



COURT
    OF APPEAL FOR ONTARIO

CITATION: R. v. Walker, 2019 ONCA 765

DATE: 20190930

DOCKET: C56010

Feldman, Fairburn and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Krista Walker

Appellant

Frank Addario and Megan Savard, for the
    appellant

John Patton, for the respondent

Heard: April 3, 2019

On appeal from the sentence imposed on March
    21, 2012 by Justice Rebecca Rutherford of the Ontario Court of Justice.

Fairburn J.A.:

OVERVIEW

[1]

Meningitis destroyed a portion of Ms. Walkers brain when she was
    only five months old. She spent most of her young childhood moving between
    family homes. She was sometimes abused in those homes. She was eventually
    placed into the care of the Childrens Aid Society.

[2]

By the time she was 10 years of age,
Ms.
    Walker started experiencing seizures, and by the time that she was 14 years of
    age, she began self-harming. Repeated suicide attempts followed. This led to a
    steady and relentless cycle of involuntary admissions to psychiatric facilities.

[3]

When she was 30 years of age, Ms. Walker started
    accumulating a few criminal convictions, but was never sent to the
    penitentiary. Then, on March 6, 2009, when Ms. Walker was 34 years of age, she stabbed
    a woman in the heart. But for the immediate response of medical professionals,
    the woman would have died. On January 12, 2010, Ms. Walker entered guilty pleas
    to aggravated assault, carrying a concealed weapon and breach of probation in
    relation to the incident. On March 21, 2012, she was declared a dangerous
    offender and an indeterminate sentence was imposed.

[4]

The dangerous offender hearing was as complex a hearing
    as the courts see. The experienced trial Crown acknowledged that it was a
    unique hearing, in large measure because Ms. Walkers actual criminal record
    did not necessarily support a pattern of conduct that would have met the
    requirements for a dangerous offender finding. Accordingly, the Crown set out
    to prove over 40 prior acts of violence and threats of violence that had
    never resulted in criminal charges, let alone convictions.

[5]

The hearing was made all the more complex by the
    fact that Ms. Walker was a difficult, self-represented accused. She is a person
    who has been diagnosed with borderline personality disorder, borderline
    intellectual functioning and dysthymia, a persistent depressive condition. The
    expert evidence suggests, and her behaviour in court shows, that she has
    problems with interpersonal relationships, impulsivity, and difficulty
    controlling her anger. She easily decompensates, has paranoid ideation and
    experiences severe dissociative symptoms.

[6]

Ms. Walker has been described as having limited
    intellectual functioning secondary to the brain damage she suffered as a
    child. Neuropsychological tests showed that she possesses a composite measure
    of general intelligence, fall[ing] below the 1
st
percentile, in the
    Extremely Low range. There was evidence before the court that her cognitive challenges
    undermine her ability to weigh options and appreciate the consequences of her
    behaviour.

[7]

It would be a significant oversight not to
    acknowledge the enormously difficult task confronting the hearing judge.
    Against the backdrop of a highly complex and lengthy hearing, she had to manage
    a very difficult, frequently intransigent, often vulgar and sometimes violent
    self-represented accused. The record clearly displays the hearing judges
    dedication to controlling the proceeding and navigating it fairly to a just
    conclusion. The hearing judge appointed
amicus curiae

to assist
    her in meeting that goal.

[8]

Ms. Walker, who is represented on appeal, appeals
    the dangerous offender finding and indeterminate sentence imposed. She claims
    that she has been the subject of a miscarriage of justice arising from what she
    describes as a number of procedural errors that created both an appearance of
    unfairness and actual unfairness in the dangerous offender proceeding. Ms.
    Walker contends that the unfairness can be seen in several ways:


(i)

a failure to give her an opportunity to make an
    informed choice about whether to proceed with or without counsel when she
    desperately needed one;


(ii)

a failure to inquire into her fitness when the
    circumstances cried out for such an inquiry;


(iii)

a failure of
amicus curiae
to resist
    the admission of institutional records elicited to assist in establishing a
    pattern of conduct justifying a finding of dangerousness pursuant to s. 753(1)(a)(i)
    and (ii) of the
Criminal Code,

R.S.C.,
    1985, c. C-46;


(iv)

a failure of
amicus curiae

to explore
    adequate substitutes for Ms. Walkers presence in court when she was no longer
    able to psychologically  handle the proceedings; and


(v)

amicus curiaes
closing argument, at the end of the proceedings, and in Ms. Walkers absence, advocating
    in favour of finding Ms. Walker a dangerous offender and imposing an
    indeterminate sentence.

[9]

At its core, this case comes down to whether
    there has been a miscarriage of justice occasioned by failing to put in place sufficient
    procedural safeguards to ensure a fair proceeding for a self-represented
    accused with mental, behavioural, and cognitive challenges, who was entirely
    incapable of representing herself, and who faced an application that could
    deprive her of her liberty for the rest of her life. Despite the extraordinary
    effort put into the hearing, I conclude that there were several actions and
    inactions that resulted in both the appearance of unfairness and actual
    unfairness giving rise to a miscarriage of justice. I would allow the appeal.

THE INDEX OFFENCE

[10]

On March 6, 2009, Ms. Walker got into an
    argument with a third party at a drop-in centre. When the complainant attempted
    to intervene in that argument, the appellant took a paring knife from her purse
    and stabbed the complainant in the chest, puncturing her heart.

[11]

Ms. Walker was charged with a number of
    offences, including attempted murder.

THE FIRST GUILTY PLEA

[12]

On May 15, 2009, about two months following the
    stabbing incident, Ms. Walker pled guilty to the attempted murder charge. Before
    doing so, she informed the court that she had discharged her lawyer on this
    matter and intended to proceed on her own.

[13]

A pre-sentence report was ordered. When the report
    was returned, it revealed that Ms. Walker had a version of events that
    suggested that she may have been acting in self-defence. Upon learning that
    information, the court decided to appoint
amicus curiae

to
    assist.

[14]

Once on the record, based upon discussions she
    had with Ms. Walker,
amicus curiae

expressed concern that Ms.
    Walker might not be able to understand the proceedings, conduct a defence, or
    instruct counsel. The court joined in those concerns. Accordingly, on August 21,
    2009, a fitness assessment was ordered pursuant to s. 672.11(a) of the
Criminal
    Code
.

[15]

The October 1, 2009 fitness report resulted in
    the suggestion that Ms. Walker was then fit to stand trial: Ms. Walker
    presents currently as fit to stand trial. When the matter returned to court on
    October 13, 2009, a fitness hearing was not conducted. Instead, on the basis of
    Ms. Walkers claim that she may have been acting in self-defence, the plea was
    struck and the matter was set down for trial.

THE SECOND GUILTY PLEA

[16]

On January 12, 2010, the matter came up for
    trial before a different judge. Given that this judge ultimately presided over
    the dangerous offender proceeding, I will refer to her as the hearing judge. The
    appellant again appeared without counsel. As will be discussed shortly, the matter
    appears to have proceeded on the assumption that Ms. Walker did not wish to
    retain counsel. At the request of the previous judge who had presided over the
    initial plea, the
amicus curiae

followed the matter.

[17]

The Crown was prepared to permit Ms. Walker to plead
    guilty to aggravated assault, carrying a concealed weapon and breach of
    probation. However, the Crown was clear that, whatever the plea, if Ms. Walker
    was convicted, the Crown would be seeking a lengthy penitentiary term or a long
    term or dangerous offender designation. Ms. Walker equivocated on whether she
    would even enter a plea. Ms. Walker spoke with
amicus curiae

after
    the court encouraged her to do so. After a court break,
amicus
informed
    the court that an agreement had been reached and Ms. Walker would be pleading
    guilty.

[18]

The hearing judge conducted a plea inquiry,
    impressing upon Ms. Walker the implications of pleading guilty, including that
    the Crown might seek a dangerous offender designation. The hearing judge
    explained that this meant that she could receive a life sentence. Ms. Walker
    then pled guilty and admitted the facts read into the record by Crown counsel.

GENERAL NATURE OF THE DANGEROUS OFFENDER
    PROCEEDING

[19]

Shortly after the pleas were entered, the court ordered
    an assessment for the purposes of a dangerous offender proceeding pursuant to s.
    752.1(1) of the
Criminal Code
. More than two years later, the
    dangerous offender finding was made.

[20]

The stabbing through the heart incident was an
    obvious serious personal injury offence within the meaning of s. 752 of the
Criminal
    Code
. Accordingly, the real issues for determination at the dangerous
    offender hearing were: whether Ms. Walker constituted a threat to the life,
    safety or physical or mental well-being of other persons on the basis that she
    had engaged in a pattern of repetitive behaviour or persistent aggressive
    behaviour within the meaning of ss. 753(a)(i) or (ii) of the
Criminal Code
;
    and, if so, whether something less than an indeterminate sentence would provide
    adequate protection to the public pursuant to s. 753(4.1) of the
Criminal
    Code
. As I have already mentioned, in addition to Ms. Walkers criminal
    record, the trial Crown set out to prove dozens of prior acts of violence and
    threats of violence, calling over 30 witnesses to testify and filing a large
    number of institutional records.

[21]

Ms. Walker was detained at the Vanier
    Correctional Centre for Women. Between the time of her arrest and October 3,
    2011, when the operational manager from Vanier testified at the hearing, Ms.
    Walker had spent 675 days in the segregation unit on 23-hour lockup. Ms.
    Walkers mental condition deteriorated as the dangerous offender hearing
    progressed. The fact that Ms. Walker was in segregation for so much time could
    have contributed to that situation:
Canadian Civil Liberties Association v.
    Canada (Attorney General)
, 2019 ONCA 243, 144 O.R. (3d) 641, at paras.
    62-77, leave to appeal requested, 38574.

[22]

The record overflows with her emotional roller
    coaster. At times she was belligerent, berating and sometimes threatening all
    those involved in the proceeding. At other times she was obstinate and listless
    and refused to speak. At yet other times she was emotional, crying and saying
    she was a fucking failure and wanted to kill herself, and begged not to hear any
    more evidence. At times she came to court and was engaged, testifying on more
    than one occasion, while at other times she refused to even come out of the
    cells. Eventually she refused to come to court altogether.

[23]

The result was that Ms. Walker was not present in
    the courtroom during critical evidence, including the testimony of the
    psychiatrists who provided expert evidence about her psychological challenges
    and her potential manageability within the community. At the end of the
    hearing, again without Ms. Walker present, both Crown counsel and
amicus
    curiae

advocated in favour of finding her a dangerous offender and imposing
    an indeterminate sentence. The hearing judge concurred.

ANALYSIS

Overview

[24]

A dangerous offender proceeding is one of the
    most serious proceedings known to law. It not only asks whether a person should
    have a label of dangerousness attached to him or her for life, but also whether
    the person should be at risk of having his or her right to liberty removed for
    life. The seriousness of such an inquiry to both the individual and to society is
    beyond dispute.

[25]

The publics confidence in the administration of
    justice is inextricably linked to the rule of law. The rule of law is threatened
    when the public loses confidence in the justice system. Both actual and
    perceived unfairness in the court system can shake that confidence. That is why
    procedural fairness must be jealously guarded and strictly enforced,
    particularly in proceedings where the individual and societal stakes are high,
    like dangerous offender proceedings:
R. v. McDonald
,
2018 ONCA
    369, 360 C.C.C. (3d) 494, at para. 41. For the reasons that follow, I conclude
    that the dangerous offender proceeding was not procedurally fair.

[26]

I will start by addressing two interrelated
    issues: the failure to adequately explore whether Ms. Walker wished to proceed
    as a self-represented accused and the failure to explore her fitness. As the
    balance of the issues engage, at least at some level, the alleged failings of
amicus
    curiae
,
after addressing the first two issues I will then turn to the
    law respecting the appointment of
amicus
and the specific role that
amicus

was expected to perform in this case. That will be followed by a discussion
    of the applications to admit fresh evidence. I will conclude by addressing three
    examples of perceived and actual unfairness in the proceeding, which are linked
    to the role of
amicus
:


(i)

the approach to psychiatric hospital records to
    prove prior acts of violence and threats of violence;


(ii)

the failure to explore meaningful options to
    keep Ms. Walker informed about the proceeding when she was absent from the courtroom;
    and


(iii)

the fact that
amicus curiae
advocated in
    favour of declaring Ms. Walker a dangerous offender and imposing an indeterminate
    sentence.

The failure to inquire into whether the appellant
    wished to retain counsel

[27]

Ms. Walker expressed her desire to be
    self-represented during the initial guilty plea proceeding. Three months after
    that plea was struck, Ms. Walker returned to court for a pre-scheduled,
    multi-day trial.

[28]

Everyone appears to have operated on the
    assumption that when Ms. Walker appeared for trial on January 12, 2010, she
    wished to proceed without counsel. This is evidenced by the hearing judges
    comment to Ms. Walker:

Now, I know you are representing yourself. You
    have a very competent and able lawyer here who is helping me [referring to
amicus
    curiae
], and who will also assist you.

[29]

Ms. Walker argues that the hearing judge erred
    by not inquiring into whether she wished to retain counsel at the outset of the
    proceeding on the first day scheduled for her trial, before she entered her
    second guilty plea. The respondent disagrees, claiming that the hearing judge
    was merely allowing Ms. Walker to act on her own conscious decision to be
    self-represented, a choice that had been exercised at the earlier guilty plea
    proceedings. Ms. Walker had had rocky relationships with lawyers, having previously
    discharged counsel in some matters and threatened former counsel in others. The
    respondent says that Ms. Walker clearly knew that she could retain counsel if
    she wished to do so. She simply made a considered and unequivocal choice not
    to.

[30]

The respondent may be right that Ms. Walker most
    likely would not have retained counsel, even if the hearing judge had addressed
    the issue with her. Even so, in light of all of the surrounding circumstances, the
    matter should have been squarely addressed with her on the first day of trial
    before she entered her guilty pleas. I am of the view that, without that
    inquiry, and in the unique circumstances of this case, Ms. Walkers decision
    to proceed without counsel cannot be characterized as an informed decision to
    proceed in that manner:
R. v. Romanowicz
(1999), 138 C.C.C. (3d) 225
    (Ont. C.A.), at para. 36.

[31]

Ms. Walker was in profound jeopardy. Crown
    counsel announced at the outset that the Crown would be asking for a very
    lengthy penitentiary term, at a minimum, and possibly a dangerous offender designation.
    The aggravated assault charge that Ms. Walker was facing and to which she was considering
    pleading guilty would constitute the index offence for the dangerous offender
    hearing that could follow. The stakes were high for this accused with mental,
    behavioural and cognitive challenges.

[32]

The first 25 pages of transcript from the first
    day scheduled for trial demonstrate why Ms. Walker was in desperate need of an
    advocate and why it was a significant oversight to fail to canvass the issue
    with her. Within the first hour of the proceedings, the following events
    occurred in the following order:


(i)

Ms. Walker was non-responsive to questions posed
    by the trial judge,


(ii)

she then claimed that she had acted in fucking
    self-defence and that she was fucked up and had already done her time,


(iii)

she addressed everyone in court by saying fuck
    you all and said that she would not plead guilty because there was no fucking
    proof,


(iv)

she expressed her hope that the complainant whom
    she had stabbed in the heart would die (I hope that fucking girl dies),


(v)

she said that if her friends found the
    complainant that they would fucking hurt her,


(vi)

she then declared that she would not plead
    guilty because she had already done her fucking time and that there was no
    proof of the offence because there was no video,


(vii)

she then announced that she would admit it,
    and


(viii)

she concluded by entering guilty pleas.

Ms. Walkers difficulties were thus on
    full display in the first moments of the first day of the proceedings.

[33]

While some accused find themselves without
    lawyers because they are denied state funding, no one has suggested that Ms.
    Walker would have been ineligible for funding. Whether she would have decided
    to retain a lawyer or not is not the issue. Whether she would have later fired
    any lawyer she retained is not the issue. The issue is that Ms. Walkers
    self-represented status was considered a
fait accompli
.

[34]

The hearing judge never asked whether she wished
    to retain counsel at the outset of the proceedings, before she entered her
    second guilty plea. It was assumed she did not. Moreover, it was never
    explained to Ms. Walker that, in light of the severe jeopardy she was facing,
    she should strongly consider having legal representation and could be given an
    opportunity to further consider this option, if she so wished.

[35]

I do not accept that Ms. Walker made a conscious,
    informed decision to proceed without a lawyer when she came before the court
    for trial. At a minimum, the failure to squarely address the matter with her,
    and explain why she may benefit from actual legal representation, created an
    appearance of unfairness.

The failure to inquire into fitness

[36]

During the first minutes of the first day of the
    proceedings, when Ms. Walker was non-responsive to the hearing judges inquiries,
    the hearing judge asked
amicus curiae

if she was satisfied that
    Ms. Walker could understand what was being said.
Amicus

informed
    the court that Ms. Walker had been found fit. While there had been a fitness
    report prepared three months earlier, and Ms. Walker had been assessed as fit
    at that time, there had been no fitness hearing conducted and no finding of
    fitness made. In the over 26 months that followed, no one questioned Ms.
    Walkers fitness again, except to the extent of baldly observing that she was
    fit. For instance, as will be addressed later in these reasons,
amicus

took the position that the court should accede to Ms. Walkers request to
    be absent from the dangerous offender hearing, partially on the basis that
    [s]he is fit, so this choice seems to be a legitimate choice.

[37]

Counsel for the appellant says that after the
    appellant came before the hearing judge, she showed obvious signs of being
    unfit and the matter should have been explored.

[38]

The respondent says that there is no merit to
    the suggestion that Ms. Walker was unfit. The matter was raised before the
    initial trial judge and a fitness assessment was prepared on October 1, 2009.
    Ms. Walker was found to be fit by a psychiatrist at that time. The respondent
    maintains that there was nothing to suggest that Ms. Walkers status changed
    after that report was authored. He argues that she demonstrated her ability to
    communicate with
amicus

when she chose to, had a keen
    understanding of the consequences of the proceedings and was not a confused
    spectator. The respondent maintains that it would have been irresponsible to
    delay the proceedings to conduct a fitness hearing without an evidentiary
    foundation.

[39]

I do not share the respondents view.

[40]

It is a fundamental aspect of procedural
    fairness that an accused be both physically and mentally present at trial.
    Section 2 of the
Criminal Code
sets out the criteria against which
    fitness is considered:

"unfit to stand trial"
means unable on account of mental disorder to conduct a defence at
    any stage of the proceedings before a verdict is rendered or to instruct
    counsel to do so, and, in particular, unable on account of mental disorder to

(a) understand the nature or
    object of the proceedings,

(b) understand the possible
    consequences of the proceedings, or

(c) communicate with counsel.

[41]

The test for fitness has been referred to as a
    limited cognitive capacity test. The accused must have sufficient mental
    fitness to participate in the proceedings in a meaningful way:
R. v.
    Taylor
(1992), 11 O.R. (3d) 323, at p. 338 (C.A.). In
R. v. Morrissey
,
    2007 ONCA 770, at para. 27, leave to appeal refused, [2008] S.C.C.A. No. 102, this
    court commented on the limited cognitive capacity test:

It requires only a
    relatively rudimentary understanding of the judicial process  sufficient,
    essentially, to enable the accused to conduct a defence and to instruct counsel
    in that regard. It is in that sense that the accused must be able "to
    communicate with counsel" and relate the facts concerning the offence.

[42]

In
Morrissey
, at para. 36, this court
    underscored the need for meaningful presence and meaningful participation [of
    the accused] at the trial and described these requirements as the touchstones
    of the inquiry into fitness.

[43]

Although an accused is presumed fit to stand
    trial, that presumption can be displaced upon a balance of probabilities:
Criminal
    Code
,
s. 672.22
.
The procedure by which to deal with the
    issue of fitness is governed by Part XX.1 of the
Criminal Code
. The
    issue of fitness may be raised by either party or by the trial judge: ss. 672.12,
    672.23
.
As fitness can change over the course of a proceeding, there is
    no cap placed upon the number of fitness assessments that may be ordered in any
    given case. Likewise, there is no cap on the number of fitness hearings that
    may have to take place.

[44]

Proceeding against a person who is not mentally
    present at the proceedings is akin to proceeding against a person who is not
    physically present at the proceedings. It has the effect of excluding that
    person from the proceedings. While courtroom efficiency is a laudable goal, it
    is not to be achieved at all costs. Where fitness concerns arise, they must be
    addressed. There is nothing irresponsible about halting proceedings to take
    steps to ensure that the subject of those proceedings is present in mind.

[45]

The record in this case is replete with indicia
    calling for at least an inquiry into fitness. The hearing judge maintained the
    ultimate responsibility for ensuring the fairness of the proceedings. Although
amicus

could have raised the issue with the hearing judge, equally, the hearing
    judge could have raised the issue of her own accord. For that matter, Crown
    counsel could also have raised the issue. Yet no one did.

[46]

The October 1, 2009 fitness report suggested
    that Ms. Walker was currently  fit to stand trial. Of course, the report was
    authored in the wake of Ms. Walkers first guilty plea and came before the
    Crown had definitively decided to pursue a dangerous offender designation. Ms.
    Walker would not be declared a dangerous offender for another two and a half
    years after that report was authored.

[47]

Even if the original judge had found Ms. Walker
    fit on the basis of the October 2009 report, there were numerous signs during
    the course of the proceedings that should have raised concerns about a change
    to that status. A few examples will illustrate the point:


(i)

On the first day before the hearing judge, after
    being clearly told that if she chose to plead guilty the matter would be
    remanded, Ms. Walker expressed through
amicus
that she wanted to be
    sentenced that day. She did not seem to comprehend what the hearing judge had
    tried to impress upon her: by pleading guilty, she was embarking upon a
    potentially very long journey before a sentence would be imposed.


(ii)

A few days after pleading guilty, Ms. Walker
    seemed confused, expressing frustration that she was being prevented from
    pleading guilty and threatening not to come back to court as she had been in
    custody since March of 2009 for self-defence. She did not seem to appreciate
    that she had already pled guilty.


(iii)

Shortly before the evidentiary portion of the
    dangerous offender proceeding began, Ms. Walker seemed confused about what was
    about to take place at the hearing. The hearing judge told her that the Crowns
    application was being adjourned to May 30, 2011, at which point Ms. Walker
    asked, On the dangerous offender? The hearing judge said: Yes, the Crown is
    applying that you be designated as a dangerous offender, and I expect that the
    evidence will commence on that day. Ms. Walker responded in a confused
    fashion: like I mean  like sentence stuff, I mean its all done, and I can do
    my time? It is unclear whether Ms. Walker understood the potential outcomes of
    the dangerous offender application.


(iv)

At the conclusion of the first day of the evidentiary
    portion of the hearing, Ms. Walker expressed surprise and confusion as to why
    the Crown was eliciting evidence about past conduct. She thought that the
    witnesses would be testifying about what had happened during the stabbing
    incident that she had pled guilty to about 18 months before.


(v)

Over two weeks into the evidentiary portion of
    the hearing, Ms. Walker again expressed confusion about what was happening. She
    stated that she had already pled guilty for the incident and wanted to know
    why are we talking about the misconduct, because its all done and over with,
    you know. Thats not going to change anything about my charge.

[48]

These excerpts provide some examples of Ms.
    Walkers apparent failure to grasp the nature and object of the dangerous offender
    proceeding. She did not seem to understand the essential nature of what was
    happening around her, the reason for assessing her past acts, or that a life
    sentence was a very likely result of that proceeding. While she was often
    misbehaved, that misbehaviour was frequently linked to expressions of
    bewilderment about why there was so much attention cast upon her past conduct.

[49]

Indeed, nearing the point in the dangerous
    offender proceeding when Ms. Walker would draw a line in the sand, refusing to
    return to court, she had a full breakdown in court. The hearing judge
    interrupted the Crowns submissions on Ms. Walkers prior acts and asked Ms.
    Walker whether she was able to follow whats going on. Ms. Walker replied,
    [n]ot anymore and asked the judge to cancel what she had testified to,
    saying she had been stupid to testify.

[50]

Dr. Gojer was the psychiatrist retained by
amicus

to assess Ms. Walker. He prepared a report for use at the dangerous
    offender proceeding. The respondent relies upon a single, unsupported comment
    in Dr. Gojers report, where he said that there are no issues with respect to
    fitness to stand trial or criminal responsibility, as proof that Dr. Gojer
    found Ms. Walker fit. In my view, if Dr. Gojer meant that he came to a
    determination that Ms. Walker was fit and criminally responsible, he provides
    no support for those conclusions. Indeed, on one reading of the sentence, Dr.
    Gojer may have simply been commenting on the fact that he was not asked to
    opine on those issues.

[51]

In any event, Dr. Wilkie, the psychiatrist whom
    the Crown retained for the dangerous offender hearing, also made a comment
    about fitness in the report that she prepared for use at the hearing. Dr.
    Wilkies report pointed out that, although she had not been asked to opine upon
    fitness, Ms. Walker seemed to believe that she had already been sentenced with
    respect to the index offenses and that therefore the current assessment process
    was redundant. Nothing could be further from the truth. Ms. Walker had not
    been sentenced on the index offences and much turned on Dr. Wilkies
    assessment. This was yet another signal that Ms. Walkers fitness may have been
    in issue.

[52]

I make no determination as to whether Ms. Walker
    was fit or not. What is critical for the purposes of this appeal is that a
    self-represented, mentally complex individual was before the court saying
    things that should have raised concerns about whether she was mentally present
    at the most important criminal proceeding she could face, one that could
    determine how she would live the rest of her life. This case cried out for the
    issue of fitness to be addressed.

[53]

I close on this issue by noting a jurisdictional
    point that was not raised by the parties. Sections 2 and 672.23(1) of the
Criminal
    Code

refer to fitness being determined before a verdict is
    rendered. That language has given rise to a jurisprudential discussion about
    whether the fitness provisions within the
Criminal Code

are
    available for use only up to the time of a finding of guilt. If so, an issue
    arises as to the jurisdictional basis upon which to assess and determine
    fitness after a finding of guilt has been made.

[54]

The authorities agree that, where fitness
    concerns arise after a finding of guilt has been made, the proceedings cannot
    continue until the accuseds fitness has been assessed and determined. Some
    have suggested that jurisdiction at the sentencing stage lies in the common law;
    others have suggested that it lies in the
Canadian Charter of Rights and
    Freedoms
; and still others have suggested that it lies in reading into the
    relevant statutory provisions by way of affording a constitutional remedy:
R.
    v. R.M.P.
, 2019 ONSC 1416;
R. v. Nehass
,
2016 YKSC 63;
R.
    v. Jaser
,
2015 ONSC 4729;
Canada (Attorney General) v. Balliram

(2003), 173 C.C.C. (3d) 547 (Ont. S.C.);
R. v. Morrison
,
2016
    SKQB 259, 31 C.R. (7th) 362, 363. See also: Richard Schneider and Hy Bloom,
Fitness
    to Stand Trial
, (Toronto: Irwin Law Inc., 2018), at pp. 46-49.

[55]

It is beyond the scope of this judgment to
    settle on the precise jurisdictional route to a fitness hearing after a finding
    of guilt has been made. We have not been asked to do so. Indeed, the respondent
    does not oppose this ground of appeal on the basis that the hearing judge was
    without jurisdiction to address fitness at the dangerous offender proceeding. In
    my view, the respondent is right not to have opposed on that basis.

[56]

Individuals have as much right to be present in
    mind at proceedings determining their liberty as they have a right to be
    present in mind at proceedings determining their culpability. The dignity and
    fairness of our justice system requires that to be so:
Taylor
,
at
    p. 338.

[57]

I am satisfied that, even if the
Criminal
    Code

provisions are not available for a fitness hearing after a
    finding of guilt has been made, a proposition that I should not be taken as
    endorsing, there are sufficient jurisdictional alternatives in place that would
    have permitted the issue to be explored.

[58]

Considering the record as a whole, I have arrived
    at the conclusion that Ms. Walker fitness was a live issue during the
    proceedings. Ultimately, Ms. Walkers fitness was the hearing judges
    responsibility. The hearing judge erred by failing to take appropriate steps to
    determine whether Ms. Walker was present in mind.

The role of amicus curiae in complex cases involving
    self-represented accused with mental, behavioural and/or cognitive challenges

[59]

The appellant submits that the dangerous
    offender proceeding was also unfair because
amicus curiae
: (a)
    conceded the admission and use of psychiatric records to prove prior violent
    acts; (b) failed to advocate for an adequate substitute for Ms. Walkers
    presence in court; and (c) joined Crown counsel in advocating for a finding of
    dangerousness and an indeterminate sentence. In light of the appellants suggestion
    that
amicus curiae

was central to the alleged unfairness of the
    proceeding, I will start by discussing the role assigned to
amicus

in
    this case.

[60]

Judges have an overarching duty to protect the
    fairness of the proceedings before them. In the case of self-represented accused,
    there is a heavy onus placed upon judges to provide them with assistance:
R.
    v. Richards
,
2017 ONCA 424, 349 C.C.C. (3d) 284, at para. 112. That
    obligation arises from the judges role as the ultimate guardian of fair
    proceedings.

[61]

Judges are frequently called upon to perform
    difficult balancing exercises: preserving their judicial roles as neutral and
    objective deciders, while at the same time assisting self-represented accused
    with advancing full answer and defence. In rare situations, despite a judges
    best efforts, he or she will not be in a position to alone ensure the fairness
    of a proceeding. In those situations,
amicus curiae

may be
    required to assist the court in meeting that obligation.

[62]

It is a self-evident truth that our justice
    system works best when a judge can dispassionately and objectively take into
    account opposing views advanced through the adversarial process. As noted by
    Doherty J.A. in
R. v. Joanisse

(1995), 102 C.C.C. (3d) 35 (Ont.
    C.A.), at p. 57, leave to appeal refused, [1996] S.C.C.A. No. 347: The
    adversarial process operates on the premise that the truth of a criminal
    allegation is best determined by partisan advocacy on both sides of the case
:
U.S. v. Cronic
, 104 S. Ct. 1039 (1984),
per
Stevens J.,
    at p. 2045.

[63]

In criminal proceedings, a lawyer always
    represents the Crown. Not so with the accused. This can create enormous
    challenges in complex cases involving self-represented accused with mental,
    behavioural, and/or cognitive challenges. In these types of situations, the adversarial
    process upon which the strength of our justice system is predicated risks
    losing much of its force. Accordingly, in complex cases where an accused person
    is adamant about conducting the defence personally, but is hopelessly
    incompetent to do so, the court may need the assistance of
amicus curiae

to meet the courts obligation to protect the fairness of the proceedings:
R.
    v. Imona-Russell
,
2019 ONCA 252
,
145 O.R. (3d) 197,

at
    para. 72;
R. v. Jaser
, 2014 ONSC 2277, at para. 35 (

Jaser
    (2014)
).

[64]

It was clear from the outset that Ms. Walkers
    circumstances, combined with the complexity of the proceedings, could result a
    miscarriage of justice:
Jaser (2014)
, at paras. 35-36;
R. v. Ryan
,
2012 NLCA 9, 318 Nfld. & P.E.I.R. 15, at para. 105. Considering the
    constellation of factors at work, it is understandable that the hearing judge
    concluded that she would need the assistance of
amicus curiae

to
    help her with the important task of ensuring the fairness.

[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), 232 C.C.C. (3d) 13, at paras. 42-44, 59,
    62. As Rosenberg J.A. put it in
R. v. Samra

(1998), 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:
Ontario
    v. Criminal Lawyers Association of Ontario
, 2013 SCC 43, [2013] 3 S.C.R.
    3, para. 117,
per

Fish J. (dissenting but not on this point) [
CLA
].

[66]

Under the appointment order in this case,
amicus

was to undertake the following:

to receive all relevant Crown disclosure on
    behalf of the accused;

to advise the accused about points of law and
    legal issues;

to discuss legal issues with the Crown on
    behalf of the accused;

to speak to the court on behalf of the accused
    in relation to legal issues

to conduct cross-examinations of Crown
    witnesses [and to provide]

such other
    assistance to the court as the court may approve.

[67]

At times throughout the proceedings, the hearing
    judge also made clear what her expectations were of
amicus
. A few
    examples suffice:


(i)

I think what I need to do is just clarify your
    position as
amicus
. [O]bviously, get instructions from Ms. Walker and
    essentially act as her counsel, which isnt the traditional role of an
amicus
.


(ii)

I recognize that you are taking on more of an
    expanded role in that you are seeking instructions from Ms. Walker and
    essentially advocating for Ms. Walker, but as also
amicus
for me, and I
    appreciate that.


(iii)

I have asked that you essentially in your role
    as
amicus
act as counsel.


(iv)

I
recognize

that
youre
amicus
and not counsel, although, as Ive said many times, my expectation is that
    youll, obviously, act as counsel where you attempt to receive instructions and
    represent her.


(v)

I had tried to establish what I expect of

[
amicus
]

which is more than just simply helping me, but also, given the serious
    nature of this matter  to ensure that due process and Ms. Walkers interests
    are fairly represented.

[68]

Although the parties did not raise the point, I
    pause to note that some might suggest that the role that
amicus

was
    appointed to in this case was inconsistent with the views expressed in
CLA
,
where both the majority and dissenting opinions cautioned against
amicus

filling the role of defence counsel: at paras. 50-55,
per
Karakatsanis
    J., 114-21
per

Fish J. (dissenting but not on this point). As
    noted in the majority reasons, where the terms for the appointment of
amici

mirror the responsibilities of defence counsel, they blur the lines between
    those two roles, and are fraught with complexity and bristle with danger: at
    para. 50.

[69]

Among other things, both the majority and dissenting
    opinions cautioned that appointing an
amicus

as defence counsel
    could have the effect of improperly imposing a lawyer upon an accused who has
    the right to be self-represented:
CLA
,
at paras. 51-52, 55,
per

Karakatsanis J., 116,
per

Fish J. (dissenting, but not on
    these points);
Imona-Russell
,
at para. 67.  Importantly, it was
    left entirely up to Ms. Walker whether she wished to speak with
amicus

or not. At times she communicated with
amicus
and at other times
    she refused to do so. Indeed, for a short period of time, she retained
amicus

as her lawyer, only to discharge her a few days later. After being
    discharged,
amicus

went back to her original role as
amicus
.

[70]

Both the majority and dissenting opinions in
CLA
also emphasized that the essence of an
amicus curiaes

appointment
    lies in his or her duty to the court, a duty that will sometimes require
    submissions that are unfavourable to an accused. In those types of situations,
    a tension could arise if
amicus

was really acting as a defence
    counsel:
CLA
, at para. 53,
per

Karakatsanis J., para.
    118
per

Fish J. (dissenting, but not on this point.)

[71]

Although the hearing judge may have expressed
    the matter differently had the guidance of
CLA

been available
    for consideration at the time of the proceeding appealed from, at its heart,
    the essence of the
amicus

appointment in this case was
CLA

compliant. The core purpose of the appointment was to assist the court by
    providing a perspective that Ms. Walker was simply incapable of providing
    herself; a perspective that was meant to go some distance to restoring the balance
    within the adversarial process of this serious criminal proceeding: Ian Carter,

A Complicated Friendship (2008) 54 C.R. (6th) 89, at p. 98. This is entirely
    consistent with the description of
amicis

role as offered 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
amicuss
sole
    client is the court, and an
amicuss
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 accuseds 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.]

[72]

The
amicus
role in this case was not
    to help the court at large. The court did not need help at large. Nor was it to
    assist in advancing submissions already before the court through the capable
    assistance of experienced Crown counsel. Rather, the court needed help in
    safeguarding the fairness of a highly complex proceeding where an accused with
    mental, behavioural, and cognitive challenges was without an advocate in the
    courtroom. In short, the role was to balance out the courtroom and provide a
    perspective that the court was necessarily lacking, one that nicely dovetailed,
    as an incidental result, with the best interests of Ms. Walker.

[73]

Amicus
was
    handed and accepted that task. The proper execution of her role was fundamental
    to the fairness of the proceedings. Unfortunately, that did not happen.

Fresh Evidence Applications

[74]

The respondent maintains that the appellant is
    effectively making an ineffective assistance of counsel claim. Accordingly, the
    respondent suggests that, like allegations involving the performance of
    counsel, this court should receive an affidavit from
amicus
explaining
    her conduct:
R. v. Archer

(2005), 203 O.A.C. 56 (C.A.)
;
R.
    v. G.D.B.
, [2000] 1 S.C.R. 520, at paras.
26-35.
    That affidavit has been produced and extensively cross-examined upon.

[75]

Ms. Walker resists the admission of the respondents
    fresh evidence. She says that the respondent has mischaracterized her claim. Ms.
    Walker maintains that although the actions and inactions of
amicus

may
    have contributed to unfairness, resolving whether there was a miscarriage of
    justice in this case has nothing to do with assessing the performance of
amicus

through the lens of an ineffective assistance of counsel claim.
    Specifically, she argues that this court is not being asked to consider the
    first prong of such a claim, whether the lawyer fell below the standard
    expected of reasonably prudent counsel:
R. v. Gorburn
,
2017
    ONCA 807, 400 C.R.R. (2d) 103, at para. 7;
R. v. Stark
,
2017
    ONCA 148, 347 C.C.C. (3d) 73, at paras. 12-14.

[76]

While I agree that this appeal does not raise a
    classic ineffective assistance of counsel claim, I would admit the fresh
    evidence elicited by the respondent. I agree with the respondent that the bulk
    of the appellants position on appeal is inextricably linked to the actions and
    inactions of
amicus
. While it is true that the performance criteria
    within the ineffective assistance of counsel framework does not technically apply
    in this case, that does not make the fresh evidence inadmissible. In the
    somewhat unique circumstances here, and as a matter of fairness to counsel
    whose competence has been impugned, justice requires that she be permitted to
    explain why certain positions said to have undermined the fairness of the
    proceedings were taken. In these unusual circumstances, I would admit the respondents
    fresh evidence.

[77]

The appellant says that if the respondents
    fresh evidence is to be admitted, then the court should also accept her fresh
    evidence. The appellant proffers a letter prepared by senior counsel at the criminal
    bar, expressing what is said to be an expert opinion on the general role of
amicus
    curiae
in criminal cases and specifically opining upon whether that role
    was fulfilled in this case.

[78]

I would not admit this fresh evidence. I agree
    with the respondent that the opinion is unnecessary to the just resolution of
    this appeal. As a general rule, opinion evidence is inadmissible. It will only
    become admissible where, among other things, it is necessary to the litigation:
R. v. Abbey
, 2017 ONCA 640, 140 O.R. (3d) 40, at paras. 46-55;
R. v.
    Abbey
,
2009 ONCA 624, 97 O.R. (3d) 330, at para. 93, leave to
    appeal refused, [2010] S.C.C.A. No. 125;
White Burgess Langille Inman v.
    Abbott and Haliburton Co.
,
2015 SCC 23, [2015] 2 S.C.R. 182, at
    paras. 16-24; and
R. v. Bingley
, 2017 SCC 12, [2017] 1 S.C.R. 170, at
    para. 15. This court is well positioned to determine the proper function of
amicus
    curiae
and apply those principles to
    the factual backdrop of this case.
There is simply no need for an
    expert opinion to assist in that task.

Admission of the records to prove prior acts
    of violence

[79]

The appellant had a short criminal record that,
    by itself, may not have sustained a dangerous offender finding or the
    imposition of an indeterminate sentence. In fact, it consisted of just one
    prior act of physical violence, an aggravated assault for which she was
    sentenced to a single day in custody in addition to 263 days of pre-sentence
    custody. She also had three convictions for uttering threats, one for breach of
    probation and one for mischief under $5,000.

[80]

Accordingly, Crown counsel determined that it
    was necessary to prove over 40 other prior acts of threatened and actual
    violence on the part of Ms. Walker through
viva voce

evidence
    and numerous records from the multiple psychiatric institutions where Ms.
    Walker was frequently involuntarily detained.

[81]

The records largely came from the Centre for
    Addiction and Mental Health (CAMH), Whitby Psychiatric Hospital, St. Josephs
    Hospital, and St. Michaels Hospital. Those records formed the sole basis upon
    which the Crown sought to prove approximately 20 prior acts of violence and
    threatening conduct. What follows are two examples of the types of entries
    relied upon:

CAMH Notes, September 3, 2003
 2105  Pt. remains in 4 pt. restraints [illegible] checked pt. @
    2045. Pt. remains awake, pulses all present, extremities pink + warm to touch.
    At times, pt. can be heard singing we all live in a fucking yellow submarine
    and Im going to kill you, Im going to punch you. in a singing voice. At
    present, pt. is resting in bed with 4 pt. restraints.

Whitby Psychiatric Hospital, September
    13, 2004
 1315  Before staff could approach pt.,
    Krista smashed the phone, knocking it off the wall mounting.1330 Pt.
    approached to escort into quiet room. Krista was blocking her doorway, refusing
    interaction, calming + defusing ineffective. Pt. carried into seclusion, pt.
    attempting to punch and kick @ this time, spitting in staff face .1336
    Received order from Dr. McDonald for seclusion + 4 pt. restraints for increased
    agitation + aggressive behaviour  1645 Pt approached [illegible] stat
    medication to help her settle. Krista continued to state Im not taking any
    fucking meds, Im going to fucking kill you  Pt. held while receiving medication,
    [illegible] pt. bucking, + shaking during this time. Calming ineffective, pt.
    attempting to spit at staff when exiting the seclusion room stating, youll
    all be fucking sorry 

[82]

Crown counsel at the hearing quite fairly raised
    concerns about the admissibility of the records for the truth of their
    contents. She alerted the hearing judge to the fact that in the usual course
    the defence would object to a number of these entries, or at least thered be
    some discussion between the defence counsel representing Ms. Walker, or the
    accused would have a position in terms of the entries.

[83]

Around the time that the admissibility of the
    psychiatric records was first raised, and admissibility was being discussed,
amicus

mentioned that there may be
mens rea

issues respecting some
    of those acts, and some were committed when Ms. Walker was still a youth and
    could have been committed in frustration.

[84]

Closing in on the end of the dangerous offender
    hearing, the Crown made submissions respecting the prior acts that she
    suggested had been proven. Proof of many of those acts rested exclusively upon
    what was contained in the psychiatric records. Despite the hearing judge encouraging
amicus

to advance submissions about the records, the
amicus

ultimately chose not to make any submissions, suggesting that she had no
    instructions to that effect. She simply agreed that the Crown had stated the
    law correctly, acknowledging that the acts had been proven and that it was up
    to the hearing judge to determine the weight to place upon the acts.

[85]

In a ruling made shortly after, the hearing
    judge noted that
amicus

and Ms. Walker had not challenged the
    use that could be made of the psychiatric records and concluded that the
    records proved violence and aggression on the part of Ms. Walker.

[86]

We have not been asked to resolve the
    admissibility and use issues. Nor could we decide those issues on the truncated
    record that has been provided. Suffice to say a dangerous offender proceeding
    is part of the sentencing process and is governed by the same sentencing
    principles, objectives and evidentiary rules:
R. v. Williams
,
2018
    ONCA 437, at para. 48, leave to appeal requested, 38646;
R. v. Boutilier
,
2017 SCC 64, [2017] 2 S.C.R. 936, at para. 53.

[87]

The role of
amicus

was to assist
    the court in ensuring the fairness of the proceeding. While it was important to
    communicate with Ms. Walker and receive her input, against the complexity of
    the situation, there needed to be adjudicative fairness in the adversarial
    process. This required that there be a counterbalance to the force of the
    prosecutions case. This does not mean that
amicus

was required
    to advance frivolous, time-consuming and unmeritorious arguments. Nor does it
    mean, though, that
amicus

had to remain silent simply because
    she had no instructions from Ms. Walker. Quite the contrary.

[88]

While I do not suggest that this appeal turns on
    the failure of
amicus

to take a position on the records, the
amicus

silence on the point is indicative of the failure to comprehend the role to
    which she was assigned; a role that was central to the fairness of a proceeding
    involving a self-represented individual who was wholly incapable of protecting
    herself.

[89]

Without deciding the point, I simply observe that
    this is not a situation where there was nothing for
amicus

to
    say about the admissibility and use of the records. For instance, on the topic
    of how the records should or should not be used, the
amicus

could
    have raised the fact that: the records were created during Ms. Walkers
    involuntary admissions to psychiatric facilities; some of her alleged comments
    were made in the context of efforts to chemically or physically restrain her;
    it is unclear whether some of her alleged comments are first or second hand or
    even more distant hearsay; and it is unclear whether some of the comments are
verbatim

accounts of what was overheard.

[90]

The
amicus

treatment of the
    hospital records is an example of the general failure of the
amicus

order to achieve its desired effect: to restore some balance in the
    courtroom.

Excusing Ms. Walker from the Proceedings

[91]

Leading up to the evidentiary portion of the
    dangerous offender proceeding, Ms. Walker only attended court on a sporadic
    basis. At times she simply refused to be taken from the cells to the courtroom.

[92]

The hearing judge was alive to the need to
    ensure that appropriate systems were in place in the event that Ms. Walker
    refused to attend the courtroom once the evidentiary portion of the proceeding
    commenced. The hearing judge made repeated references to having a video link
    put in place so that, even if she refused to come to court, Ms. Walker could at
    least see and hear what was happening in the proceeding. The hearing judge
    encouraged counsel to consider arrangements for a video link. The hearing judge
    also looked into the matter. No such arrangements were made.

[93]

Although it was sometimes rocky, Ms. Walker
    attended court for the first couple of weeks of evidence. The matter was
    adjourned from June 23, 2011 for a number of months. When the matter returned
    on September 16, 2011, Ms. Walker made it clear, in no uncertain terms, that
    she was no longer prepared to attend court for the hearing.

[94]

Ultimately, the hearing judge offered that Ms.
    Walker might have to be excused from the courtroom and raised the fact that she
    had previously attempted to look into conducting this hearing while Ms. Walker
    is at Vanier [the institution where Ms. Walker was detained] by way of video
    conference. Ms. Walker suggested that if this happened, she would break the
    fucking video camera.

[95]

On the next court day, while the authorities were
    able to get Ms. Walker to the courthouse, she refused to attend court. Having
    spoken to Ms. Walker,
amicus

expressed the view that it was
    too hard for her and that Ms. Walker could not psychologically  handle it.

[96]

The hearing judge expressed the view that Ms.
    Walker should not be shackled and dragged to court. I pause to note that this
    was an entirely reasonable and appropriate decision. By this time in the
    proceeding, it was clear that Ms. Walkers mental state was such that she
    presented a risk to herself and to anyone dealing with her. The hearing judge
    was properly concerned for the safety of all. In these circumstances, it was
    sensible to invoke s. 758(2)(b) of the
Criminal Code
, permitting an
    accused who is the subject of a dangerous offender hearing, to be out of court
    during the whole or any part of the hearing on such conditions as the court
    considers proper. The real issue was how to protect procedural fairness with
    Ms. Walker physically absent from the courtroom.

[97]

The appellant contends that proper procedural
    protections were not put in place.

[98]

The hearing judge was informed that a video link
    could not be accommodated within the courthouse. Although a video link to
    Vanier was a good option, the hearing judge felt that she could not order
    Vanier to do that without a formal application and the hearing of evidence. In
    response,
amicus

said that Ms. Walker had told her if a video
    link was arranged, she would not listen.
Amicus

said that she
    felt she was in a position where I really have to act in accordance with what
    she directs, and what her choice is.

[99]

At prior points it had been suggested that if a
    video link was required, it might be necessary to move courthouses, and this
    could cause a delay of up to a year. Rather than embarking upon an inquiry into
    the available options for a video link,
amicus

suggested that
    the best course was to permit Ms. Walker to be absent from the proceeding and
    simply provide her with transcripts of what happened in her absence:

Im suggesting
    that we just proceed on the basis of transcripts. That gives her the
    opportunity to participate if she changes her mind. She can have access to the
    transcripts at the jail and its unfortunate, but if she  She is fit, so this
    choice seems to be a legitimate choice  not to participate, and I think all
    things in balance, that seems to be the  procedure thats most in accordance
    with what she wants.

[100]

The failure to pursue the video option seems at least partially predicated
    on
amicus

belief about Ms. Walkers fitness, rendering her
    choice to be absent from the proceeding a legitimate choice. While I will
    not re-tread the fitness issue, I pause to emphasize that the
amicus

submission in that regard stands in stark contrast with aspects of the
    record.

[101]

Ultimately the matter proceeded in Ms. Walkers absence and without
    her being linked to the proceedings by way of video. This meant that Ms. Walker
    was not present in court or by way of video to hear the evidence of a number of
    witnesses, including the expert psychiatrists who opined on Ms. Walkers
    dangerousness and inability to be controlled in the community.

[102]

The appellant contends that
amicus

undermined the
    fairness of the proceeding by failing to bring an application for a video link.

[103]

The respondent says that video linking the appellant into the
    proceeding was considered, but it was not a viable option. Among other things,
    the respondent points out that there was a suggestion that if a video link was
    pursued, it could have delayed the proceeding. Ms. Walker knew that she could
    return to the courtroom if she wished to do so. Everyone struggled in the face
    of Ms. Walkers misbehaviour, and, therefore, the respondent submits, the path
    chosen was a reasonable one.

[104]

While I would not suggest that a video link is the only way that
    procedural fairness can be achieved when an offender is absent from a dangerous
    offender proceeding, at a minimum, fairness requires that this option be carefully
    explored. This is particularly true in the case of a self-represented accused. Although
    counsel should have assisted in that endeavour by doing as the hearing judge
    had asked, it was the hearing judge who was responsible for the fairness of the
    proceeding.

[105]

This was the year 2011. It is somewhat difficult to imagine how
    arrangements could not have been made to provide a video link.  Notably, on the
    very last day of court before judgment was given, a video link was in fact
    arranged so that the court could inquire into whether Ms. Walker wished to call
    evidence or make any closing submissions. She declined to do so.

[106]

Although Ms. Walker was asking not to be video linked into the
    proceeding, the proceeding had the potential to (and did) determine her entire
    future. Stronger efforts to keep this self-represented accused present  at
    least by video  should have been made.

[107]

At a minimum, fairness required that there be a proper exploration
    of the potential to use a video link.  If this meant an application was needed
    and evidence needed to be called, that is precisely what should have happened. Lack
    of facilities and delay do not relieve the state of its constitutional
    obligation to provide an accused with procedural fairness.

[108]

Giving transcripts prepared after-the-fact to a self-represented
    accused, particularly one who has been assessed with such profound cognitive
    challenges, does not imbue one with confidence that Ms. Walker remained a part
    of her proceedings once excused from the courtroom. Fairness required more.

The amicus closing submissions

[109]

The patent unfairness of the proceedings took complete form during
    the closing submissions of counsel, without the self-represented accused
    present or in a position to hear what was being said. I say patent unfairness
    because, in my view, what happened next would alone drive the result of this
    appeal.
Amicus

argued in favour of Ms. Walker being found a
    dangerous offender and an indeterminate sentence being imposed.

[110]

Advocating against Ms. Walkers interests represents the antithesis
    of the role that
amicus

was appointed to perform. She was not appointed
    to bring her own personal views to bear on how the proceeding should be
    resolved. She was appointed to perform a specific role: to restore some balance
    within the adversarial context of the proceeding. To return to the words of
    Fish J. in
CLA
, her purpose [was] to provide the court with a
    perspective it [was] lacking. Her closing submissions not only failed to
    fulfill that purpose, but undermined it altogether.

[111]

The written submissions of
amicus

contained numerous
    concessions that the legal indicia for a finding of dangerousness had been met.
    For instance,
amicus

wrote that: It is conceded that the crown
    has proven a pattern of repetitive behaviour by the respondent of which the
    offence for which she has been convicted forms a part.

[112]

The written submissions also expressed a dim view of Ms. Walkers
    mental condition. For instance,
amicus

opined that it is hard
    not to regard the appellants suicidal ideations and threats of self-harm as
    cases of crying wolf. In a literary flourish,
amicus

continued:

[Ms. Walker] is
    oppositional with respect to any suggestion of treatment. She has always
    spurned psychological help. She regards herself as sufficiently normal as not
    to need treatment or counselling. Indeed, she presents as someone whose pride
    will not allow her to acknowledge any such need. Much of her rage is against
    others and appears to stem from them not regarding her as normal; it may be
    that her greatest passion is to be so regarded. [Ms. Walkers] behaviour can be
    viewed in operatic terms. [Ms. Walker]
[] takes extreme offence at any
    whisper of insult. She appears never to have hardened herself to the insults
    she feels when regarded as a retard. She has a despots appetite for revenge.
    She would have anyone who looked at her the wrong way executed and would prefer
    to administer the execution herself. What she lacks is any of the cunning or
    subtlety of Richard III. Indeed the delivery of her explicit threats is
    suggestive of a complete lack of effective strategy in carrying them out.
[Emphasis
    added.]

[113]

The written submissions were accompanied by oral submissions of the
    same ilk:

Ms. Walker is just such a sad case. Just to
    cut to the chase here, as my friend has pointed out, there are, there is hope,
    but hope only if she wants to help herself. And that seems to be the vicious
    loop that shes caught in. She has a bad deal with respect to the hardware that
    shes been dealt.

She seems to have a software in her brain that
    caught her up in vicious loops that she cant escape. We wish that there was a
    pill she could take and the rages would disappear and she would become
    cooperative. Unfortunately, there isnt. I guess the question would be if there
    was, if somehow she could be given a treatment order, but we dont even have
    the pill, we dont even have the treatment.

And its bad because you know shes going to
    have, Your Honour is going to have to find her a dangerous offender, thats
    conceded. And its supposed to be to protect the public, but in fact it will punish
    her because jail is punishment.

And we suspect, I think all of us, that she
    can no more help herself than an amputee can create a new limb. Something has
    got to sort of cut through the vicious cycles that shes caught in, in order
    for her to be salvaged in some way.

but its clear
    that theres no other solution for Your Honour.

[114]

There can be no mistake about it.
Amicus

joined
    Crown counsel in advocating in favour of the dangerous offender finding and
    indeterminate sentence imposed.

[115]

That position was taken against the backdrop of:


(i)

Ms. Walker being absent from the courtroom and
    not present by way of video to overhear what
amicus
was saying;


(ii)

Ms. Walker having been repeatedly told by the hearing
    judge, as previously reviewed in these reasons, that
amicus
was there to
    help her;


(iii)

amicus
spending
    hours with Ms. Walker, seemingly taking instructions from her; and


(iv)

Ms. Walker actually having retained
amicus
as
    her counsel, mid-way through the proceedings, forming an actual
    solicitor-client relationship for a few days.

[116]

The respondent maintains that there was nothing wrong with
amicus
advocating as she did. According to the respondent,
amicus

was
    merely acknowledging the obvious: the Crowns case was an overwhelming and
    insurmountable one.

[117]

The respondents position is consistent with what
amicus

said during her cross-examination on the fresh evidence application. She
    acknowledged that she had no instructions from Ms. Walker to concede anything
    and that Ms. Walker did not see her written submissions.
Amicus
position was based upon her view that there was no credible argument that could
    be made against the imposition of an indeterminate sentence. She personally
    thought that Ms. Walker was dangerous.

[118]

Undoubtedly,
amicus

misunderstood her role. She had
    been appointed to assist the hearing judge in protecting the fairness of what
    was a complex and challenging proceeding.
Amicus

was appointed
    because of the clear need to protect Ms. Walkers interests and to balance out
    a highly skewed adversarial process. Rather than performing that role, she
    advocated against Ms. Walker and in a manner entirely antagonistic to Ms.
    Walkers best interests.

[119]

It was the responsibility of
amicus

to say what
    could be said on behalf of Ms. Walker. If she could not find anything to say in
    favour of Ms. Walker, then her obligation was to say nothing that could
    undermine Ms. Walkers interests. If
amicus
could not carry out her
    role, she ought to have so advised the hearing judge and asked to be relieved
    of her role. In the end, Ms. Walker was in a worse position in the context of
    closing submissions than if
amicus

had not been appointed at
    all.

[120]

Whether the Crown had an overwhelming case or not is not the issue.
    Crown counsel was present in the courtroom. Her role was to advance the Crowns
    position. She did not need help in that regard. The hearing judge did not
    require assistance in understanding the Crowns position. Yet, in the absence
    of the accused, in the end, the hearing became a place that looked like there
    were two Crown counsel in the courtroom. That was unfair.

Other Issues

[121]

While the appellant raises other issues, including a suggestion that
    the hearing judge failed to properly consider the imposition of a determinate
    sentence, in light of my conclusions already reached, I need not address those
    other issues.

The curative proviso does not apply

[122]

Section 759 of the
Criminal Code

regulates appeals
    under Part XXIV of the
Criminal Code
, the part pertaining to dangerous
    offenders. The powers of review have been described as being somewhat more
    robust than those found under Part XXI of the
Code
,
dealing
    with regular routes of appeal in indictable matters:
Boutilier
,
at
    para. 81;
R. v. Sipos
,
2014 SCC 47, [2014] 2 S.C.R. 423, at
    para. 26.

[123]

The respondent maintains that, even if there was a fairness or
    appearance of fairness problem in this case, the appeal should be dismissed
    because the evidence of Ms. Walkers dangerousness was overwhelming and the
    conclusions reached by the hearing judge were inevitable.

[124]

In rare circumstances, an appeal from a dangerous offender finding
    or imposition of an indeterminate sentence may be dismissed on the basis that
    there is no reasonable possibility that the result would have been any
    different had no error of law been made:
Boutilier
, at para. 82;
R.
    v. Johnson
,
2003 SCC 46, [2003] 2 S.C.R. 357,

at para. 49;
    and

R. v. Bedard
, 2009 ONCA 678, 247 C.C.C. (3d) 275, at para.
    103. This case is not predicated on an error of law. Rather, it is predicated
    on unfairness arising from a cumulative number of procedural deficiencies,
    including on matters as fundamental as whether the appellant was fit during the
    hearing. That unfairness resulted in a miscarriage of justice that cannot be
    solved by the application of the curative proviso.

CONCLUSION

[125]

The fairness of our justice system is most on display when the
    vulnerable are caught in its grip. While difficulties will sometimes arise
    where an individuals mental, behavioural and/or cognitive conditions interfere
    with the regular processes of the justice system, the justice system must
    respond to those difficulties in a procedurally fair manner.

[126]

For everyone involved this was an intensely difficult case, the
    likes of which are not frequently seen in our court system. Even so, Ms. Walker
    was as entitled to a procedurally fair hearing as anyone else. She did not
    receive one.

[127]

Ms. Walker asks that the dangerous offender finding and
    indeterminate sentence be set aside and a new hearing ordered. For the reasons
    given, I would allow the appeal and grant that remedy.

Released: M.F. September 30, 2019

Fairburn J.A.

I agree. K.
    Feldman J.A.

I agree.
    I.V.B. Nordheimer J.A.


