointed Mr. McCartney as amicus curiae to appear at this appeal. Mr. McCartney has not requested such an appointment. Nevertheless, in the best traditions of the bar, he filed a factum in response to the appellant’s and made submissions on the appeal, which were helpful to the court. This is a classic instance of filling a vacuum in the adversarial system, so that the court may reflect on fully developed legal argument. I appoint Mr. McCartney as amicus curiae for this appeal.
[32] When asked, counsel for the appellant stated that if the order of Justice Valente appointing amicus curiae is quashed, he would not object to an order for the payment of Mr. McCartney`s fees as amicus on the appeal, on the scale previously ordered by Justice Valente, as agreed by counsel.
[33] It is not seemly for the court to descend into the arena of bargaining over fees. I am of the view that, regardless of the outcome of this appeal, Mr. McCartney should have his fees for preparation for this appeal, including reviewing the appellant`s materials and case law, drafting a factum, appearing at the appeal, and reviewing and explaining these reasons to Mr. Stilla. The fees shall be on the scale ordered by Mr. Justice Valente on October 25, 2012. An order shall issue accordingly. In the event that counsel disagree on the quantum of fees, I may be spoken to.
Discussion
[34] Each citizen has a right to represent him or herself in Canadian courts. Many do, now in unprecedented numbers. As a consequence, the courts are flooded with unrepresented litigants, advancing or defending claims. Most have no knowledge of the law or of legal procedure. This phenomenon creates huge headaches for trial judges who are expected to deal with parties in an even-handed way, assisting unrepresented persons with their cases, patiently explaining issues of substantive law as well as legal procedure, but remaining aloof from the fray in order to render neutral adjudication of disputes.
[35] In R. v. Lee (1998) 1998 6939 (NWT SC), 125 C.C.C. (3d) 363 (N.W.T. S.C.), Mr. Justice Vertes described the tension between the conflicting roles of a trial judge in the case of an unrepresented person as follows:
…If an accused is unrepresented then there is a general obligation on the trial judge to assist the accused in the conduct of his defence. That obligation becomes very difficult to fulfill where … there is no jury and the trial judge must be the impartial arbiter who makes the final decision as to guilt or innocence.
[36] A candid trial judge will say that presiding over litigants who have no legal training is an exhausting process, one that is not conducive to the advancement of the law or an efficient trial process. No doubt this was on Justice Valentes mind when he pondered issues of trial fairness in Mr. Stillas case. Justice Valente was also concerned about wasting the court`s resources. Two trial dates had already gone by without the trial proceeding.
[37] I agree that, in his analysis of the problem, the trial judge did not reference the potential range of penalties upon conviction and the lack of complexity of the trial, set for half a day. He did, however, consider, to some degree, Mr. Stilla’s personal characteristics, finding Mr. Stilla to be well-spoken and seemingly intelligent. No doubt Mr. Stilla’s constitutional challenge to the Income Tax Act influenced his assessment of Mr. Stilla’s forensic abilities.
[38] Justice Valente adverted to the differences between the role of defence counsel and the more circumscribed role of amicus curiae. This is evident in the terms of reference ordered for amicus and his encouragement to Mr. Stilla to retain his own counsel. He also referenced the court’s need for restraint in the expenditure of public funds. However, there was no direct inquiry into Mr. Stilla’s finances. It is not known, for example, what Mr. Stilla’s income and assets are, or whether he might be able to afford unbundled legal services. Rather, Justice Valente accepted at face value that retaining counsel was beyond Mr. Stilla’s means.
[39] Justice Valente concluded that trial fairness could be jeopardized if Mr. Stilla were required to represent himself at trial; however he expressed scepticism about Mr. Stilla’s position that he could not understand the disclosure and he did not understand the trial process. In fact, Mr. Stilla confirmed that the charges were for non-compliance.
[40] Noting that Mr. Stilla appeared twice to set trial dates without raising his inability to proceed with the trial, the trial judge described the reasons Mr. Stilla gave as “quite thin, to be charitable.” In my view, appointing amicus “out of an abundance of caution” does not meet the test of an appointment that is necessary in order to avoid an injustice and promote trial fairness.
[41] Instead, the efficiency of the court’s process weighed heavily in Justice Valente’s consideration. In particular, he cited the risk of further delay of the trial and the breach of Mr. Stilla’s constitutional right to be tried within a reasonable period of time; the inconvenience to counsel and witnesses of further adjournments; the waste of court time by these adjournments; and the risk of delay if the case were appealed. With the exception of the possibility of appeal, the concerns expressed are related to trial efficiency. They are valid concerns.
[42] The Court of Appeal in Imona-Russel approved of amicus appointments to improve trial efficiency. Generally such appointments are made in complex and lengthy trials, in order to avoid a mistrial or adjournment if counsel is dismissed at the last moment or in the midst of trial or when an accused behaves in an obstructionist manner. These factors do not apply in this case. The trial of Mr. Stilla is not expected to occupy a lot of the court’s time and resources.
[43] The trial judge did not refer to other means of improving trial efficiency, such as ordering a peremptory trial or seeking assistance for Mr. Stilla from duty counsel. The prosecution has a duty to assist an unrepresented accused which may extend to explaining disclosure in some instances. Finally, the trial judge has a duty to assist the unrepresented person by guiding them through the trial process.
[44] In an ideal court room, there would be no unrepresented persons. Nevertheless, this is a simple case both factually and procedurally. The fact that the respondent has previously brought a constitutional challenge to the Income Tax Act demonstrates that he is capable of mastering trial process with some assistance that the court is able to provide. There are none of the hallmarks of risk to trial fairness that justify appointment of amicus curiae in this case.
[45] The appeal is allowed. The order of Mr. Justice Valente for appointment of amicus curiae is quashed.
Regional Senior Justice H.M. Pierce
Released: April 12, 2013
COURT FILE NO.: CR-12-0122-AP
DATE: 2013-04-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Appellant
- and –
Pasquale Stilla,
Respondent
- and –
Neil McCartney,
Amicus curiae
REASONS ON APPEAL
Pierce R.S.J.
Released: April 12, 2013
/mls