R. v. Walker, 2019 ONCA 765
MENTAL HEALTH - DANGEROUS OFFENDER - INDETERMINATE SENTENCE - AMICUS CURIAE
Background
The Appellant, Ms. Krista Walker, has had a difficult life. At five years old, meningitis destroyed a portion of her brain. Throughout her childhood she moved between homes, suffered from abuse and was eventually placed under CAS’ care. Ms. Walker has a history of self-harm which led to a cycle of involuntary admissions to psychiatric facilities. She began accumulating small, non-violent criminal convictions. She has been diagnosed with a variety of personality disorders, and tests in the “extremely low” IQ range.
In January 2010, Ms. Walker pled guilty to aggravated assault in relation to her stabbing a stranger in the heart. In March 2012, she was declared a dangerous offender and an indeterminate sentence was imposed. Although the Appellant’s criminal record did not suggest a pattern of dangerous conduct, the Crown relied on prior acts of violence that never resulted in criminal charges. It is important to note that during the hearing, Ms. Walker (although appointed amicus curiae) was self-represented.
Ms. Walker appeals the dangerous offender finding on the ground that several procedural errors created an appearance of unfairness and actual unfairness resulting in a miscarriage of justice.
Issue on Appeal
This appeal revolves around whether there were insufficient procedural safeguards to ensure a fair proceeding given that the accused was self-represented with mental, behavioural and cognitive challenges.
Dangerous Offender Designation - The Basics
Dangerous offender designations are governed under ss. 752 and 753 of the Criminal Code. The offence in question must constitute a “serious personal injury offence” under s. 752. The Crown bears the onus to establish beyond a reasonable doubt that the offender “constitutes a threat to the life, safety, physical, or mental well-being of other persons” This can be established by demonstrating persistent behaviour (s. 753(a)) where the accused shows an inability to restrain themselves, indifference towards the consequences of their actions, or the accused has a high risk of re-offending.
Dangerous offender designations last for life. The Court can then sentence the dangerous offender (1) to an indeterminate sentence with parole ineligibility for 7 years, (2) term of imprisonment followed by long-term supervision for up to 10 years, or (3) term of imprisonment.
Dangerous offender proceedings are part of the sentencing process and therefore governed by sentencing principles, objectives and evidentiary rules.
Analysis
Both actual and perceived unfairness in the court system can diminish the public’s confidence in the administration of justice.
Failure to explore whether the Appellant wished to proceed as a self-represented accused
The Appellant expressed that she wished to be self-represented during the initial guilty plea proceeding (which was later struck). Three months later, at the trial, the court appeared to have operated on the assumption that the Appellant still wished to be self-represented at trial. This was a multi-day trial, for extremely serious charges. From the outset the Crown indicated it would be seeking a lengthy sentence. Ms. Walker was facing serious jeopardy. The first day of trial demonstrated that Ms. Walker clearly needed counsel: she was unresponsive to questions, swearing at members of the court, etc.
The issue is not whether or not the Appellant would have retained counsel if given the chance. The issue is it was assumed she did not want counsel - the Appellant was never given the opportunity to make a conscious, informed decision as to whether she wanted representation for the trial thus creating an appearance of unfairness.
2. Failure to explore her fitness to stand trial/plead guilty
A fitness report was prepared prior to her first guilty plea (which was later struck for unrelated reasons). No fitness hearing was conducted and no finding of fitness made at that time.
Fitness to Stand Trial - The Basics
A key aspect of procedural fairness is that the accused be physically and mentally present at trial as defined by section 2 of the Criminal Code. To be “fit” requires that the accused understand the nature of, and the possible consequences of the proceedings. The test for fitness can be articulated as whether the witness has “sufficient mental fitness to participate in the proceedings in a meaningful way” (See R v Taylor (1992), 11 OR (3d) 323). More recently, the ONCA recognized in R v Morrissey (2007 ONCA 770) that there must be meaningful presence and participation of the accused at trial.
Accused persons are presumed fit to stand trial; this presumption can be rebutted on a balance of probabilities (see s. 672.22). Crown, defence or the trial judge can raise the issue of fitness.
Sections 2 and 672.23(1) refer to fitness being assessed “before a verdict is rendered”. Where fitness concerns arise after a finding of guilt has been made, however, the proceedings cannot continue until the accused’s fitness is assessed and determined.
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The trial record makes it clear that there were a number of signs that should have raised concerns for both the hearing judge and the Crown calling into question the Appellant’s fitness. For example, a couple of days after pleading guilty, Ms. Walker expressed frustration that they were not letting her plead guilty. Moreover, she did not seem to appreciate the consequences or nature of a dangerous offender designation. The hearing judge erred by failing to take appropriate steps to address the Appellant’s “fitness”.
3. The Role of Amicus Curiae
Judges have a duty to protect the fairness of the proceedings, particularly in the case of self-represented accused. This requires judge to perform balancing acts to ensure fairness to the accused, without compromising their impartiality. Where a judge is not in the position to ensure fairness of a proceeding alone (particularly in complex cases), amicus curiae should be appointed to assist the court in meeting their fairness obligation.
The role of amicus curiae is case-specific. Amicus, however, must be wary of adopting the role of defence counsel. Amicus’ sole duty is to the court. The purpose of an amicus appointment is not to further the interests of the accused.
The ONCA concludes that amicus, in a number of ways, failed to understand its role to the court. For example, The Crown relied on medical records revealing the Appellant’s prior [uncharge] dangerous behaviour in order to satisfy its onus re: dangerous offender designation. Amicus did not challenge the use of these records on the basis that they proved the Appellant’s aggression. While amicus was not required to take a position on the use of the records, amicus’ silence reveals a failure to fulfill her role: ensuring fairness of a proceeding of a self-represented accused who was demonstrably incapable of protecting herself.
Moreover, during her closing submissions, amicus advocated for Ms. Walker’s designation as a dangerous offender and an indeterminate sentence. This is the antithesis of the role amicus was appointed to perform. It was entirely inappropriate for amicus to bring her personal views into the courtroom.
Conclusion
This appeal is not premised on an error of law. Curative proviso does not apply to miscarriages of justice premised on procedural unfairness. Fairburn JA, writing for the court, sets aside the dangerous offender designation and the indeterminate sentence, and orders a new hearing.