COURT FILE NO.: CR-21-058 DATE: 2024 05 10
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HIS MAJESTY THE KING Jason Miller and Jayme Lesperance, for the Crown
– and – MATTHEW MCQUARRIE Matthew McQuarrie, self-represented Anthony Bryant, proposed amicus
HEARD: April 5, 12 and 19, 2024
RULING ON APPLICATION TO APPOINT AMICUS CURIAE AND COUNSEL PURSUANT TO S. 486.3 OF THE CRIMINAL CODE
CHOZIK J.
[1] Matthew McQuarrie is charged with first degree murder in relation to the death of Emerson Sprung contrary to s. 235(1) of the Criminal Code, R.S.C., 1985, c. C-46. He has elected to be tried by a judge and a jury. His trial is scheduled to commence on June 3, 2024, before me. This date was set after the first trial that was to commence on January 9, 2023 before Sproat J. was adjourned in December 2022 when a last-minute third-party suspect application was brought by the defence.
[2] On April 3, 2024, on the record in court Mr. McQuarrie discharged his lawyer, Anthony Bryant. He maintains that he intends to represent himself at this trial. I am advised that this is the third time Mr. McQuarrie has fired his lawyer.
[3] The Crown applied to this court for an order appointing amicus curiae and counsel under s. 486.3 of the Criminal Code to cross-examine the deceased’s mother and father.
[4] On April 5 and 12, 2024 I heard submissions respecting the appointment of amicus. On April 18, 2024, in chambers I made an order appointing Mr. Bryant as amicus. On April 19, 2024, I advised counsel and Mr. McQuarrie that I would amend the order to make it retroactive to April 12, 2024 and add a term that all communications between amicus and Mr. McQuarrie would remain confidential. I also heard submissions that day about the appointment of s.486.3 counsel and advised that I would grant that order. Both orders issued on April 22, 2024.
[5] On April 19, 2024 I indicated that written Reasons for the appointments would follow. These are those Reasons.
Positions:
[6] On this application, it was not seriously disputed that amicus should be appointed. Mr. McQuarrie was not opposed to the appointment of amicus. I explained to him in broad strokes the role of amicus on two occasions and I provided him with the two cases relied on by the Crown in support of the application: R v. Kahsai, 2023 SCC 20 and R v. P.D.C., 2021 ONCA 134.
[7] The central questions were whether Mr. Bryant should be named as amicus, and what role or functions amicus was to perform at trial. In respect of s. 486.3 counsel, the question was whether the scope of the appointment could expand beyond the two witnesses named by the Crown.
[8] Mr. Bryant was prepared to accept an amicus appointment if one was made. He represented Mr. McQuarrie for an extended period, conducted the pre-trial motions and was prepared to conduct the first trial. He is therefore very familiar with the case. He is an experienced and respected member of the Bar.
[9] The Crown objected to Mr. Bryant’s appointment as amicus. The Crown argued that in this case amicus with expanded adversarial mandate is required, and that Mr. Bryant, as the accused’s former defence counsel, is precluded from carrying out that mandate. The Crown argued that an expanded adversarial mandate as amicus will likely put Mr. Bryant in a conflict considering his ongoing obligations to his former client because a lawyer may not take positions that are contrary to the interests of a former client.
[10] At the same time, the Crown was unable to put forward anyone who would be prepared to accept the appointment. Whoever accepts the appointment needs to be ready to conduct what promises to be a very challenging trial in Owen Sound for three months of the summer and be ready to start in less than two months.
[11] The trial was scheduled for six weeks when Mr. McQuarrie was represented by counsel. This time estimate was based on concessions counsel was prepared to make. Now that Mr. McQuarrie is self-represented, the trial can reasonably be expected to take much longer. As of April 19, 2024, twelve weeks of court time were set aside for this trial, commencing June 3, 2024.
[12] Mr. McQuarrie asked the court to appoint a lawyer of his choice to be his “co-counsel” to assist him with the presentation of his case. He did not oppose the appointment of s. 486.3 counsel to cross-examine the deceased’s mother and father but took the view that their evidence need not be called. He candidly admitted that he needs help in representing himself.
[13] Mr. McQuarrie was initially adamant that he did not want Mr. Bryant to be appointed as amicus. When it was explained to him that the appointment of amicus other than Mr. Bryant would likely result in an adjournment of his trial, he said that he would be prepared to work with Mr. Bryant. Mr. McQuarrie did not want an adjournment of this trial. He has been in custody on these charges for four years, since his arrest on May 2, 2020. He said that he is ready for the trial. He was concerned that his s. 11(b) rights under the Canadian Charter of Rights and Freedoms are not being respected.
The Issues:
[14] There were four issues on this application:
(i) Should amicus be appointed? (ii) What terms or scope are appropriate for amicus to perform? (iii) Is former defence counsel precluded from being appointed as amicus? (iv) Should the s. 486.3 order appointing counsel to cross-examine certain witnesses be expanded to other witnesses?
Issue One: Should Amicus Be Appointed?
[15] In my view, amicus must be appointed in this case. Given the nature of the charges and complexity of the trial, as well as other factors, I concluded that amicus is essential to protect the court process, ensure that the trial is fair and appears to be fair.
[16] A Superior Court judge can appoint amicus when the judge believes that doing so is required for the just adjudication of a case: Kahsai, at para. 36.
[17] The charge Mr. McQuarrie faces is the most serious one in the Criminal Code and carries a mandatory sentence of life imprisonment. The case is complex. The Crown is calling four expert witnesses to give opinion evidence in the areas of DNA, forensic pathology, digital forensic analysis, tire impressions and tool mark analysis. Further, the Crown has advised that it intends to lead substantial forensic evidence from trained police officers about the collection of evidence. In total, the Crown contemplates the calling of nearly 70 witnesses.
[18] Mr. McQuarrie is not a sophisticated litigant. There is no reason to believe that he has any knowledge in these key areas or of the rules of evidence. There is no reason to believe that he has any knowledge of court procedures or the law that applies in his case. In addition, he is in custody. His ability to prepare for trial, research and learn law and procedures is significantly limited. While he has access to a computer to review the disclosure, any additional opportunities to prepare a defence (such as interviewing or preparing witnesses, conducting legal or other research, obtaining, or preparing exhibits, etc.) are limited.
[19] Most significantly, Mr. McQuarrie is exceptional as an accused person in terms of his inability to control his behaviour. While not unique, he appears to lack significantly in basic internal controls despite his best efforts. The evidence put forward by the Crown on this application, as well as my own observations of him on two occasions, confirm that Mr. McQuarrie is not capable of abiding by basic court decorum for very long despite his stated intention to do so. He is, unfortunately, very reactive, loses his temper easily and becomes disruptive. Frequent breaks are required to give him an opportunity to calm down.
[20] I agree with the Crown’s submission that if left to his own devices, Mr. McQuarrie will attempt to elicit irrelevant and inadmissible evidence, which I will then have to direct the jury to ignore. He will likely be left with no viable defence and no one making any argument that advances his interest. He is also likely to be extremely disruptive to the conduct of the trial, which will require frequent breaks or his removal from the courtroom to the CCTV room from which he can observe the proceedings. He will likely have significant challenges conducting examinations and cross-examinations of witnesses.
[21] In this case, amicus is needed to protect the court process, contribute to the fairness of the trial, and to maintain the appearance of fairness. Indeed, the appointment of amicus is vital to prevent a miscarriage of justice.
Issue Two: What Should the Terms of the Appointment Be?
[22] In my view, the suitability of former defence counsel to take on an appointment as amicus turns on the terms of the appointment. The defining feature of amicus is that they owe their duty of loyalty exclusively to the court, regardless of the circumstances or the specific terms of their appointment. While the purpose of the amicus appointment must be to assist the court, it may have the incidental effect of advancing the interests of the accused: Kahsai, at para. 37. The role is highly adaptable and can encompass a broad spectrum of functions. The precise role will depend on the needs identified by the trial judge: Kahsai, at para. 38.
[23] The proper scope of the roles for amicus is limited by necessary constraints inherent in the nature of the role: Kahsai, at para. 49. Amicus can never discharge functions that would violate their duty of loyalty to the court and amicus must not undermine the impartiality of the court by giving strategic litigation advice to an accused: Kahsai, at paras. 40-42, 49. The right of the accused to control his own defence also restricts the adversarial functions that amicus can assume: Kahsai, at para. 45. Amicus must not make submissions or seek to elicit evidence that would contradict any defences or theories raised by the accused: Kahsai, at para. 45. Despite these limits, there is a wide range of adversarial functions that amicus can legitimately assume: Kahsai, at paras. 39.
[24] Some of the adversarial functions amicus can assume were described in Kahsai, at para. 62, as follows:
Amicus can legitimately assume a wide range of adversarial functions throughout the proceedings, within the scope of the limits identified above. For example, I accept the submission of the intervener the Criminal Lawyers’ Association that amicus can help the accused by explaining the strategic choices available to them, along with the potential implications of those decisions (see I.F., at p. 2). And there is no theoretical barrier to prevent amicus from testing the strength of the Crown’s case through cross-examination, submissions or closing argument (see Mastronardi; Borutski; C.M.L.; Walker). As noted above, amicus may present an alternative theory or defence arising on the evidence to counter the position of the Crown, provided it does not conflict with any asserted theory or defence of the accused. Other adversarial functions may also be available.
[25] Once appointed as amicus, a lawyer cannot and does not form a solicitor-client relationship with the accused. An amicus does not take instructions from the accused and cannot be dismissed by the accused. While amicus can advocate in ways that advance the interests of the defence, amicus does not represent the accused. The mandate of amicus is to act as a lawyer of the court and for the court: Kahsai, at paras. 41-42.
[26] The accused has a constitutional right to represent himself and conduct his own defence. This right includes control over key litigation decisions, including whether to proceed with representation, what mode of trial to elect, whether to plead guilty or not guilty, whether to lead any defence, whether to testify and which witnesses to call. Empowering the accused with control over key strategic decisions advances trial fairness by ensuring he may bring forward the defences he sees fit: Kahsai, para. 42.
[27] However, this does not mean the accused’s right to control his defence is absolute. It is subject to the rules of law. For example, an accused can only advance defences available at law and elicit evidence that complies with the rules of evidence. The defence is subject to the direction of the court, the accused is not permitted to call an endless stream of witnesses or to subject witnesses to interminable examination on irrelevant matters: Kahsai, at para. 44.
[28] The court also has an obligation to ensure a fair trial and that no self-represented person suffers a perceived or actual miscarriage of justice: Kahsai, at paras. 53-54, 57-59; R. v. J.D., 2022 SCC 15, at para. 34. To this end, the appointment of amicus strikes some balance between an accused and the Crown, ensure that any relevant defences and issues are brought to light without breaching the limitations on its role. Amicus, together with the unique roles the trial judge and the Crown must play to ensure a fair trial for an unrepresented accused, helps to protect the integrity of the adversarial system.
[29] In its draft order, the Crown sought terms that would include amicus doing the following:
a. Cross-examine witnesses on material and relevant matters on the accused’s behalf that do not conflict with the strategic choices of the accused; b. Conduct the direct examination of witnesses on material and relevant matters on the accused’s behalf that do not conflict with the key strategic choices of the accused; c. Make legal arguments that are not inconsistent with binding legal authority on the Court on the accused's behalf that do not conflict with the key strategic choices of the accused; d. Advise the court on applicable law and legal principles as requested by the Court irrespective of [or] regardless of any conflict with the key strategic choices of the accused.
[emphasis added]
[30] While I agree that amicus should be permitted to cross-examine or examine witnesses, I am of the view that this should only be done in this case if Mr. McQuarrie requests it. Mr. McQuarrie had the benefit of being represented by experienced counsel but chose to discharge him to represent himself. It would not be fair to force upon him someone else to conduct the cross-examinations or to prohibit him from cross-examining witnesses if he wants to. Similarly, amicus could assist him with opening and closing statements to the jury, should Mr. McQuarrie desire it.
[31] I am of the view that it could violate amicus’ fundamental role and obligations to make arguments that conflict with the strategic choices of the accused. The right of the accused to control his own defence restricts the adversarial functions that amicus can assume. Allowing amicus to take positions, make arguments or elicit evidence that undermine the accused is fundamentally inconsistent with the role of amicus and could result in a miscarriage of justice: Kahsai, at para. 45. It would be profoundly unfair for a court to appoint a lawyer to take positions that contradict or undermine the decisions made by a self-represented accused or the defence advanced by him. When necessary, amicus could advise the court that they are unable to make submissions on a particular point because it would undermine the position taken by the accused.
[32] There is no need to impose a term that a lawyer, an officer of the court, not make submissions that are inconsistent with binding legal authorities. This is an expectation of every lawyer in every case as an officer of the court, and to require it of amicus is redundant.
[33] Balancing the court’s need for amicus in this case and Mr. McQuarrie’s right to represent himself, I am of the view that the following functions to be performed by amicus are appropriate:
(a) to attend all appearances in Court after today, whether virtual or in-person, in respect of all pre-trials, case conferences, pre-trial motions and applications, jury selection and the trial or as otherwise directed by the Court; (b) to obtain from the Crown and review copies of all materials relied upon by the Crown in respect of this matter; (c) to obtain from the accused and review any materials the accused wants to serve on the Crown or file as part of the court record or otherwise intends to introduce or rely on in respect of any pre-trial motions and the trial; (d) to retain or obtain and review the Crown brief disclosure, regardless of whether the Crown is relying upon it; (e) to assist the Court by participating at case management attendances, pre-trial discussions, pre-trial and mid-trial motions and applications, jury selection, challenge for cause and the trial; (f) to conduct legal research and analysis of the law, any legal or evidentiary issues to make submissions as to such issues to the court; (g) to explain procedural and evidentiary rules and practices and other court rules to the accused; (h) to assist the accused in making submissions about procedural and evidentiary issues, as the accused requires; (i) to make objections on behalf of the accused as to evidence called by the Crown as part of its case or in cross-examining any defence witnesses; (j) to make objections to or comment on any opening, mid-trial or final instructions to be given to the jury by the court; (k) to examine and cross-examine the Crown’s expert witnesses about their expertise in order to assist the court with its gatekeeping function; (l) to examine and cross-examine police witnesses, if requested to do so by the accused; (m) to examine and cross-examine any civilian witnesses, if requested to do so by the accused; (n) to assist the accused with the examination of his witnesses and presentation of the defence case, if requested by the accused; (o) to present an opening and/or closing statement to the jury, if requested to do so by the accused; (p) to discuss legal and other issues with the Crown on behalf of the accused; (q) anything else expressly requested by the Court after today.
Issue Three: Is Former Defence Counsel Precluded from Being Amicus?
[34] The Crown, relying on the decision of the Ontario Court of Appeal in P.D.C., takes the position that Mr. Bryant is precluded from being appointed as amicus with an expanded adversarial role.
[35] At para. 49 of P.D.C., Zarnett J.A. writing for the court stated that:
[49] I see no error in the trial judge’s decision not to appoint, as amicus, either trial counsel or the appellant’s lawyer in another case. There is a sharp distinction between the duties of a lawyer acting as amicus and the duties of defence counsel, so much so that a “lawyer appointed as amicus who takes on the role of defence counsel is no longer a friend of the court”: CLA, at paras. 49-56. The same issue of conflicting duties to the court and the accused that arise when the role of amicus is expanded to the role of defence counsel, the point addressed in CLA, would be present if former defence counsel, or defence counsel in another case (each of whom owed duties to the appellant), were given the role of amicus.
[36] I do not share the Crown’s view that this decision precludes former defence counsel from acting as amicus. This passage directs that caution be exercised in such circumstances, but the case law otherwise appears to support the view that former defence counsel can be appointed as amicus so long as the appointment does not compromise the actual or apparent fairness of the accused’s trial: R v. Kahsai, 2022 ABCA 12, at para. 99; R v. Amos, 2012 ONCA 334, at para. 29, leave to appeal refused; R v. Ibrahim, 2021 ONCA 241, at para. 97.
[37] There is no bright line rule that bars the appointment of former counsel as amicus: Amos, at para. 29; Ibrahim, at para. 97. The propriety of such an appointment is determined by the circumstances of the case.
[38] In my view, the decision in P.D.C. stands for the proposition that this court must be cognizant that there is a potential conflict of the duties of amicus and those that a defence lawyer owes to his former client. Being cognizant of that potential conflict, it is possible to address and minimize the potential conflict by defining the scope of duties for amicus. I do not see an inherent conflict in this case between the duties owed to the court by amicus, given the limitations of the role and the specific terms of the order I have made, and the duties owed to a former client by a lawyer.
After being discharged, a defence counsel owes an ongoing duty of confidentiality and loyalty to his or her former client: LSO Rules of Professional Conduct, r. 3.4-1, commentary 10; L.L. v. Rohani, 2023 ONSC 4349, at para. 56. As I have set out, the right of the accused to control his own defence restricts the adversarial functions that amicus can assume. For example, amicus cannot make submissions or seek to elicit evidence that would contradict any defences or theories raised by the accused: Kahsai, at para. 45. In my view, the limitations of these two roles – that of the former defence lawyer and amicus - are not inconsistent with one another.
[39] I find support for this proposition in Amos, where the appellant sought a new trial on the grounds that the trial judge erred by appointing as amicus the lawyer he had lost confidence in and discharged. As I have set out, the Ontario Court of Appeal held that “no bright line rule bars the appointment of former counsel as amicus.” Rather, the question is whether the appointment of amicus compromised the actual or apparent fairness of the trial. Whether or not an accused has confidence in the amicus with whom he has no solicitor-client relationship is not relevant to actual or apparent fairness of the trial: Amos, para. 29. The fairness of the trial could be compromised if it appears, based on the record, that counsel allowed its former role as defence counsel to conflict with its role as amicus.
[40] The general proposition that defence counsel is not precluded from being appointed as amicus was re affirmed in Ibrahim, at paras. 97-99. Relying on the premise that there is “no bright line rule” against it as set out in Amos, Trotter J.A. for the court rejected the appellant’s submissions that it was not appropriate to appoint his discharged trial counsel as amicus. Trotter J.A. found that no one was better placed to assume the role of amicus in the circumstances of that case than former defence counsel: Ibrahim, at para. 99.
[41] Similarly, in R v. Mastronardi, 2015 BCCA 338, at paras. 44-55, the Court of Appeal held that the “inherent tension” between the roles of amicus and defence counsel was neutralized by the terms of the order. The court observed that the obligations of amicus do not arise in a vacuum but are set out in the terms of the order. In that case amicus was not required to make legal submissions that were not favourable to the accused. There was also no implicit conflict between duty owed to the court as an advocate (e.g., not to mislead the court) and the terms of the order appointing former defence counsel as amicus. Thus, the danger of conflicting duties did not arise.
[42] In this case, I was satisfied that any potential for conflict between Mr. Bryant’s duties to Mr. McQuarrie as his former client and his duties to the court as amicus would be neutralized by the specific terms of the order I made, defining the scope of the appointment. I was satisfied that Mr. Bryant was best placed to act as amicus in this case.
[43] Mr. Bryant is available for the trial commencing June 3, 2024. He is prepared to take on the appointment. He does not require any additional time to review disclosure or prepare for this trial.
[44] He is an exceptionally experienced criminal lawyer and is well regarded and respected at the Bar. He has reviewed the voluminous disclosure. He has at least once prepared for trial in this case. He has conducted the pre-trial motions in this case. He is capable, at least to some extent, to help manage Mr. McQuarrie’s behaviour in court. He is aware of the nuances of this case and is in the best position to assist the court.
[45] In addition, Mr. Bryant is most aware of the strategies Mr. McQuarrie may take and is in the best position to ensure that the position taken by amicus does not undermine or conflict with those strategies.
[46] Most importantly, his appointment would not require an adjournment of the trial. Given the serious concerns about this trial being conducted within a reasonable time and the well-known s. 11(b) concerns in this jurisdiction, this is a very important factor.
[47] The neutral process the Crown proposed to employ to find another amicus, by referring the matter after the appointment is made to Legal Aid Ontario to circulate it to its roster of lawyers who volunteer for amicus appointments, would almost certainly not net someone who can take on a trial of this length and complexity, in Owen Sound for three months over the summer, on such short notice. Following the process proposed by the Crown would more than likely result in an adjournment of the trial.
[48] As a result, Mr. Bryant was appointed as amicus. The terms of the order are aimed at ensuring that the scope of the appointment is clear, and that there is no actual or perceived conflict with his role as amicus and his duties to Mr. McQuarrie as his former lawyer.
Issue Four: Should the s. 486.3 Order Be Expanded To Other Witnesses?
[49] Section 486.3 of the Criminal Code allows the court to order the accused not to personally cross-examine a witness and to appoint counsel to conduct the cross-examination instead, subject to various conditions. Subsection 486.3(1) applies for witnesses under the age of 18 years and s. 486.3(2) applies for complainants in respect of certain offences. Subsection 486.3(3) is a residual clause for other witness not captured by ss. 486.3(1) and (2). Section 486.3(4) sets out factors for the court to consider when deciding to appoint counsel under subsection (3).
[50] Subsections 486.3(3) and (4) provide:
Other witnesses
(3) In any proceedings against an accused, the judge or justice may, on application of the prosecutor [emphasis added] in respect of a witness who is not entitled to make an application under subsection (1) or (2), or an application of such a witness if the judge or justice is of the opinion that the order would allow the giving of a full and candid account from the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice. If the order is made, the judge or justice shall appoint counsel to conduct the cross-examination.
Factors to be considered
(4) In determining whether to make an order under subsection (3), the judge or justice shall consider:
(a) the age of the witness; (b) the witness’ mental or physical disabilities, if any: (c) the nature of the offence; (d) whether the witness needs the order for their security or to protect them from intimidation or retaliation. (e) the nature of any relationship between the witness and the accused; (f) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and (g) any other factor that the judge or justice considers relevant
[51] It is not disputed that counsel must be appointed to cross-examine the deceased’s mother and father. The question I posed for the Crown is whether the scope of the s. 486.3 appointment could or should be expanded to cross-examine other witnesses.
[52] In my view, the provisions of ss. 486.3(3) and (4) permit a court to appoint a lawyer to conduct cross-examinations for a range of witnesses, subject to the conditions set out in these provisions, including the requirement that an application be made by the Crown or the witness.
[53] In R v. C.M.L., 2016 ONSC 5332, at paras. 49-56, Molloy J. appointed counsel pursuant to these provisions to cross-examine a witness because of the accused’s behaviour. At paras. 52-55 of that decision, Molloy J. observed that:
[52] Mr. R. is not under the age of 18 (which makes s. 486.3(1) inapplicable), and the offence with which Ms. L. is charged does not fall within those listed in s. 486.3(2). There was an application by the prosecutor, which satisfies the first requirement under s. 486.3(3). However, there is nothing about Mr. R. that requires the making of the order. This is not the sort of case where the making of the order “would allow the giving of a full and candid account from the witness of the acts complained of.” Mr. R was willing and able to give a full and candid account of the events. The problem was not Mr. R., but rather the conduct of Ms. L.
[53] The question, then, is whether the appointment of Ms. Rochman as counsel to cross-examine can be said to fall within the residual language in s. 486.3(3) in that it “would otherwise be in the interest of the proper administration of justice.” Arguably, it does. The mere mention of Mr. R.’s name in the courtroom would cause Ms. L. to launch into a diatribe about his character, labelling him as a terrorist, criminal, murderer, and rapist, all without a shred of evidence in support. Given her conduct, permitting Ms. L. to cross-examine Mr. R. would inevitably be counter-productive to the orderly progress of the trial, and likely to be prejudicial to Ms. K’s defence as it could cause the jury to have a negative impression of her. Further, Ms. L. had completely refused to participate in the trial, so it was at least possible that she would refuse to cross-examine Mr. R. in a meaningful way, leaving the key evidence at trial completely untested by cross-examination. I therefore considered appointing counsel to conduct the cross-examination to be in the interest of the proper administration of justice.
[54] In making a decision to appoint counsel under s. 486.3 the trial judge is required to consider a list of relevant factors. None of the relevant factors listed in s. 486.3(4) fit squarely with the circumstances of this case, save for the residual clause (g), which permits the trial judge to assess “any other factor” she considers relevant.”
[55] Thus, the entire statutory jurisdiction is founded on a determination that the appointment of counsel to cross-examine the witness would be in the interest of justice based on any factors I consider relevant. In my view, that adds nothing to the inherent jurisdiction of the trial judge to make any order necessary to ensure the efficient management of the trial in the interests of justice while protecting the accused’s right to a fair trial. With or without s. 486.3, I am of the view that I would have jurisdiction to appoint counsel to cross-examine Mr. R.
[54] Similarly, in Tsiaplas v. R., 2021 SKQB 213, the court held that s. 486.3(3) of the Criminal Code provides the court with a residual authority to appoint counsel to conduct the cross-examination of a witness in certain circumstances. There, counsel was appointed to cross-examine a competent adult where the offence was not of a sexual nature and hence ss. 486.3(1) and (2) did not apply. At paras. 87-88 and 90 of that decision, the court held:
[87] However, the right to represent oneself rather than be represented by a lawyer is not without limitation. As recognized by the Supreme Court in R v. Levogiannis, [1993] 4 SCR 475 at 483, “the evidence of all those involved in the judicial proceedings must be given in a way that is most favourable to eliciting the truth.” If a self-represented party unduly impedes the trial process, including through an obstructive cross-examination, a trial judge can, in certain circumstances resort to s. 486.3(3).
[88] Thus, in my view, s. 486.3 is the statutory embodiment of the balance that must be reached between protecting the right of an accused to represent him or herself whilst, at the same time, ensuring that the truth seeking element of a criminal trial is not unduly hampered. Section 486.3 provides a statutory avenue to obtain a “full and candid account” from a witness.
[90] Section 486.3(3) is not intended to provide a mechanism to provide a self-represented party with a lawyer to conduct the cross-examination of witness. The focus of the section is not upon the accused. Rather, the focus of the section is upon the witness and the court. The section is intended to provide a mechanism to allow a witness to provide the court with a full and candid account of what occurred and thereby protect the overarching purpose of ensuring the proper administration of justice.
[Emphasis added]
[55] On appeal, it was held that the appointment was necessitated because the accused’s intransigence and his refusal to heed the direction provided by the trial judge, notwithstanding multiple opportunities to modify his behaviour. For example, the accused continuously interrupted the Crown’s direct examination of the witness to contradict her testimony with his own version of events. On cross-examination, the accused tried to give his own evidence to counter the witness’s answers when he disagreed with her. He was antagonistic and accused the witness of lying. On multiple occasions, the trial judge had to admonish the accused to treat the witness with respect and to cease editorializing when he received an answer from her that he did not like.
[56] Counsel appointed under s. 486.3 have a different relationship with the accused than amicus. Some decisions of this court have found that court appointed counsel have an implicit solicitor client relationship with the accused: see R. v. Faulkner, 2013 ONSC 2373. They act as the accused’s counsel for the purpose of conducting cross-examinations. Their role is qualified in that they only have authority over the cross-examinations and other incidental matters, but cannot perform other essential functions. For example, counsel appointed under s. 486.3 cannot make legal arguments or opening or closing submissions or provide legal advice to the accused about evidentiary or the procedural issues. As a result, role of amicus and s. 486.3 counsel are distinct.
[57] In respect of s. 486.3, it is not disputed that counsel be appointed to cross-examine the deceased’s parents. The issue is whether counsel can be appointed under s. 486.3 of the Criminal Code for the purpose of cross-examining other witnesses as well. The Crown took the view that there was no basis upon which the Crown could make an application for such an expanded appointment at this time.
[58] In my view, should the need arise during the trial, the role of counsel appointed to cross-examine the two witnesses named by the Crown may be expanded to include other witnesses as well. To this end, the order appointing counsel pursuant to s. 486.3 includes a term that the appointment may be expanded, and it is requested that counsel who take on the s.486.3 appointment be prepared to assume that their participation will be required for the entirety of the Crown’s case or trial.
CONCLUSION:
[59] For these Reasons, I was satisfied that it is in the interest of justice to appoint amicus, with an expanded adversarial mandate on the specific terms set out in the order issued. I am satisfied that Mr. Bryant was best placed to take on that appointment and that no conflict, actual or perceived, arises.
[60] Amicus was therefore appointed in accordance with terms set out in my order dated April 18, 2024, as amended on April 22, 2024.
[61] I was satisfied that counsel be appointed pursuant to s. 486.3 and that the appointment may be expanded on application of the Crown or at the court’s discretion.
[62] An order was made on April 22, 2024 appointing counsel pursuant to s. 486.3.
Chozik J.
Released: May 10, 2024
COURT FILE NO.: CR-21-058 DATE: 2024 05 10 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – MATTHEW MCQUARRIE RULING ON APPLICATION TO APPOINT AMICUS CURIAE AND COUNSEL PURSUANT TO S. 486.3 OF THE CRIMINAL CODE Chozik J. Released: May 10, 2024