Court File and Parties

COURT FILE NO.: 16-598

DATE: 2019/09/18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Keith Gerard Vincent

BEFORE: Justice I.F. Leach

COUNSEL: Elizabeth Wilson, for the Crown Keith Vincent, self-representing

HEARD: September 17-18, 2019

ENDORSEMENT

[1] The accused in this matter, Keith Gerard Vincent, is charged with one count of criminal fraud, contrary to s.380(1) of the Criminal Code of Canada, (“the Code”).

[2] This endorsement deals with an application made by the Crown for an order appointing counsel to act as amicus curiae in this criminal proceeding.

Background

[3] By way of further background:

a. This matter has an extended history, dating back to the accused being arrested, in relation to the relevant charge, on December 16, 2015.

b. Throughout 2016 and well into 2017, Mr Vincent was represented by his first lawyer, (Ms Brennan), and the matter progressed in a somewhat normal fashion through the stages of a preliminary inquiry, (held in late August of 2016), the filing of an indictment in this court, (in early September of 2016), and a judicial pretrial in this court, (in late November of 2016), following which there apparently were meaningful discussions regarding possible resolution.

c. To facilitate the prospects of resolution, there were a number of successive adjournments, (e.g., in December of 2017, March of 2017, and May of 2017), to allow for contemplated resolution of a related civil matter and interim restitution.

d. By September of 2017, however, the matter had not resolved, and progress of the matter was disrupted by Ms Brennan bringing a successful application to be removed as Mr Vincent’s counsel of record. Mr Vincent responded by supplying the court with correspondence confirming that he was in the process of retaining a second lawyer, (Mr Afolabi), who would be retained, if at all, by mid-October of 2017. In the result, the matter was adjourned to early December of 2017, with leave being granted to have the matter brought back before the court in the meantime, for the purpose of securing a further judicial pretrial once Mr Vincent’s new counsel had been retained and been given an opportunity to review the matter.

e. When the matter was back before the court in December of 2018, the court was advised that Mr Vincent had retained new counsel, (Mr Ellis, who had an agent speak to the matter), and a further judicial pretrial was scheduled for January of 2018.

f. The further judicial pretrial was held in January of 2018, following which the matter also was spoken to in the next assignment court for Stratford, (in early March of 2018), and adjourned to the Stratford trial sitting in September of 2018, for trial by jury, on a priority basis, if Mr Vincent made no re-election to be tried by judge alone.

g. Between March and September of 2018, there nevertheless was a breakdown in the solicitor-client relationship between Mr Vincent and his new counsel, leading to Mr Ellis bringing a successful application, in June of 2018, to be removed as Mr Vincent’s counsel of record. At the time, the presiding judge advised Mr Vincent of the need to be ready for trial of the matter in September of 2018, with or without counsel. The Crown prepared accordingly, issuing appropriate subpoenas to its contemplated witnesses.

h. By September of 2018, Mr Vincent had not been successful in retaining further counsel, but there were other complications. In particular, Mr Vincent advised the court that he was experiencing serious health issues, related to ongoing urological problems necessitating surgical intervention. In the circumstances, he requested, and was granted, an adjournment of the matter to the November-December 2018 trial sittings in Stratford, in order to address those concerns and continue his efforts to retain new counsel.

i. When the matter was back before the court in December of 2018, Mr Vincent was still self-representing, and the Crown indicated its desire to proceed with a pretrial voluntariness application in relation to statements provided by Mr Vincent. (Although previous counsel retained by Mr Vincent had indicated an intention to concede voluntariness, Crown counsel thought it prudent to obtain formal confirmation from the court in that regard, once defence counsel had ceased to represent Mr Vincent and he remained self-representing.) Mr Vincent also had signalled his intention to make a re-election, (with the consent of Crown counsel), to trial by judge alone. However, Mr Vincent’s health situation had deteriorated again, preventing his personal attendance in court. In that regard, the court was supplied with physician correspondence, confirming that Mr Vincent was experiencing crippling post-surgical pain, for reasons still being explored by specialists, and that Mr Vincent would need to remain under the active care of numerous physicians for several more months. In the circumstances, the matter was adjourned, at Mr Vincent’s request, to the start of the February 2019 trial sittings, with Mr Vincent being directed to provide further physician correspondence, if and as necessary, outlining more specific appointment and progress expectation information.

j. In the run up to the February 2019 trial sittings, it seemed clear that health issues once again would prevent Mr Vincent from attending personally at court. In advance of his scheduled court appearance, he supplied Crown counsel and the court with additional correspondence from treating physicians, confirming that he was suffering from ongoing debilitating health issues. In particular:

i. Mr Vincent’s family physician, Dr Joanna Starczewski, confirmed that Mr Vincent was currently suffering from suspected Prostatis, resulting in severe pelvic, anal and penile pain, necessitating narcotic medication, anti-inflammatories and antibiotics, as well as consultations with specialists in Urology and Internal Medicine who did not expect Mr Vincent’s pain to resolve for another six months. Dr Starczewski also made reference to Mr Vincent experiencing severe depression, compounded by pain, necessitating the involvement of counsellors and a psychiatrist. In the opinion of Dr Starczewski and Dr Sorensen, (Mr Vincent’s urologist), Mr Vincent would not be fit for trial until July 1, 2019, at the earliest.

ii. Dr Ronald Sorensen provided his own separate handwritten and typed correspondence, confirming that Mr Vincent was suffering from Chronic Prostatis, and opining that, because of his current medication and the nature of associated medications, Mr Vincent would be unfit to attend court until July 1, 2019, at which time he would be reassessed.

k. In a court hearing on February 11, 2019, in which the still self-representing Mr Vincent participated by telephone, the matter was adjourned to be spoken to on July 3, 2019; a date when I was scheduled to be back in Stratford, while covering the eastern rota circuit for the Southwest Region.

l. In advance of the hearing scheduled for July 3, 2019, Mr Vincent supplied Crown counsel and the court with further physician correspondence, confirming his ongoing debilitating health issues. In particular:

i. Dr Starczewski confirmed that Mr Vincent continued to suffer from ongoing severe pain associated with prostratis and urethral stricture, along with blood in his urine, all of which was still being treated by Dr Sorensen. Moreover, Mr Vincent was noted to have ongoing issues with mental health, including ongoing low mood and thoughts of suicide, in respect of which he continued to see Dr Starczewski, as well as a psychiatrist. In the circumstances, it was Dr Starczewski’s recommendation that Mr Vincent not attend court, especially given the likely detrimental impact on his mental health.

ii. Dr Rizwan Rafiq, (Mr Vincent’s psychiatrist), submitted a separate letter to my attention, confirming that he had been treating Mr Vincent since February of 2019, and that Mr Vincent had been formally diagnosed as suffering from recurrent Post Traumatic Stress Disorder and Major Depressive Disorder, along with his prostate-related surgery complications. Having regard to Mr Vincent’s history, and a noted increase in Mr Vincent’s emotional struggles and PTSD symptomology with the approaching date for Mr Vincent’s return to court, Dr Rafiq felt it would be detrimental to Mr Vincent’s mental health if he went through the court proceedings in his current state. In the circumstances, Dr Rafiq asked that the court proceedings be adjourned for a further six months.

m. When the matter was back before the court on July 3, 2019, Mr Vincent once again was unable to attend in person. He instead once again participated by telephone. At the hearing, Crown counsel expressed understandable frustration with the delayed progress of the criminal proceeding against Mr Vincent. For his part, Mr Vincent was apologetic, expressed frustration with his condition, and emphasized that his health issues, pain and corresponding limitations were very real and debilitating. He also expressed frustration with his ongoing ability to retain counsel, although he intended to continue his efforts in that regard. In the result:

i. I suggested that, in addition to such efforts, consideration be given to an application, by the Crown if necessary, for the appointment of counsel to provide assistance and ensure that Mr Vincent received a fair trial. In that regard, I had significant concern about my ability to ensure a fair trial if the self-representing Mr Vincent continued to experience physical and mental challenges that would compound the usual challenges of self-representation by lay persons in criminal proceedings.

ii. I indicated that Mr Vincent’s physicians should be advised of the possibility of their being asked to provide the court with further information about Mr Vincent’s condition directly, by telephone, if that condition remained unchanged by the time of the September 2019 hearing.

iii. I adjourned the matter to the September 2019 trial sitting in Stratford, to be spoken to again.

n. When the matter came back before the court again during this trial sitting, Mr Vincent once again was unable to attend in person, and once again participated by telephone, indicating that his health issues continued, and that he was still pursuing efforts to obtain Legal Aid that would enable him to retain counsel. Crown counsel, after further consideration and inquiries, had decided that a Rowbotham application was destined to failure, and instead brought the current application for the Court’s appointment of amicus curiae to assist in moving this matter forward.

General principles

[4] General principles relating to the appointment of amici curiae, (i.e., “friends of the court”), a term frequently shortened informally in practice to the singular amicus, have been clarified by a number of relatively recent decisions of the Supreme Court of Canada and our Court of Appeal; e.g., in Ontario v. Criminal Lawyers Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R.. 3, and R. v. Imona-Russel (2019), 2019 ONCA 252, 145 O.R. (3d) 197 (C.A.). Such principles include the following:

a. Courts of inherent jurisdiction, (such as the Superior Court of Justice for Ontario), have the power to appoint amici curiae to ensure the orderly conduct of proceedings and the availability of relevant submissions.

b. The power is exercised, on an exceptional basis, where such an appointment is necessary to permit a particular proceeding to be successfully and justly adjudicated. Courts should not be required to decide contested, uncertain, complex and important points of law or of fact without the benefit of thorough submissions.

c. The jurisdiction may be invoked in an apparently inexhaustible variety of circumstances, and may be exercised in different ways, with an amicus curiae being called upon to play a wide variety or spectrum of possible roles, depending on the exigencies of a particular case. For example, in criminal proceedings, an amicus curiae may be involved in a manner that is relatively detached from an accused, or the role may be expanded to ensure trial fairness, including a role involving much more direct engagement with the accused – such as advising the accused about points of law and legal issues, discussing legal issues with the Crown on behalf of the accused, speaking to the court on behalf of the accused in relation to legal issues, and cross-examination of Crown witnesses. There is simply 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 a friend of the court, and not acting for the parties.

d. However, the discretion to appoint an amicus curiae is not unrestricted. In that regard:

i. The power should be exercised sparingly, with caution, in response to specific and exceptional circumstances. In particular:

1. Routine appointment of amici curiae with an expanded role because a defendant is without a lawyer would risk crossing the line between meeting a judge’s need for assistance and the province’s role in the administration of justice. In that regard, appointment of an amicus should not permit an accused to circumvent the established procedure for obtaining government-funded counsel. Doing so would risk undermining the provincial Legal Aid scheme.

2. Similarly, an amicus should not be appointed to impose counsel on an unwilling accused, who has the right to self-representation.

ii. The assistance of amici curiae must be essential to the judge discharging his or her functions in the case at hand.

iii. In relation to matters involving an unrepresented accused, courts must remember that they have an independent duty to ensure a fair trial for an unrepresented accused, and that duty must not be externalized, and that responsibility effectively shifted, by having amici curiae assume a role nearly identical to that of defence counsel in all but name. In the vast majority of cases, as long as a trial judge provides guidance to an unrepresented accused, (in accordance with the obligations of a trial judge in that regard), a fair and orderly trial can be ensured without the assistance of an amicus curiae. That 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.

iv. Where an amicus curiae is appointed, it must be remembered that there are important characteristics and limitations associated with the role. In that regard:

1. Regardless of what specific responsibilities the amicus is given, his or her defining characteristic remains his or her duty to the court, and to ensuring the proper administration of justice. The sole “client” of an amicus is the court, and the purpose of the amicus 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.

2. Where an amicus is appointed in a criminal proceeding, it is vital to remember that the amicus is not counsel for the accused, and that the role of amicus is fundamentally distinct and different from that of a defence counsel who represents an accused. In such situations, there is no solicitor-client relationship between an amicus and the accused, and the amicus does not take instructions from the accused. The general role of the amicus is to assist the court. Acting in that role, as a friend of the court, the amicus has an obligation to bring facts or points of law to the attention of the court which may incidentally further the interests of the accused, but that is not the purpose of an amicus appointment. The amicus also has a duty to bring facts or points of law to the court’s attention that might be contrary to the interests of the accused – which obviously is contrary to the traditional role of defence counsel. For similar reasons, an amicus appointed to assist the court in a criminal proceeding involving an unrepresented accused is not permitted or obliged to give the accused strategic advice or control the litigation strategy; something the court, (for whom the amicus truly acts), is not permitted to do directly. An amicus who takes on all such duties and responsibilities of defence counsel is no longer a friend of the court.

3. It should also be remembered and emphasized that, as an amicus is appointed by the court and acts for the court, an accused has no right to terminate the further involvement of the amicus.

4. Similarly, as the court is the true client of an amicus, communications between the amicus and an accused person are not protected by solicitor-client privilege per se. However, a similar protection, allowing for candid communications between an amicus and the accused, may be achieved by the Crown undertaking, (e.g., in consenting to the appointment of an amicus), to treat communications between the amicus and the accused as privileged.

5. Where the court appoints an amicus curiae, these distinctions between an amicus curiae and court-appointed defence counsel must be made clear, both to the amicus and to the accused.

v. While courts have jurisdiction to set terms to give effect to their authority to appoint amicus curiae, the jurisdiction to appoint an amicus does not necessarily imply or require the authority to set a specific rate of compensation. Courts have no jurisdiction to set such rates of compensation, or to order provinces to pay. In the exceptional cases where the court must have help to do justice and appoints an amicus curiae, the person appointed and the province’s Attorney General should meet to set rates and modes of payment. The judge may be consulted, but should not make orders regarding payment that the Attorney General would have no choice but to obey. If the assistance of an amicus is truly essential and the matter cannot amicably be resolved between the amicus and the Attorney General, the judge’s only recourse may be to exercise his or her jurisdiction to impose a stay until an amicus can be found and funded.

Application – Need for Amicus Curiae in this case

[5] In the present case, it is Crown counsel who has brought the application, (which Mr Vincent does not oppose), for appointment of an amicus curiae.

[6] In that regard, Crown counsel emphasizes, and I independently agree, that the situation presently before the court would not satisfy the prerequisites for a Rowbotham order. The three requirements for such an order, established by appellate authority and recently reiterated in R. v. Imona-Russel, 2019 ONCA 252, at paragraph 38, are as follows:

i. the accused must have been refused Legal Aid;

ii. the accused must lack the means to employ counsel; and

iii. representation for the accused must be “essential to a fair trial”.

[7] In the present case, Mr Vincent has not met with a final refusal in his ongoing efforts to secure Legal Aid, and there is no evidence before me to support Mr Vincent’s unsworn assurances that he lacks the means to employ counsel.

[8] The court nevertheless is faced with a situation involving what I regard as genuine concerns regarding trial fairness.

[9] This criminal proceeding centres on allegations of criminal fraud, which in my experience tend to be inherently more complex, and involve more nuanced issues of fact and law, (particularly in relation to the intent required for commission of the offence), than many other criminal offences routinely dealt with in this court.

[10] The criminal proceeding against Mr Vincent is approaching its fourth anniversary, and obviously cannot be postponed indefinitely. In that regard, the Crown understandably emphasizes that there is a complainant who seeks justice.

[11] However, Mr Vincent, who is presumed to be innocent, is clearly frustrated as well. While his trial is delayed because of his debilitating condition, his opportunity to present a defence, achieve a desired vindication and hopefully put this matter behind him is postponed – while his physicians emphasize the toll the criminal proceeding is having on his mental health.

[12] Moreover, from both perspectives, justice delayed is frequently justice denied, for reasons that include frailties inherent in testimony dependent on memories that inevitably fade over time.

[13] At the same time, however, the court continues to be presented with compelling indications, from Mr Vincent’s attending physicians, that he suffers from very real, ongoing and debilitating physical and mental health issues, while he continues to receive treatment that includes ongoing narcotic medication. To date, there are no indications that such concerns are expected to resolve completely by the start of 2020. There are only indications that Mr Vincent’s challenges are expected to continue, and entirely prevent his participation at trial, until at least January of 2020.

[14] Although one can certainly hope for improvement in Mr Vincent’s condition, (e.g., so as to permit his physical attendance at court in the new year), the reports received to date do not suggest conditions that will come to an abrupt and complete end with the dawn of a new calendar year. To the contrary, it seems entirely possible if not likely that Mr Vincent, despite gradual improvement, thereafter may have lingering challenges and distractions stemming from his various physical and mental issues.

[15] Having regard to such realities, in my view there are very real concerns about the court’s ability to ensure a fair and orderly trial in the present circumstances, in the reasonably near future, even if the trial judge extends, to Mr Vincent, the assistance the court normally extends to a self-representing accused.

[16] In particular, I think there is a very real possibility if not probability that a self-representing Mr Vincent, experiencing chronic and severe pain, suffering from professionally diagnosed mental health issues, and taking strong narcotic medication inducing drowsiness and lack of concentration, would lack the ability of most lay persons to comprehend, remember and act in accordance with such intermittent guidance from the court.

[17] I am not confident, in particular, that a self-representing Mr Vincent would be sufficient, on its own, even with assistance from the trial judge, to ensure that the trial would proceed in an orderly way. Certainly, if Mr Vincent is unable to comprehend, remember and consistently follow court direction and guidance in that regard, have meaningful discussions with Crown counsel about incidental steps in the proceeding, and/or shoulder all burdens in that regard without requiring breaks or other trial interruptions, there is a serious risk of the trial proceeding in a disjointed and disorganized way, to the detriment of this matter and other matters likely to be scheduled for the same trial sitting.

[18] For similar reasons, I think there is very good reason to doubt that someone in Mr Vincent’s condition, even with the usual court guidance and instruction extended to a self-representing accused, would have the ability to carry out meaningful cross-examination, and/or address the court meaningfully, (although not perhaps with the skill of trained legal counsel), so as to elicit and/or highlight relevant and important points of fact and/or law.

[19] In my view, appointment of an amicus curiae, to ensure the court receives assistance in keeping progress of the trial on the rails, and that the court receives a proper perspective in relation to facts and issues which Mr Vincent alone may not be able to present, is required to safeguard trial fairness in the special circumstances of this case.

[20] In particular, the Crown having undertaken to treat communications between the amicus and the accused as confidential, I find that an amicus curiae should be appointed to assist this court in the following ways:

a. to advise the accused about procedural and legal issues;

b. to discuss procedural and legal issues with the Crown on behalf of the accused;

c. to speak to the court on behalf of the accused on procedural and legal issues; and

d. to cross-examine the Crown’s witnesses, without any limitation on Mr Vincent’s ability to ask any further questions in relation to each such witness, to the extent Mr Vincent feels able to do so.

[21] In that regard, I am guided, in particular, by the similar court-ordered arrangements, followed at first instance, that met with subsequent approval of our Court of Appeal in R. v. Imona-Russel, supra.

Implementation

[22] Having decided that appointment of an amicus curiae with the above role is required, in the exceptional circumstances of this particular case, concerns remain in relation to the manner in which that arrangement should be put in place.

FUNDING ARRANGEMENTS

[23] In that regard, Crown counsel provided me with a copy of a draft order, incorporating the terms of a template in that regard apparently maintained online for use by Crown Attorneys across the province.

[24] However, as I indicated to Crown counsel, the draft order raised concerns, in my view, insofar as it contained numerous provisions whereby the court would purport to make binding decisions as to the manner and rate of compensation to be received by the appointed amicus curiae. For example, provisions of the draft order included terms indicating:

a. that Her Majesty in Right of Ontario would be obliged to provide funding for the amicus curiae appointed by the court, in accordance with other terms of the order;

b. that the amicus counsel was to be paid at the Legal Aid rate;

c. that the amicus counsel was to abide by the policies and procedures of Legal Aid Ontario in relation to such matters as disbursement authorization, budget setting, account monitoring and review, billing practices and payment rules;

d. that Legal Aid Ontario was to manage funding of amicus counsel in accordance with its policies and procedures in relation to such matters as disbursement authorization, budget setting, account monitoring, billing practices and payment rules; and

e. that the Crown in Right of Ontario and Legal Aid Ontario were required to return promptly to court in the event of, inter alia, any non-compliance with such provisions of the Court’s order.

[25] It seemed to me that the proposed order, including such terms, contemplated the court’s purported exercise of a jurisdiction which does not exist, according to the Supreme Court of Canada’s decision in Ontario v. Criminal Lawyers Association of Ontario, supra.

[26] Without limiting the generality of the foregoing, it seems to me that, speaking for the majority, Justice Karakatsanis was quite clear that courts “do not have the power to determine what a reasonable fee is or to order the government to pay it”, and that such orders “cross an impermissible line”.[^1] She also made it clear that “the spectre” of courts “fixing and managing the fees of amici imperils the integrity of the judicial process”.[^2]

[27] As noted above, matters concerning payment obligation are instead to be addressed and hopefully resolved by collateral discussion and agreement between the person appointed as amicus and the province’s Attorney General, with the court resorting to imposition of a stay of the proceeding if such an agreement proves impossible.

[28] As I indicated to Crown counsel, I also was loathe to make an order without providing an opportunity to The Ministry of the Attorney General and Legal Aid Ontario to make submissions, having regard to the provisions of a “Protocol for Management of Court-Ordered Publicly-Funded Counsel” apparently reached between the Ministry and Legal Aid Ontario in or around March of 2019, when a copy of the Protocol was provided to judges of this court.

[29] In particular, provisions of that Protocol, (copies of which were provided to Crown counsel and Mr Vincent, and marked as an exhibit for identification), include indications:

a. that the Crown prosecution service should focus on its role as prosecutor and not be involved with issues related to the payment of accounts of publicly-funded counsel by the Ministry;

b. that the Ministry and Legal Aid Ontario may jointly appear before the court on public funding applications – while recognizing that there may be some situations where they may agree that such a joint appearance is unnecessary; and

c. that the Ministry and Legal Aid Ontario, wherever possible, will present a joint draft order addressing such matters as the Ministry’s commitment to provide funding, management of billing and payment by Legal Aid Ontario in accordance with its rules and processes, making payment of funding contingent on Legal Aid Ontario’s assessment of an account according to its rules, and the availability of a review process if the account rendered by counsel is not paid in full.

[30] In the circumstances, I indicated to Crown counsel that I contemplated a further adjournment of the matter to the December 2019 trial sitting here in Stratford, (commencing on December 2, 2019), in order to provide representatives of the Ministry and Legal Aid Ontario with an opportunity to be heard in relation to such matters. Such an adjournment for that purpose seemed necessary in any event, having regard to the limited hearing time remaining in the current trial sitting here in Stratford, and the apparent inability of the trial in this matter to proceed before January of 2020 given Mr Vincent’s current physical and mental limitations.

[31] In the interim, Crown counsel should take the steps necessary to bring the existence of my decision, and this endorsement, to the attention of the Ministry and Legal Aid Ontario.

SELECTION OF COUNSEL TO BE APPOINTED AS AMICUS CURIAE

[32] In the meantime, (i.e., prior to this matter being spoken to again at the Stratford trial sittings in December of 2019), it was my hope that progress also could be made in terms of an appointed amicus curiae familiarizing himself or herself with this matter and contemplated role in the proceedings, while interacting as necessary with the Ministry and Legal Aid Ontario to address and hopefully resolve ancillary funding issues.

[33] As for identification of appropriate counsel to be appointed as amicus curiae in this matter, I drew the attention of Crown counsel to the substance of a further message circulated to judges of this court in March of 2019, noting that potential appointees for the role of amicus could be arranged through Legal Aid Ontario or the Criminal Lawyers Association (“CLA”), and indicating that the latter organization had adopted a new protocol in that regard.

[34] In particular, the protocol adopted by the CLA included:

a. the creation and maintenance of an “Amicus Roster” of lawyers meeting indicated eligibility criteria for application to be placed on the Roster, and receiving Committee approval to be placed on the Roster; and

b. an indication that, upon request, the office of the CLA will provide a list of three members from the Roster to the court, with the list of names being provided “on a rotating basis with consideration given to the geographical location of the member and the court location”.

[35] In addition to ongoing inquiries being made of Legal Aid Ontario, Crown counsel undertook to contact the office of the CLA with such a request on the court’s behalf.

[36] To facilitate such inquiries, and possible selection and appointment of an appropriate amicus prior to the matter being adjourned to be spoken to again at the December 2019 trial sittings, I indicated my attention to adjourn the matter again, in the first instance, to another brief hearing tomorrow, starting at 3:30pm.

ENDORSEMENT

[37] Although Crown counsel submitted that orally delivered reasons for my decision to appoint amicus curiae in this case and notation of that decision on the indictment would be sufficient, I thought it advisable, for a number of reasons, to prepare this more extended typed endorsement. In particular:

a. Given the extraordinary nature of such an appointment, and the sparing manner in which the court’s jurisdiction in that regard is to be exercised, I felt the situation warranted an extended confirmation of my regard to the governing principles and considerations set forth above, and why I have decided that appointment of an amicus is required in the unusual circumstances of this particular case.

b. I thought it appropriate to provide the amicus, and other interested entities such as the Ministry and Legal Aid Ontario, with a readily accessible indication of the circumstances underlying the appointment, and the contemplated role of the amicus in this proceeding.

c. Having regard to the importance of all concerned not blurring the fundamental and important distinctions between the role of a lawyer appointed as amicus curiae and a lawyer retained or appointed to act as defence counsel, I considered it advisable to create and provide a lasting written indication and reminder of those distinctions to the parties, and to Mr Vincent in particular. During the course of today’s hearing, I emphasized such distinctions to Mr Vincent in an interactive way, and he repeatedly confirmed his understanding in that regard. He nevertheless also now will have a copy of this endorsement to review, if and as necessary, as the matter proceeds.

INITIAL ADJOURNMENT

[38] As noted above, the matter then was initially adjourned to a further hearing tomorrow, at 3:30pm.

[39] Again, the primary purpose of that initial adjournment and continued hearing will be to explore whether or not an appropriate lawyer can be identified and appointed as amicus curiae prior to the matter being adjourned to a further “speak to” hearing during the December 2019 trial sitting.

“Justice I.F. Leach”

Justice I.F. Leach

Date: September 18, 2019

[^1]: See, for example, Ontario v. Criminal Lawyers Association, supra, at paragraph 82. [^2]: Ibid., at paragraph 64.