COURT FILE NO.: CR-17-4012
DATE: 20220124
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Patrick Warren
Defendant
Elizabeth Brown and Jonathan Lall, for the Crown
Dan Topp, for the Defendant
HEARD:
RULING APPOINTING AMICUS CURIAE
POMERANCE J.
[1] I have appointed a lawyer to serve as amicus curiae in a dangerous offender proceeding to assist the court on the law governing conditions of detention and the application of the Canadian Charter of Rights and Freedoms in that context.
[2] This ruling sets out the reasons for that appointment in this case.
[3] In summary:
a. Trial judges have an obligation to raise Charter issues that are apparent to the court, even when an accused person is represented by counsel (see R. v. Richards 2017 ONCA 424 at para. 113)
b. In this case, there is a potential for Mr. Warren’s Charter rights to be implicated should he be declared a dangerous offender and subject to an indeterminate penalty. This possibility is a function of various factors, including Mr. Warren’s highly specialized needs, his cognitive deficits, his vulnerability to attacks by other inmates, and the limited nature of programming and treatment available in the federal correctional system.
c. The constitutional issues in this case engage a specialized area of law relating to conditions of detention and imprisonment. This area of law tends to fall outside the scope of a traditional criminal law practice.
d. Counsel for Mr. Warren agrees that this is a specialized area of law. He advises that he is not familiar with “prison law” and/or the application of constitutional issues in that context. He welcomes the appointment of an amicus curiae.
e. The Crown opposes the appointment of amicus curiae, arguing that it is unnecessary and undesirable to bring in another counsel, and to prolong the hearing in this case.
f. The appointment of amicus curiae is the only means of ensuring that constitutional issues can be properly aired and determined in this case. Defence counsel will not be advancing submissions on the issues. It is not the Crown’s role to advance submissions about Mr. Warren’s Charter rights. It is neither appropriate nor desirable for the court to take on that role. The court must maintain impartiality and take care not to enter the litigation arena. It is the court’s role to identify issues of concern, but the litigation of those issues must be left to counsel. Where, as here, neither Crown nor defence counsel will be undertaking that role, the appointment of amicus is necessary to enable a fair and comprehensive hearing.
1. Context and Background
[4] The Crown is seeking to have Mr. Warren declared a dangerous offender and wishes the court to impose an indeterminate sentence. Mr. Warren is represented by experienced defence counsel. The hearing has continued over the course of several days.
[5] This is an unusual dangerous offender hearing.
[6] For one thing, these hearings are usually triggered by crimes of physical or sexual violence. Mr. Warren’s crime is that of arson. Arson is a crime of violence given the potential endangerment of life. It does not, however, involve a direct infliction of harm by the offender upon the victim. Mr. Warren tends to target buildings he believes to be unoccupied, and sometimes reports the fires he has set as a cry for help. The nature of the crime sets this case apart from the typical dangerous offender hearing.
[7] Secondly, Mr. Warren has extreme cognitive deficits and other specialized needs flowing from the terrible abuse that he experienced from the time that he was a very young child. He struggles with mental health issues. In the correctional setting, he is vulnerable to attack, and has been attacked by other inmates, such that he spends much of his time in custody separated from the general population.
[8] In accordance with the statutory scheme in the Criminal Code, I must determine at the end of the hearing whether Mr. Warren is properly designated a dangerous offender. I must determine the sentence to be imposed if he is designated a dangerous offender: whether it be a determinate or indeterminate term of incarceration. Those issues are governed by the Criminal Code provisions, as interpreted and applied in the case law. Mr. Warren’s counsel will make arguments to the court on those issues.
[9] There is, however, another important dimension to this case: an overlay of constitutional considerations relating to the anticipated conditions of Mr. Warren’s incarceration. For example, the evidence to date would indicate that, within the correctional system, there are few, if any, programs that would be tailored to address Mr. Warren’s cognitive limitations. Programming and counselling tend to take place in group settings, which is not a viable option for Mr. Warren. I am going to hear further evidence about the conditions under which Mr. Warren would serve an indeterminate term of imprisonment, were that to be the decision of the court. The question is whether those conditions would violate Mr. Warren’s rights under ss. 7, 12, or 15 of the Charter.
[10] Stated differently, I wish to understand the full range of options available to the court. The disposition imposed on Mr. Warren can only contemplate eventual release into the community if there is a reasonable prospect that, through treatment and other assistance, he can control his criminal impulses. If there is no prospect of safely releasing Mr. Warren into the community, he may face the imposition an indeterminate sentence. Were an indeterminate sentence be imposed, there might be real concern about whether Mr. Warren would be effectively “warehoused” for the rest of his life, with virtually no meaningful human contact, no treatment or programming, and seclusion from others for his own protection. The question is whether there is a third option, one that would allow the court to fashion an order under s. 24 (1) of the Charter that would protect the public while, at the same time, respecting Mr. Warren’s right to be treated with humanity, dignity, and equality.
[11] It is on that issue that I am appointing amicus curiae to assist the court.
2. The Appointment Neither Conflicts With, Nor Duplicates, The Role of Defence Counsel
[12] The application of the Charter to conditions of imprisonment is a specialized area of law that does not typically arise in criminal cases. Of course, judges routinely impose sentences of incarceration. However, these determinations set the duration of the penalty and not the conditions under which the penalty will be served. The case law generally provides that sentencing judges should not concern themselves with the conditions of custody, as that is a matter for correctional and parole officials. As a result, criminal lawyers, even experienced criminal lawyers, do not tend to have intimate knowledge of what is sometimes referred to as “prison law”. This tends to be a niche area of practice, reserved for those who have a grounding in the relevant statutory provisions, correctional practices, and the constitutional implications that arise in this context.
[13] In other words, my appointment of amicus should not be taken as an adverse comment on the competence of defence counsel. It is, rather, a recognition that the assistance required in this case goes beyond the ken of the traditional criminal law practice.
[14] This is not entirely unprecedented. For example, when a sentence has potential immigration consequences, defence lawyers will often retain the services of an immigration lawyer to outline the collateral consequences of the sentence to be imposed. In R v Pilarinos, 2001 BCSC 1332 an amicus was appointed to assist the court in deciding media applications, despite the presence of defence counsel. So too here, the court requires the assistance of a lawyer who has knowledge and experience in the area of prison law to understand whether, and to what extent, the anticipated conditions of imprisonment in the penitentiary system will or will not impact on Mr. Warren’s Charter rights.
[15] To this end, I have appointed Mr. Paul Champ – a well known constitutional expert with experience in prison law – to serve as amicus curiae in this case.
[16] To be clear, it is not the role of amicus to advocate on behalf of Mr. Warren or, for that matter, the Crown. Amicus will serve in a neutral capacity, offering submissions on the law whether or not it favours Mr. Warren’s position. The appointment of amicus is not intended to create or amplify an adversarial contest. Amicus is to serve as a genuine friend of the court to assist in the just disposition of a difficult and challenging criminal matter, with potentially dramatic implications for Mr. Warren’s liberty.
[17] I am empowering amicus to adduce evidence should it be thought that additional evidence is necessary to understand and address the issues. Were such evidence heard, both Crown and defence will have full rights of cross-examination, just as they will have full rights of response to any written and oral legal submissions advanced by amicus.
[18] I am well aware of the admonition of the Supreme Court of Canada that amicus is not to take on the role of defence counsel when an accused is unrepresented: see Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at paras. 49 and 56 (“CLA”). It inexorably follows that the same principle applies when the accused is represented by counsel. In this case, there is a clear demarcation between the role of amicus and the role of defence counsel. For one thing, as noted above, amicus will not have an allegiance to a party before the court. Beyond that, amicus will not intervene on issues that are within the clear purview of defence counsel. It will be for Mr. Warren’s lawyer to argue whether he should or should not be declared a dangerous offender. It will be for Mr. Warren’s lawyer to argue whether the sentence should be determinate or indeterminate. The amicus will not weigh in on the application of the statutory criteria. Amicus will, instead, assist the court in understanding the potential constitutional issues that may arise if the court were to make certain findings under the Criminal Code regime. Of course, defence counsel and Crown counsel will also have full opportunity to speak to those issues.
[19] Courts have recognized that, while there are clear limits on what an amicus can do, the role is situation dependent and can be quite flexible in its reach. In R. v. Walker, 2019 ONCA 765, Fairburn J.A. explained, at para. 65:
The roles played by amici are many. As noted by Durno J., although the term amicus curiae means a “friend of the court”, the requirements placed upon amici exist on a broad spectrum and are adaptable to the specific requirements of each case: R. v. Cairenius (2008), 2008 ONSC 28219, 232 C.C.C. (3d) 13, at paras. 42-44, 59, 62. As Rosenberg J.A. put it in R. v. Samra (1998), 1998 ONCA 7174, 41 O.R. (3d) 434 (C.A.), at p. 444, leave to appeal refused, [1998] S.C.C.A. No. 558, 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”: see also CLA, at. para. 117, per Fish J. (dissenting, but not on this point).
[20] This is an unusual amicus appointment, but I find that it is readily situated along the permissible spectrum.
3. Crown Objections
[21] Crown counsel has resisted the appointment of amicus on various grounds, primarily arguing that it is not necessary to bring someone else into the case. Crown counsel takes issue with the suggestion that prison law is a specialized area of practice, and argues that, if there are Charter issues, counsel for Mr. Warren can raise them. The difficulty with this argument is that Mr. Warren’s counsel has advised that he is not familiar with this area of the law; nor is he in a position to raise or litigate constitutional issues attaching to Mr. Warren’s conditions of imprisonment. Even if the Crown’s argument had some traction in the abstract, it loses grip when situated in the practical realities of this case.
[22] The Crown further argues that the amicus will, in effect, be taking on the role of defence counsel for Mr. Warren. I disagree, for reasons already expressed. It may be that the submissions of amicus support Mr. Warren, or it may be that they support the position of the Crown. If they happen to support Mr. Warren, it does not necessarily follow that amicus is assuming the role of defence counsel. He is not taking instructions from Mr. Warren, and he does not owe a duty of loyalty to Mr. Warren. His role is very different than that of Mr. Warren’s lawyer.
[23] As held by Fish J. in CLA, at paras. 118-19 (dissenting, but not on this point):
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.
While the amicus may, in some circumstances, be called upon to “act” for an accused by the 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. [Citations omitted, underline added, italics in original].
[24] Crown counsel suggested that there could be difficulties if amicus identified potential Charter issues that Mr. Warren did not wish to have raised. I see this as a highly speculative and unlikely event. If the Crown is successful, Mr. Warren will face the most draconian deprivation of liberty known to our law. His lawyer will be arguing against a disposition of indeterminate detention. It is difficult to imagine Mr. Warren would instruct his lawyer that he is interested in statutory defences, but object to any form of constitutional relief that might be available. Were such an unexpected event to occur, it could be addressed at that time.
[25] The Crown also argued that the introduction of amicus will prolong the proceedings, and that Mr. Warren has been waiting long enough for this matter to be determined. The Crown implied that it is contrary to Mr. Warren’s interests to potentially prolong the hearing into his status. This submission might have merit in the context of criminal trials, or more traditional sentencing hearings. However, where the Crown is seeking an indeterminate period of incarceration, the speed of the hearing will not be the offender’s greatest concern, particularly when there are additional matters to be explored. I am not suggesting that timing is unimportant or that the hearing should languish. The point is that, in this case, any resulting delay is a tolerable cost of ensuring that all relevant considerations are placed before the court.
4. Conclusion
[26] For the reasons set out above, I have determined that it is in the interests of justice that amicus be appointed to assist the court in this case. This is an unusual order, but it is made in what I see to be an unusual and exceptional case. The appointment of amicus in this case is not intended to mark some unattainable, imaginary, or gratuitous standard of fairness. I see it as necessary to ensure that, in the final analysis, the most basic standard of fairness is met, by ensuring that the court can consider the full impact of any order made on Mr. Warren’s constitutional rights. As it was put by Fairburn J.A. in Walker, at para. 125, “[t]he fairness of our justice system is most on display when the vulnerable are caught in its grip.”
[27] Therefore, I issue the following order:
Paul Champ, Barrister and Solicitor, is appointed amicus curiae (“amicus”) to offer assistance to the court in the matter of the Crown application to have Patrick Warren declared a dangerous offender;
Amicus is appointed to offer the following assistance:
a. To offer expert advice and assistance to the court on the law governing conditions of detention in the federal correctional system, and the application of the Charter of Rights and Freedoms in that context;
b. To identify and introduce any additional evidence that should be heard on the issues identified in a., above; and
c. To file facta and make oral submissions regarding the issues and/or evidence identified in a. and b., above.
Amicus will negotiate terms of remuneration with respondent. Should mutually agreeable terms not be reached, the Court will be advised.
Should the Court choose to expand the role of amicus the terms of expansion will be part of a further order.
Original Signed by “Justice R.M. Pomerance”
Renee M. Pomerance
Justice
Released: January 24, 2022
COURT FILE NO.: CR-17-4012
DATE: 20220124
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Patrick Warren
RULING APPOINTING AMICUS CURIAE
Pomerance J.
Released: January 24, 2022