CITATION: R. v. Lam, 2025 ONSC 1221
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Hue Lam
Applicant
Mohamed Salama for the Respondent
Sean Jenkins, Counsel for Legal Aid Ontario
Moiz Karimjee, Counsel for the Crown Attorney
Paolo Giancaterino for the Applicant
HEARD: February 21, 2025
RULING ON ROWBOTHAM APPLICATION
ANNE London-weinstein j.
1The Applicant is charged on one count of first-degree murder, along with her sister Chau Lam.
2The Applicant’s case is presently before the Ontario Superior Court of Justice and is scheduled for pre-trial motions commencing on March 31, 2025.
3The trial date is scheduled to commence before a judge and jury on June 9, 2025, for five weeks.
4I denied the Applicant’s Rowbotham application today after Mr. Salama elicited evidence from the Applicant that she had granted her brother with power of attorney in relation to the sale of her home, which was valued at more than $300,000, and had not asked her brother to direct any funds from the sale of the home to help her fund her defence.
5In order to obtain the Rowbotham order, the Applicant must establish the following three preconditions on a balance of probabilities:
(1) Legal Aid funding has been denied;
(2) The accused has no other financial means to fund counsel; and
(3) Representation of the accused by counsel is essential to a fair trial.
R. v. Rafilovich, 2019 SCC 51, [2019] 3 S.C.R. 838, at para. 80.
6Mr. Salama conceded that precondition (3) was met. In regard to precondition (2), Mr. Jenkins confirmed during the hearing that the Legal Aid appeal was completed and the appeal was denied; legal aid funding would not be available. The remaining issue was whether precondition 2 had been met. It was not met and the application was denied as a result.
7The Applicant had agreed to a payment agreement with Legal Aid Ontario and signed documentation permitting Legal Aid Ontario to put a lien on her property. Through inadvertence the lien was not registered.
8The Applicant’s brother sold the home pursuant to the Applicant’s instructions. As the lien had not been registered, Legal Aid Ontario had no way of recovering the funds pledged by the Applicant. The Applicant has not asked her brother to use the proceeds of the sale of the home to fund her defence. As a result, the Rowbotham application fails as the Applicant has not established that she has no other financial means to fund counsel.
9However, the assistance of counsel is imperative in this case. It is hard to imagine a trial which poses greater trial management challenges for the trial judge. The Applicant does not speak English and requires Vietnamese interpretation. She has Parkinson’s disease and is in a wheelchair. Her sister is co-accused and they will be tried together with a judge and jury. They are both charged with first-degree murder.
10The courthouse was unable to even physically accommodate the Applicant’s presence in the courtroom today when she was scheduled to attend the hearing of this matter. She participated in this hearing by Zoom from the Ottawa-Carleton Detention Centre. The trial judge will need the assistance of amicus to navigate the many trial management issues in this case.
11Mr. Karimjee, for the Provincial Crown, agreed that amicus should be appointed. Ms. Lam does not wish to represent herself and agrees to Mr. Giancaterino being appointed as amicus.
12The issue at this point is defining the role of amicus at trial. Mr. Giancaterino is willing to act as amicus. He has acted for Ms. Lam throughout the preliminary hearing in this matter and is an experienced and highly regarded member of the defence bar.
13It is my view that the trial management challenges in this case mandate the appointment of amicus. I have the jurisdiction to appoint amicus, as doing so is required for the just adjudication of this case: R. v. Kahsai, 2023 SCC 20, at para. 36.
14The Crown is seeking to introduce statements made by the Applicant throughout the investigation which will be contested on a voluntariness voir dire.
15Counsel seeks to exclude evidence obtained as a result of alleged Canadian Charter of Rights and Freedoms breaches. A number of complex legal and factual issues can be reasonably anticipated. This matter also involves a co-accused. The Applicant has little ability to speak English. She lacks legal education. Also, the Applicant is in custody and has limited mobility. These factors will inhibit her ability to prepare properly for trial.
16Our system of criminal law is an adversarial one. The duties arising from the guarantee of trial fairness are shaped, in part, by this reality. It is for the parties to bring forward relevant evidence and argument that can frame the issues while the trier presides as an objective decision maker: see Kahsai, at para. 51, citing Don Stuart and Tim Quigley, Learning Canadian Criminal Procedure, 14th ed. (Toronto: Carswell, 2022), at pp. 593-94.
17The adversarial system depends on certain conditions precedent in order for trial fairness to be preserved. In the absence of these conditions, trial fairness is compromised, and the perception of the administration of justice also suffers.
18The system depends on the ability of parties to advance their own position and challenge the case presented by an opposing party through the exercise of adversarial functions. This would include settling on a litigation strategy, the selection of a jury, making submission that raise or respond to evidentiary or other legal concerns, examining and cross-examining witnesses, making objections, and delivering opening and closing arguments: Kahsai, at para. 52.
19The risk of imbalance in the adversarial process is exacerbated when an accused is unrepresented: Kahsai, at para. 53.
20The preservation of trial fairness requires the appointment of amicus in this case.
21No one in this case took issue with the former defence counsel’s appointment as amicus. While amicus owes a duty of loyalty exclusively to the court, the role is highly adaptable and can cover off a broad spectrum of functions. The precise role to be played by amicus depends on the role identified by the court: Kahsai, at para. 38.
22Some of the adversarial functions amicus can execute were discussed 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.
23Once appointed as amicus, counsel does not and cannot form a solicitor-client relationship with the accused. An amicus does not take instructions from an accused person and cannot be discharged by the accused. While amicus can advocate in ways that advance the interests of the defence, amicus does not represent the accused. The role of amicus is to act as counsel for the court: Kahsai, at paras. 41-42. A confidentiality order will be required.
24The Crown did not object to Mr. Giancaterino, who has acted as defence counsel for the Applicant, to be appointed as amicus. I also see no barrier to this appointment. Former defence counsel can be selected as amicus so long as the appointment does not interfere with the actual or apparent fairness of the accused’s trial: R. v. Kahsai, 2022 ABCA 12, 39 Alta. L.R. (7th) 12, at para. 99, aff’d 2023 SCC 20; R. v. Amos, 2012 ONCA 334, at para. 29; R. v. Ibrahim, 2021 ONCA 241, at para. 97.
25The court is aware that there is a potential conflict between the duties of amicus and those which defence counsel owes to his former client: R. v. P.D.C., 2021 ONCA 134, 401 C.C.C. (3d) 406. Being aware of this potential for conflict requires the court to accurately define the scope of the role of amicus.
26However, in this case, there is no conflict between the duties owed to the court by amicus, given the limitations of the role and the specific terms of the order, and the duties owed by a lawyer to a former client.
27The pre-trial motions are fast approaching next month. Mr. Giancaterino is already familiar with the file, and the issues. He also has a good relationship with the Applicant. I find that, as in Ibrahim, no one is better placed than former defence counsel to assume the role of amicus in the circumstances of this case: Ibrahim, at para. 99. Mr. Giancaterino’s appointment will also avoid the necessity of adjourning the pre-trial motions.
Conclusion:
28For these reasons, I have declined to make a Rowbotham order, but am convinced that it is in the interests of justice to appoint amicus, with an expanded adversarial mandate on the specific terms set out in the order issued. Amicus is therefore appointed as of today’s date. Mr. Giancaterino will be paid at Legal Aid Ontario rates payable by His Majesty the King in Right of Ontario. I have also ordered that a budget be provided for this case. This budget is to be in accordance with Legal Aid rates, and in accordance with Legal Aid’s regular payment practices for homicide trials such as this one.
29I am grateful to counsel for the quality of the written and oral advocacy provided at this hearing, especially given the short notice to the parties and the exigency of the looming trial.
Anne London-Weinstein J.
Released: February 28, 2025
CITATION: R. v. Lam, 2025 ONSC 1221
COURT FILE NO.: 22-1140359
DATE: 2025/02/28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Hue Lam
Applicant
ruling on rowbotham application
Anne London-Weinstein J.
Released: February 28, 2025