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AMICUS CURIAE - APPOINTMENT BY JUDGE

R. v. Jones, 2011 NSPC 50  CanLII


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Per Judge Anne Derrick,


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[6]     Mr. Jones continues to insist on representing himself. I have urged him to have a lawyer for the purposes of his sentencing, especially in light of the stakes involved. I have explained to him that he will still be able to address me before he is sentenced but that a lawyer can provide information about him and his circumstances that will be useful, make submissions and refer to the applicable law, and recommend alternative sentencing options to the one being advanced by the Crown as a fit and proper sentence.


[7]     Despite my entreaties to Mr. Jones to have counsel, he has refused. He says he intends to continue to represent himself.


[8]     I have suggested that Mr. Jones consult with duty counsel although I indicated that while I thought that would be of some assistance to him, what he really needs and what I have  urged, is representation at his sentencing hearing. Mr. Jones’ position remains the same: he will not be engaging a lawyer and wishes to act for himself.


[9]     This morning I also heard from Mr. Jones’ brother, Desmond Jones, who asked to address me from the audience. I recognized Desmond Jones from his attendance last week at his brother’s trial. I will refer to him as Desmond so as to avoid confusion as to which Mr. Jones I am referring to.


[10]   Desmond Jones told me that Mr. Jones’ family is very concerned about him and the delusions he has been expressing. Desmond indicated that Mr. Jones has a misunderstanding of who he is. I took this to be a reference to Mr. Jones identifying himself as Jesus Christ which he implied to me this morning was who he really is.


[11]   Desmond indicated that in the opinion of Mr. Jones’ family, Mr. Jones has very significant mental health issues that are clouding his judgement. Desmond said: “Who he believes himself to be trumps his judgement.” Mr. Jones apparently believes himself to be all powerful and “does not understand the impact of his actions on his family, his community, Shealynn, Isha, Niala, or himself.”


[12]   Desmond also told me that at Mr. Jones’ bail hearing it was indicated that a deportation order would be sought for Mr. Jones in the event he was convicted. I was advised that Mr. Jones has permanent residency in Canada as of June 2003 which was facilitated through private sponsors. Mr. Jones came to Canada from Sierra Leone, which we all know was gripped by a protracted and exceptionally brutal civil war.


[13]   Desmond concluded his remarks to me by stating that Mr. Jones is on a path of self-destruction and urged that his mental health issues be explored “so that justice can be served.”


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there is no indication of Mr. Jones being unfit: he just conducted his trial and I have not seen any indication of a fitness issue within the legal meaning of this concept. I will also note that I did comment on section 16(1) of the Criminal Code in my decision convicting Mr. Jones.


[15]   I am satisfied that in relation to Mr. Jones’ sentencing I would benefit substantially from the assistance of counsel other than the Crown. The Crown has a brief to represent the public interest and is an officer of the Court. However a criminal proceeding is an adversarial proceeding. On the one hand I have the Crown and on the other hand I have a defendant who refuses to engage a lawyer. The Crown is seeking a prison sentence for Mr. Jones. In addition to not being legally trained, Mr. Jones’ mental health is being raised as a substantial concern by his family. I have already noted in my decision convicting Mr. Jones that he may be laboring under a delusion about who he is, an impression that was reinforced for me this morning in comments he made to me while we were addressing the matter of proceeding with his sentencing. This is the context in which I will be dealing with a recommendation from the Crown that Mr. Jones be sentenced to a penitentiary term.  Ms. Cogswell for the Crown has indicated that she is in agreement that the appointment of amicus counsel in this case is appropriate.


[16]   First of all, it is important, when deciding legal issues that the court be provided with the “appropriate adversarial context.” This point was made by the Nova Scotia Court of Appeal in R. v. McGrath, [2008] N.S.J. No. 135, in relation to the matter of a moot appeal.


[17]   I am satisfied I have the discretion to order the appointment of counsel to assist me, in other words, an amicus curiae. I note the following comments in R. v. Romanowicz, [1999] O.J. No. 3191from the Ontario Court of Appeal:


59      The authority of the criminal trial court to control its own process has been recognized both where the court exercises a discretionary power granted by the Criminal Code and where there is no statutory authority for the court's action. For example, it has been held that criminal courts have the power to appoint counsel…



[18]   The reference to appointing counsel in Romanowicz is a reference to appointing Rowbotham counsel to represent an accused. However the power to appoint counsel also extends to appointing amicus counsel for the court’s assistance where appropriate. Such an appointment is appropriate in a case that engages the court’s obligations to safeguard the rule of law and the integrity of the criminal justice system.


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[20]   I have determined on all the circumstances of this case that I require counsel to assist me in relation to the issues in Mr. Jones’ sentencing.  That counsel can also consider whether Mr. Jones’ mental health should be addressed under the Criminal Code provisions or otherwise in the context of the sentencing process. I intend to hold a pre-trial, once I have selected counsel, to instruct on the assistance I am seeking.


[21]   It is for the court to determine what it needs in terms of counsel. Amicus curiae are typically senior members of the bar. I require experienced, senior counsel from the criminal defence bar, either Legal Aid or the private bar. By experienced, senior counsel I mean at least 10 years practice that includes criminal defence work. I am seeking to have a short list of candidates willing to act as amicus provided to me and I will make a selection. ...

Jim O'Neil, LL.B.

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