SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CR-14-040-0000

**DATE:**20151112

RE: R. v. Foster and Black

BEFORE: E.J. Koke

COUNSEL:
S. Scharger, Counsel, for the Crown

Michael Thurston, Amicus Curiae, counsel on behalf of the Superior Court of Justice

Ben Heath, counsel for the accused, Robin Black

Aarika Heath, counsel for the accused, Gary Foster

HEARD: November 9, 2015

ENDORSEMENT – REasons for appointment of Amicus Curiae

[1] One week before the scheduled date for the commencement of the trial in this matter circumstances arose which compelled me to appoint an amicus curiae. My reasons for appointing an amicus and the terms which governed his appointment are set out below.

Background

[2] Robin Black and her common-law husband Gary Foster are charged with the sexual assault.

[3] The Crown alleges that the assault occurred on the Canada Day long weekend in the summer of 2013. The complainant was 16 years old at the time.

[4] According to the Crown, the complainant’s family met work colleagues of her mother’s at a Crown land campsite that weekend and the assault occurred after the two accused invited her to spend the night with them in their camping trailer.

[5] The preliminary hearing took place over three days between September and December, 2013. Ms. Black and Mr. Foster retained and were represented by separate counsel at the hearing. On December 3, 2014 they were committed to trial in Parry Sound. They elected to be tried by a judge without a jury.

[6] A pre-trial was held with Wilcox J. on February 23, 2015. It was agreed at the pre-trial that the trial would require approximately 11 days.

[7] On March 23, 2015 the matter was spoken to at an assignment court hearing and the parties confirmed that they were available to start the trial at the commencement of the three week Superior Court sittings scheduled to begin in Parry Sound on November 9, 2015.

[8] A trial management conference was convened on August 17, 2015. At the conference the Crown and counsel for the parties again confirmed that they were prepared to commence the trial on November 9, 2015.

[9] A confirmation hearing was held on October 1, 2015. Counsel again confirmed their availability to commence the trial on November 9, 2015. Counsel were advised that it was unlikely that the court would grant a request for an adjournment after that date and that the defendants could expect that the trial would proceed on August 9, 2015, with or without counsel.

[10] On Friday, October 30, 2015 the trial co-ordinator’s office in Parry Sound was informed that there was an issue with respect to counsel for Ms. Black’s continued involvement in the trial. A teleconference with all counsel was immediately scheduled for 8:30 a.m. the following Monday, November 2, 2015.

[11] During the November 2, 2015 telephone conference counsel for Ms. Black advised that he had received a text message from his client effectively terminating his services. He could not confirm whether his former client was financially able to retain other counsel, whether she would be requesting an adjournment at the commencement of trial or whether she would be acting on her own behalf.

Reasons for Appointment of Amicus Curiae

[12] On November 2, 2015 a request for an adjournment had not been filed on behalf of Ms. Black and there was no indication that she had secured the services of another lawyer. The trial was scheduled to commence in 7 days. I was not hopeful that Ms. Black would be able to secure alternate counsel at such a late date and I was faced with the prospect that she would attend at the commencement of trial as an unrepresented litigant or intending to represent herself.

[13] After considering the matter I decided that the court required the assistance of an amicus if the proceeding was to be successfully and justly adjudicated.

[14] My decision to appoint amicus was primarily influenced by the fact that I was aware that the young complainant would be testifying. The Crown had filed an application for an order permitting the complainant to testify via closed circuit television, and an application that she be accompanied by a support person while she testified.

[15] The grounds in support of the Crown applications were stated as follows:

The Crown asks the court to take into account the complainant’s age. She was 16 when the alleged events occurred. She testified via CCTV at the preliminary hearing in September and November 2014. She is still relatively young at 18.

The Crown asks the court to take into account the nature of the offence. The allegation is sexual assault: This is a sensitive subject matter for most people to discuss in front of other people. The allegations in this particular case are arguable fairly heinous. The adult defendants are alleged to have sexually assaulted the 16 year old girl when she was relatively powerless due to incapacitation by alcohol and marijuana. Actual intercourse is alleged. The defendants were both engaged in sexual acts on the complainant at the same time. The complainant will understandably experience anxiety recounting these events. Her anxiety will be compounded if she has to see the defendants and be in the same courtroom as them.

[16] In my view, if this case was to be resolved fairly and justly it was necessary for the complainant to be cross-examined thoroughly and effectively, and that the examination be conducted with a degree of sensitivity given her young age and the circumstances of the alleged assault. I did not have the confidence that Ms. Black, as a lay person, had the necessary skills to conduct an effective cross-examination of the complainant. I was also concerned about the emotional impact on the complainant if she was cross examined by one of the alleged perpetrators of the assault. I was hopeful that if Ms. Black did choose to represent herself she would be satisfied with the cross-examination by the amicus and would not find it necessary to attempt her own cross examination.

[17] Having reached this conclusion I contacted Mr. Michael Thurston, a highly respected Parry Sound criminal defence counsel who has 38 years of experience before the Bar. After I explained the circumstances to him, he readily agreed to undertake the role of amicus on the following terms:

a)He was to familiarize himself with the brief prior to the commencement of the trial;

b) He would participate as amicus from the time the trial commenced until the completion of the examination and cross examination of the complainant;

c)As amicus, he was retained to assist the court. He was not to view himself as acting for or being in a solicitor-client relationship with Ms. Black;

d) He could cross-examine the complainant if he deemed it necessary and helpful for the just resolution of this case;

e)He was to advise the court and Ms. Black about points of law and legal issues, and to discuss legal issues with the Crown.

[18] It was agreed that the length and terms of his appointment would be reviewed after the complainant completed her testimony. He would continue his involvement as amicus thereafter if his continued involvement was deemed necessary by the court.

Termination of Appointment

[19] Ms. Black attended at the commencement of the trial on the morning of November 9, 2015. She was accompanied by counsel, who explained that he had been formally retained the previous Friday, November 6, 2015.

[20] In view of the fact that all parties before the court were now represented by trained and experienced counsel I no longer deemed it necessary to retain amicus to assist the court in this proceeding. Accordingly, Mr. Thurston was discharged from further responsibilities in this matter.

Concluding comments

[21] In Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43 the Supreme Court confirmed the inherent jurisdiction of the court to appoint amicus curiae in appropriate circumstances. Notwithstanding the fact that the court can exercise this right, I am of the view that as a general rule an attempt should be made to notify the Office of the Attorney General of an impending appointment and to give the Attorney General an opportunity to provide input into the appointment process. I am aware that the Attorney General has a panel of lawyers available to it who are prepared to act as amici.

[22] In the circumstances of this case, I deemed it necessary to appoint an amicus immediately, without involving the ministry. The trial was scheduled to commence one week from the time I became aware that Ms. Black was without counsel. The amicus required time to prepare for the trial and the appointment could not be delayed. Furthermore, I did not believe that an adjournment or stay of proceedings was desirable. The Crown and the co-accused were prepared to proceed, and an adjournment could have delayed the trial by as much as one year. An adjournment would also have resulted in a significant waste of court resources since there were no back-up cases which could be called for trial at such a late date. I therefore concluded that there was insufficient time to involve the Attorney General.

[23] In the Criminal Lawyers Case the majority at the Supreme Court also held that the courts do not have the ability to fix rates of compensation. It is for the Attorney General to fix the rates and to do so fairly. In my view, Mr. Thurston’s willingness to step forward to assist the court on such short notice is in keeping with highest traditions and best practices which govern the legal profession. I encourage the Attorney General to compensate Mr. Thurston fairly for his efforts.

E.J. Koke SCJ

Date: November 12, 2015